My law school days are long, long behind me, and my ambition to be a Justice of the U.S. Supreme Court took a hit when I neglected to take the bar exam. So it’s with some caution that I find myself puzzling over the notion that it would be tricky to mount a legal challenge to Sen. Ted Cruz’s right to run for President.
The question is about “standing”—the legal concept that someone has to have skin in the game to go into court with a complaint.
“It is not enough that a person is merely interested as a member of the general public in the resolution of the dispute,” as the Free Dictionary explains. “The person must have a personal stake in the outcome of the controversy.” The Constitution pretty much rules out the idea of courts issuing opinions that don’t involve real “cases” or “controversies”—which means that Donald Trump is off the mark when he thoughtfully suggests that Cruz waltz into court and get a “declaratory judgment” that he is indeed a “natural-born citizen.”
This question popped up—and then popped right back down again—during the short-lived 1968 campaign of Gov. George Romney (he was born in Mexico to American parents), and again in 2008 (John McCain was born in the Canal Zone, a U.S.-controlled strip of Panama). Trevor Potter, then the chair of the Federal Elections Commission, said recently that the FEC was not clear on “who would have standing to bring a legal challenge, and at what stage in the process.” Harvard Law Professor Lawrence Tribe, Trump’s now-favorite legal scholar, raises a similar question in a recent TV appearance.
When it comes to getting candidates kicked off ballots, many jurisdictions take a very broad view of who has a right to try. In New York State, for instance, “the law allows any registered voter who can vote for the candidate to file written objections with the Board of Elections challenging the candidate’s designating petitions.” The fight can then move to the courts. In fact, this is something of a cottage industry in New York, where lawyers specialize in helping clients throw potential foes off the ballot for highly petty reasons—leaving out the middle initial of petition signers’ names, for example.
Chicago has a similar approach—which is why embattled Mayor Rahm Emanuel had to fight all the way to the Illinois Supreme Court to establish that he had been a resident of the city long enough to qualify for the ballot.
OK, but we’re talking about the presidency, not some local judgeship election. Who would have the “standing” to challenge Ted Cruz’s status?
Well, let’s start with a hypothetical. Suppose Arnold Schwarzenegger, bored with his return to acting, decided to run for president. He’s clearly, monumentally, incredibly ineligible: born in Austria to Austrian parents. Undaunted, he gathers enough signatures to qualify for the New Hampshire ballot and submits them, along with his certified check for $1,000 to the Secretary of State’s office—whereupon the more or less permanent holder of that office, Bill Gardner, refuses to put him on the ballot. Suppose, though, Gardner sees the possibility of even more attention showered on his state if he puts Schwarzenegger on the ballot, and he does so.
Is it really hard to figure out who would have “standing” to challenge this decision? The answer is: every other candidate on the Republican ballot, who would argue that he or she would be “irreparably harmed” by having to compete for votes with an ineligible candidate.
The fact that no candidate has challenged Cruz—in New Hampshire or any other state—may simply reflect the idea that it might backfire politically. Or it might reflect that the weight of legal scholarship is on the side of Cruz. There’s no question, though, that between state officials and opposing candidates, there are plenty of ways to pose a challenge, even to a potential president. (Indeed, just recently, the Ohio Secretary of State struck Martin O’Malley from the primary ballot for failing to gather enough signatures to qualify.)
And it may not take a candidate to mount such a challenge. A complainant named Newton Boris Schwartz Sr. has filed a class action in a Houston federal court on behalf of himself and “all eligible Texas and nationally registered eligible and/or qualified voters” in every primary and general election state. (It would take an expansive view of standing to let this case proceed, but judges have wide discretion when it comes to matters never dealt with by the courts ).
If Cruz were to win the nomination, a whole new set of potential legal minefields awaits. In some states, an official—usually the secretary of state—has the authority to decide who is eligible to run. If that official declares that he or she reads the Constitution to require a birth on American soil, then a court fight would obviously follow. Or suppose a Democratic presidential elector—those unknown, faceless people who actually elect the president—argues that her chance to win is being diminished by electors pledged to an ineligible candidate. She might well lose her case—that’s my assumption—but she’s got a strong argument that she has skin in the game.
Apart from the merits, there’s a compelling practical case for permitting such challenges at these stages of the contest. Why? Because the absolute, very worst, catastrophically bad time to bring the case would be after the inauguration. Let’s say it’s April 30, 2017. President Cruz has signed a law defunding Planned Parenthood. The organization, and its clients, bring suit, arguing that the law is void because Cruz does not meet the “natural-born citizen” test. Clearly, Planned Parenthood and those using its services would have standing to bring legal action; they’re obviously affected by that new law. And suppose evidence surfaces that in fact his mom had renounced her U.S. citizenship.
If a court then found that Cruz was not entitled to be president, every action he’d taken—every law signed, every executive order issued, every appointment made—would be null and void. Hello, chaos.
To be clear: My argument here is about who would have the legal standing to be heard in court. On the merits, Cruz’s right to run for president appears clear. Of course, should the case ever get to the courts, one question might prove decisive. If he’s asked how many men there are on a football team, and he says “12,” that’s the end of his campaign.