The Secretary of State of New Hampshire has official forms that must be filed by all candidates for President, forms that require that the candidate state, under oath, that he or she is constitutionally qualified for the office of President of the United States. Attorneys for the Democratic Party of Mississippi have said that political parties can run whomever they wish for President. (Running an ineligible candidate, who could not actually assume office, would of course be a silly thing for a major party to do.)
In an appeal of Purpura v. Obama before the Supreme Court of New Jersey, attorney Mario Apuzzo argues1 that such laws and regulations are constitutional, citing a decision this year by the New Hampshire District Court in the case of Hassan v. New Hampshire. Mr. Hassan, a naturalized US Citizen born in Guyana, argues that the natural born citizenship requirement for the office of President was implicitly repealed by the equal protection guarantees of the 5th and 14th Amendments. The District Court disagreed and said, as cited by Apuzzo in his appeal:
Accordingly, because the Natural Born Citizen Clause has not been implicitly repealed, New Hampshire state laws requiring all presidential candidates to affirm that they are natural born citizens are constitutional.
While that citation is superficially on point, it is clear from the entire decision that the Court never approached the question generally, but only on the issue of whether the 5th and 14th Amendments repealed the natural born citizenship requirement. The court did not say that such laws are constitutional under any objection. (Hassan v. New Hampshire is currently on appeal before the First Circuit Court of Appeals.)
There have been other cases where ineligible candidates for President were barred from the ballot by states (for example, Eldridge Cleaver by Hawaii, California and New York because of age), but to my knowledge none of the resulting lawsuits that upheld exclusions ever reached the Federal Circuit Court level.
Apuzzo’s appeal argues that if the states don’t check eligibility, no one will. This is a position that I disagreed with in my article: “How we insure our presidents are eligible.” My view is the vetting of a President occurs at many levels and ultimately the responsibility falls on Congress. Judge Alsup wrote in his decision of the California case of Robinson v. Bowen:
Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates.
Mr. Hassan, of course, never argued that an ineligible candidate could appear on the ballot, but rather that he himself is eligible. He also requested an advisory opinion from the Federal Elections Commission as to whether he could raise money as a candidate for President. The FEC had previously argued in the case of Berg v. Obama that: “[the FEC] has no oversight over the Constitution’s Presidential Qualifications Clause.” Nevertheless, in its unanimous opinion, the FEC said the Federal Election Campaign Act of 1971 did not preclude Mr. Hassan from becoming a candidate for president, nor from soliciting funds for his campaign2,; however, the FEC did assert that it would deny matching funds to Hassan under The Presidential Primary Matching Payment Account Act, 26 U.S.C. §§ 9031-42 using its discretion under the Act even though a constitutionally ineligible candidate met the formal compliance criteria. Whether intentional or not, there is nothing in the Matching Payment Act requiring that candidates for President must be eligible to office in order to receive matching funds.
I have doubts that the courts would affirm an FEC decision to withhold matching funds in the unlikely event that Hassan would otherwise qualify for them. The FEC tried to use its discretion before in denying funds to Lyndon LaRouche, Jr., and that was overturned by the Court of Appeals for the District of Columbia Circuit in 1993. While eligibility to office was not an issue in the LaRouche case, it seems to me that the Matching Payment Act does not give the Commission any authority to withhold funds based on candidate eligibility to office, any more than it gave the Commission authority to withhold funds on other grounds not explicit in the Act.
The way I read the Constitution, there is nothing whatever therein regarding who may run for President, or who the Electoral College may vote for. Congress did not see fit to include an eligibility requirement to receive matching election funds. On the other hand, the States have long-recognized authority to regulate elections, so long as they do not offend the Constitution.
Today we have 50 states with different laws, and a large number of lawsuits rising from those laws challenging the eligibility of a candidate for President. It’s a messy process. It would certainly be beneficial if there were an authoritative ruling governing the general question of whether the States have any role in deciding presidential eligibility.
1Mr. Apuzzo’s problem is that there is no state regulation in New Jersey requiring any affirmative action by a candidate for President to appear on the ballot.
2It is interesting to note that under the Federal Campaign Act of 1971, the various birther plaintiffs who claim standing as candidates do not meet (so far as I know) the definition of “candidate”, since they have not received the requisite $5,000 in contributions or made that amount in expenditures.