Natural-born mess: What would it take to kick Ted Cruz off the ballot?

January 15, 2016
Republican U.S. presidential candidate Senator Ted Cruz gestures towards rival candidate businessman Donald Trump (L) as he speaks at the Fox Business Network Republican presidential candidates debate in North Charleston, South Carolina January 14, 2016. REUTERS/Chris Keane

Senator Ted Cruz gestures toward rival candidate Donald Trump (L) as he speaks at the Fox Business Network Republican presidential candidates debate in North Charleston, South Carolina, January 14, 2016. REUTERS/Chris Keane

Donald Trump has resuscitated questions regarding Texas Senator Ted Cruz’s eligibility to serve as president of the United States. Cruz was born in Canada to a Cuban father and an American mother. A recent Trump tweet succinctly pressed the issue: “Sadly, there is no way that Ted Cruz can continue running in the Republican primary unless he can erase doubt on eligibility. Dems will sue.”

The U.S. Constitution requires that the president be a “natural-born citizen” of the United States. Though many contend that being born to an American mother is sufficient, others say only those born on U.S. soil are eligible.

What would a legal challenge to Cruz’s eligibility look like? It’s far more complicated than you might think because it depends on how each state handles his access to the ballot. New Hampshire’s Ballot Law Commission, for example, has already said that Cruz is eligible — at least until a court says otherwise.

Scenario A: Could someone sue to try to keep Cruz off the ballot? Such challenges are unlikely to succeed. A plaintiff must have standing to sue and must show a specific injury rather than a generalized grievance. Voters can’t just complain that someone, somewhere is violating a law — they have to identify an actual harm. Most challenges to candidates’ eligibility end here. Federal courts, for example, threw out dozens of birther challenges to Barack Obama’s eligibility in 2008 and 2012 because voters sued and failed to identify a concrete injury. So, the courts never had to rule that Obama was actually born in Hawaii.

Republican U.S. presidential candidate businessman Donald Trump (L) and Senator Ted Cruz speak simultaneously at the Fox Business Network Republican presidential candidates debate in North Charleston, South Carolina, January 14, 2016. REUTERS/Randall Hill

Donald Trump (L) and Senator Ted Cruz speak simultaneously at the Fox Business Network Republican presidential candidates debate in North Charleston, South Carolina, January 14, 2016. REUTERS/Randall Hill

State courts are not bound by the federal standards and have heard challenges from such voters. But these claims often fail because states are not required to look at a candidate’s qualifications. New Hampshire is an outlier: Many states don’t look at whether a candidate is eligible to be president before placing him or her on the ballot. They accept the paperwork — and happily accept the filing fee — then list the candidate on the ballot. Socialist Workers Party candidate Róger Calero, for example, appeared on several ballots around the country in 2004 and again in 2008 — despite being a Nicaraguan citizen.

Other challenges fail because courts defer to the political process. In a presidential election, one court concluded in a challenge to Obama’s eligibility, it is first left to presidential electors to determine eligibility, and then to Congress when it counts the votes. In addition, candidates may lose elections, which would negate any need for a court to interfere.

Some courts, reluctant to intervene, move particularly slowly and let the election process work itself out.

Scenario B: But what if a state kept Cruz off the primary ballot? What if an election official decided that state law permitted only natural-born citizens to appear on the ballot and concluded that Cruz was ineligible, and thus removed him from the ballot? Or what if a state secretary of state decided to reject votes cast for Cruz in a primary election? Cruz would presumably sue — and he would certainly have standing.

A court may choose to drag its feet and hope that the political process would work itself out. Perhaps, Cruz would drop out of the race before a court reached a decision. But denying voters the chance to vote for an eligible candidate, or refusing to count ballots cast for a candidate, would be a serious harm, and a court would likely weigh in.

A court might simply avoid the harder issue of defining “natural-born citizen” and find reasons to allow him on the ballot. It might conclude that no state law authorizes an election official to scrutinize a candidate’s eligibility, as occurred in some challenges to Obama’s eligibility. Or a court might conclude that a political primary is not binding on the Republican National Convention — since a brokered convention could sort out any prospective nominees’ eligibility questions. A court might also say that this is simply a primary race, not the presidential election itself. So any decisions about his eligibility would be premature.

Accordingly, even if a state left Cruz off the ballot, there are many possible avenues by which a court might order him back on the ballot without addressing whether or not he is a natural-born citizen.

Scenario C: But what if a court does weigh in on Cruz’s eligibility? Unlikely as it might seem, given the many contingencies outlined above, it remains a distinct possibility with a less-than-certain outcome.

Two major positions stand out in the effort to define “natural-born citizen.” Some have argued that the term can only mean a person born within the United States. They cite early British practice before the American Revolution as the principle codified in the text of the Constitution.

Others — more persuasively, in my view — argue that Congress, like the British parliament at the time of the founding fathers, has the power to define who is a natural- born citizen at birth. British and early U.S. practices help demonstrate this understanding.

In 1952, Congress enacted a law granting citizenship to anyone born to an American mother who met a few conditions of domicile in the United States. Cruz is a citizen under that law. And whether he is natural-born turns on whether Congress has the power to declare him natural-born.

How a court resolves this debate is highly uncertain. As courts have generally shied away from resolving disputes about candidate qualifications, judicial involvement here would be truly unprecedented.

Scenario D: Even after all this, there remains one still more potential outcome: a brokered convention. Trump, or some other candidate, might choose to challenge Cruz’s eligibility at the Republican National Convention. Challenges to delegates pledged to support Cruz would claim that such delegates could not vote for an unqualified candidate. And the Republican National Committee would have to sift through these contests, potentially leading to a brokered convention in which no single candidate earned a majority of the delegates’ votes on the first ballot.

That could lead to far greater uncertainty: Who in the party would be able to broker a deal about who should be the Republican nominee? There would also likely be a fresh round of debates on the term “natural-born citizen.” This scenario would be extraordinarily unlikely. But in a high-profile contest between Trump and Cruz, perhaps nothing should surprise us.

20 comments

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“Natural Born”? I guess a C-section baby is out then.

Posted by BettyBoppy | Report as abusive

I’m glad scholars are taking a harder look at this. Can someone be a natural-born Canadian and a natural-born American? I think not. Cruz seems to be hoping that some wordplay will get around the issue.

Posted by ReyJorda | Report as abusive

Ted Cruz’s face make me puke. Is that harm enough?

Posted by brotherkenny4 | Report as abusive

Trump makes me want to vomit, can I sue to keep him off? Looking at him for 4 years as President is going to be killer…

Posted by Dehumanist | Report as abusive

Why did everyone make such an issue of whether or not Obama was born in Kenya? If “natural born” means only one parent is a citizen and you will be too, regardless of where you are born, that whole issue was a moot point. Cruz’s situation is the same. I believe the Constitution is clear. American Presidents must be American born. It will have to be amended to accommodate Ted Cruz’s eligibility.

Posted by CSAS | Report as abusive

there is no record of his parents declaring him an American citizen born abroad with the consulate.

“Ted Dudly Do’Right Cruz”… may truly be, A man without a Country..!

there is no record of his parents declaring him an American citizen born abroad with the consulate.

Maybe this is Why.. Ted Cruz has NO! (Consular Report on Birth Abroad (CRBA) )

State of Delaware Vital Records says,

1970 – Ted Cruz is born in Canada, to two parents who had lived in Canada for at least four years at that time, and had applied for and received Canadian citizenship under Canadian Immigration and Naturalization Laws, as stated by Rafael Cruz.

As a result, US statutes would have voided the prior “green card” status which requires among other things, permanent residency within the United States and obviously, not becoming a citizen of another country during the time frame of the US green card.

http://www.scribd.com/doc/256409078/Cruz -Citizenship-Timeline-documented

Also :Maybe this is Why..his mother appears on Canadian voter roll..

It turns out that both his mother and father appeared on Canadian voter rolls.

Ted Cruz has NO! (Consular Report on Birth Abroad (CRBA) )

Did Cruz’s mother simply tell the electoral official she was a citizen of Canada even thou supposedly she was not naturalized?

Voters List:

Calgary South, Calgary, Alberta, Canada, 1974 federal elections.
http://www.scribd.com/doc/294908081/Vote rs-List

Ted may truly be,a man without a Country..!

Also.Ted Cruz : The plot thickens ..

TED CRUZ IS IN THE U.S. SENATE ILLEGALLY

Ted Cruz remained a legal citizen of Canada from birth in Canada, until he renounced his Canadian citizenship in May of 2014 .

It is an act of fraud to seek any political office in the USA while concealing the fact that you are a citizen of a foreign country.

There remains no authentic evidence or ,”ANY U.S. DOCUMENT OF LEGAL CITIZENSHIP OF ANY TYPE to support the claims that Ted Cruz is a citizen of the United States.”

… There is NONE.!!

(dual citizens have dual papers from both countries)

A Natural Born Citizen has NO dual Citizenship.!

Whether Ted was born Canadian only, or a “dual citizen” of both countries, he is ineligible for the Oval Office in direct conflict with the known purpose and intent of the NBC clause.

Ted knows this .! Ted is a Man without a Country..!

Everything in this article is “fact” backed by “authenticated evidence” and official documentation.

Opinions are B.S. – and, as Ted was a legal citizen of Canada in 2012, without ever disclosing this fact to Texas officials or voters at the time, he ran for a accepted a seat in the US Senate via election fraud.

It is an act of fraud to seek any political office in the USA while concealing the fact that you are a citizen of a foreign country.

// Thx JB.

http://northamericanlawcenter.org/ted-cr uz-is-in-the-u-s-senate-illegally/#.VppS fSorLWL

Posted by Capt-Dax | Report as abusive

Would the courts step into the fray? The Supreme Court, most famously, stepped into the Bush/Gore contest, and very quickly at that. Most likely a state attorney general could request the Supreme Court hear arguments. If Cruz wins Iowa, any candidate could claim harm as well. A court might even intercede before Iowa in order to protect Iowans casting votes so that their vote is “counted”. A vote for Cruz might end up being “thrown away”.

Posted by watcher8 | Report as abusive

Concerning their Presidential status Trump and Cruz both impress me little.

Posted by T.L. | Report as abusive

President Obama was born in Hawaii not Kenya. But I guess you might think otherwise if your brain has been rotted watching Fox News and listening to AM radio.

Posted by notaflatlander | Report as abusive

C-Span had a Harvard Law Professor on their program this morning indicating that Congress already passed the law Cruz needs to win any case challenging his eligibility. The professor said the congressional law defined a child born to a U.S. citizen (who had met some residence requirements) as a “natural born citizen,” and, that this was intended to include children of remotely deployed state department, military, or general civilian personnel.

Posted by hometown | Report as abusive

It gets difficult to have multiple classes of citizens who have different rights by class.

There are many Americans whose parents are in the military or who work for the government who give birth away from home. Are you going to not let them serve?

Afterall the first 7 presidents were not natural born. Washington was a British citizen that Britain classified as a traitor.

Can somebody be a citizen of 2 countries? Yes. Kennedy was a British citizen and Britain says its citizenship cannot be revoked.

Posted by jelasrsen1 | Report as abusive

It does not even matter. Ted Cruz is not going to be President. He is a goofy cry-baby, and perpetual victim.

He offers nothing but more persecution complex. Everyone hates his freedom. Waaaaa.

Posted by Solidar | Report as abusive

Rafael Cruz is not a “natural born citizen” of the US and therefore his is not eligible to become POTUS or VPOTUS. He is a citizen of the US by “statute” because his mother is a US citizen. Rafael Cruz is a natural born citizen of Canada because he was born in Canada. He was a Canadian citizen until June, 2014. That’s when he renounced his Canadian citizenship. And, as a side note: his father, Rafael Cruz Sr., didn’t become a US citizen until 2005. I think that his father was, until that time, a citizen of Cuba.

Posted by IamBAD1 | Report as abusive

Rafael Cruz is not a “natural born citizen” of the US and therefore his is not eligible to become POTUS or VPOTUS. He is a citizen of the US by “statute” because his mother is a US citizen. Rafael Cruz is a natural born citizen of Canada because he was born in Canada. He was a Canadian citizen until June, 2014. That’s when he renounced his Canadian citizenship. And, as a side note: his father, Rafael Cruz Sr., didn’t become a US citizen until 2005. I think that his father was, until that time, a citizen of Cuba.

Posted by IamBAD1 | Report as abusive

“jelasrsen1″ says: “Afterall the first 7 presidents were not natural born. Washington was a British citizen that Britain classified as a traitor.” It seems like you don’t believe in research. “No person except a natural born citizen, or a citizen of the United States at the time of the Adoption of this Constitution, shall be eligible for the office of President…” Section 1 of Article of the United States Constitution sets forth the eligibility requirements for serving as President of the United States.

Posted by IamBAD1 | Report as abusive

I can see that “jelasrsen1″ doesn’t know what he’s talking about. Typical of the GOPtp faithful…

Posted by IamBAD1 | Report as abusive

Cruz is as much a natural born US citizen as he is a natural born Cuban citizen. Other than taking up Canadian citizenship, there was a choice to be made and the parents applied for US citizenship. Therefore, his US citizenship is a result of naturalization than being natural born.
Would the framers of the constitution allow a Cuban citizen to run for President?

Posted by 7303 | Report as abusive

He will need a visa to travel from Texas to the United States. Has he secured that visa? Is he over-extending his stay here in America. If he is so displeased with the direction of America, he should return to Texas.

Posted by Solidar | Report as abusive

Ted Cruz should not be kicked off the ballot. He should stay on the ballot, waste a BUNCH of republican donor money…. and lose. Just like the last two republican nut jobs.

Posted by Solidar | Report as abusive

With all due respect, the author is a numbskull. Contrary to his assumption that “Congress, like the British parliament at the time of the founding fathers, has the power to define who is a natural- born citizen at birth,” the Constitution specifically grants to Congress control over naturalization and immigration only.

That is, in the Congress cannot decide who is a natural-born citizen. It’s in black and white in Article 1. The fact that Congress has said that children born abroad of citizens are themselves citizens is a *naturalization* statute. Cruz is a naturalized citizen.

Pepperdine, vet your professors, please.

Posted by ReyJorda | Report as abusive