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May states exclude Presidential candidates for ineligibility?

imageThe 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Citizen born in Guyana, argues that the natural born citizenship requirement for the office of President was implicitly repealed by the equal protection guarantees of the 5th and 14th Amendments.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Accordingly, because the Natural Born Citizen Clause has not been implicitly repealed, New Hampshire state laws requiring all presidential candidates to affirm that they are natural born citizens are constitutional.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that the Court never approached the question generally, but only on the issue of whether the 5th and 14th Amendments repealed the natural born citizenship requirement.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.

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22 Responses to May states exclude Presidential candidates for ineligibility?

  1. avatar
    Dr. Conspiracy July 3, 2012 at 12:47 pm #

    The Flesch-Kincaid reading level of this article is 15.2.

  2. avatar
    JPotter July 3, 2012 at 1:05 pm #

    Doesn’t make any sense for states to ‘vet’ Presidential candidates, at least not on their own. They are already barred from adding add’l requirements, as they should be … nonuniformity in the requirements from state to state would be chaos, and open the door to a key state targeting particular persons with creative requirements, thereby affecting the actions of other states.

    I could see some qualifying board at the federal level, some additional step to the process of filing to run, in which candidates are certified eligible. States could refer to that certification, so could Congress …

    …. but that wouldn’t satisfy the nuts.

    Would also require a concret definition of all circumstances of birth satisfying the NBC requirement. And we’ve discussed that one to death before. I really don’t see any easy answer to improving what we have, short of striking the NBC clause.

  3. avatar
    realist July 3, 2012 at 1:10 pm #

    I *think* it was Judge Carter (I may be misremembering) who opined that if we allowed each Secretary of State in each of the 50 states to determine the constitutional eligibility of president and vice president we could then potentially have 50 different criteria and 50 different decisions, which would be chaotic. I agree.

    The fact is (as you wrote in a prior article) the process works as it is laid out. There’s no need for change, with the “possible” addition of a copy on one’s BC and some form of proof of 14 years residence be attached to the declarations sent to each of the states. I doubt most would have a problem with that.

    We’ve seen through different bills proposed in many states how convoluted and… well, ridiculous, the process could be if each state were allowed to do so.

  4. avatar
    Jim July 3, 2012 at 1:22 pm #

    realist:

    We’ve seen through different bills proposed in many states how convoluted and… well, ridiculous, the process could be if each state were allowed to do so.

    That’s for sure…drop your drawers Obama! Arizona: where lawmakers fry their brains!

    http://blogs.phoenixnewtimes.com/valleyfever/2011/04/senate-approved_birther_bill_c.php

  5. avatar
    Jerry Collette July 3, 2012 at 1:53 pm #

    The scope of the definition of candidate within the Federal Campaign Act is limited to the
    Act itself.

    When used in this Act:


    (2) The term “candidate” means …

    That definition has no bearing on other uses of the term outside the Act. One can still be a candidate, but not qualify as one under the Act. This is typical of many terms defined by statutes.

  6. avatar
    Dave July 3, 2012 at 2:07 pm #

    I’m not clear on how the Hassan case relates to birtherism. It sounds like NH requires a declaration, and the decision to put the candidate on the ballot bears only on whether they get the declaration — and not on any judgement about whether it is correct. And it sounds like Hassan’s objection is to the wording required by the declaration. If I have that right, the relationship to birtherism seems pretty strained.

  7. avatar
    donna July 3, 2012 at 2:07 pm #

    Jim:

    the senate version: http://nativeborncitizen.wordpress.com/2011/04/13/hb-2177-az-senate-engrossed-house-bill/

    4/19/2011

    Arizona Governor Jan Brewer – Vetoes Birther – HB 2177

    Gov. Jan Brewer on Wednesday shot down an effort by the Arizona Legislature to require presidential candidates to provide proof of citizenship in order to get on the state’s ballot.

    In her veto letter, Brewer said House Bill 2177 “creates significant new problems while failing to do anything constructive for Arizona.”

    “I never imagined being presented with a bill that could require candidates for president of the greatest and most powerful nation on Earth to submit their ‘early baptismal or circumcision certificates,’ among other records, to the Arizona Secretary of State,” Brewer said in her letter. “This is a bridge too far.”

    In her letter, Brewer wrote, “I do not support designating one person as the gatekeeper to the ballot for a candidate, which could lead to arbitrary or politically motivated decisions.”

    Read more: http://www.azcentral.com/arizonarepublic/news/articles/2011/04/19/20110419xgr-birthveto0419.html#ixzz1zaHNswJK

  8. avatar
    Jamese777 July 3, 2012 at 2:35 pm #

    In the 2008 presidential election a naturalized citizen who was born in Nicaragua was the Socialist Workers Party candidate for president, Roger Calero. Calero was on the ballot in five states but in seven other states the Socialist Workers Party had to use a different candidate named James Harris because Calero was ineligible for those states’ ballots due to failing to qualify as a natural born citizen.
    Roger Calero received votes for president in Connecticut, Delaware, Minnesota, New Jersey, New York, and Vermont.
    James Harris received Socialist Workers Party votes in California, Colorado, Florida, Georgia, Iowa, Louisiana and Washington.

  9. avatar
    nbc July 3, 2012 at 2:56 pm #

    Minor correction:

    using its discretion under the Act even thought a constitutionally ineligible candidate met the formal compliance criteria

    Should be ‘though’

  10. avatar
    y_p_w July 3, 2012 at 5:37 pm #

    I think it might be possible if it’s clearly established that a candidate is not a natural born citizen. However, the assumption should be that one is a natural born citizen unless proven otherwise. Citing the “two parent theory” or birth might be a little beyond the pay grade of state law. I could imagine that getting shot down in federal court.

    The problematic thing about the previous birther bills were that they established certain inflexible standards for documentation that could be difficult to meet and which seemed to be targeted towards a specific candidate.

    We also need to remember that the Constitution doesn’t establish the form of election or even that there needs to be a popular election to designate the electoral college voters from a specific state. States actually have a bit of flexibility in deciding their system, although I’d find it hard to believe that they could establish their own standards for eligibility or specifically try to define “natural born citizen”.

  11. avatar
    anchorbaby July 3, 2012 at 6:39 pm #

    So…does this NH application read the same as it did in 2008–asking the candidate to swear that he is a NBC, or was there a revision to add that wording?

  12. avatar
    welsh dragon July 3, 2012 at 9:53 pm #

    anchorbaby: ineligibility

    No – IIRC it actually originates from a 2010 birther bill that was gutted in committee replacing its craziness with this candidate affidavit.

  13. avatar
    Joey July 3, 2012 at 10:39 pm #

    In 2008, Barack Obama signed an “Arizona Presidential Preference Candiate Nomination Paper” that was a notarized statement attesting to the fact that he was a “Natural Born Citizen of the United States…”
    I assume that Senator McCain and all othe candidates on the Arizona ballot signed the same form.
    http://www.azsos.gov/election/Forms/PPE_Nomination_Paper/2012.pdf

  14. avatar
    Bernard July 4, 2012 at 11:32 am #

    States have kept Presidential candidates off the ballot WHEN IT WAS OBVIOUS, from the candidate’s own materials, that the candidate did not approach the Constitutional qualifications. For example, two states kept Eldridge Cleaver, off their ballots when he ran for the Peace & Freedom Party in 1968 – he was 34 on Election Day, wouldn’t have reached 35 until about six months after Inauguration (at least they didn’t have to parse whether he would have qualified if his 35th birthday had come between Election and Inauguration). This year, 2012, one of those Socialist third parties is fielding a VP candidate who is undeniably a naturalized citizen – the party expects trouble getting him on the ballot and has also fielded a sort of secondary VP candidate who is native born (I doubt we will have to figure out which VP candidate takes the oath on Inauguration Day).

    As far as I know, with regard to Presidential candidates (although it’s happened with candidates for lesser office), there has not been an instance where a State bothered to investigate or contradict a candidate’s self-description of meeting the Constitutional criteria.

  15. avatar
    donna July 4, 2012 at 1:11 pm #

    Bernard: States have kept Presidential candidates off the ballot WHEN IT WAS OBVIOUS, from the candidate’s own materials, that the candidate did not approach the Constitutional qualifications.

    Róger Calero (born 1969 in Nicaragua) is a Nicaraguan American journalist and one of the leaders of the Socialist Workers Party. He was SWP candidate for President of the United States in 2004 and 2008, and for the United States Senate in New York in 2006.

    Because he is not a natural born citizen of the United States, Calero is ineligible to become U.S. president under the United States Constitution, and so James Harris, the Socialist Workers’ Party presidential candidate from 2000, stood in on the ticket in nine states where Calero could not be listed, receiving 7,102 additional votes.

    In the 2008 presidential election, Calero was on the ballot in five states, where he received 7,209 votes. Coupled with the 2,424 votes received in the five states where Harris was on the ballot

  16. avatar
    Bernard July 4, 2012 at 1:58 pm #

    Yes, Obama (and McCain and other Presidential candidates) have sworn to various forms in which they attest that they were natural born citizens, as required by the Constitution.

    But can they really swear to the truth of that? I mean, legally a person is not considered an eyewitness to his own birth. His testimony to his birthdate, birthplace, parentage, and such is simply a repetition of what he was told later by his elders. As such, “family history” is an established exception to the usual hearsay exclusionary rule …. but it is always possible that a candidate’s parents fibbed to him about when or where he was born. He knows what his parents told him, but, if they were fibbing, he doesn’t necessarily know The Truth. I don’t think this has happened in elections, but there have been plenty of instances of people discovering late in life that they were adopted, that their biological father was not the man who raised them, etc., and that they were deceived about this up to the moment of that discovery.

    This is a tired old fact, but it does relate to whether Obama – or any Presidential candidate – could be prosecuted for perjury, or otherwise penalized or even disqualified, if he believed all along that he was a native born American whose first loyalties were to his American native land, even though his parents fibbed to him about that.

  17. avatar
    donna July 4, 2012 at 2:16 pm #

    “if he believed all along that he was a native born American whose first loyalties were to his American native land, even though his parents fibbed to him about that.”

    which is WHY this two-parent birther issue is RIDICULOUS

    the judge in voeltz even raised the kid born by in vitro fertilization scenario

    klayman said those people were OUT OF LUCK

    the judge raised the child who was born after his father had died scenario

    that perked up my ears because over 100 kids were born after their fathers died on 9/11

    imagine telling those kids they are “not natural born”

  18. avatar
    Scientist July 4, 2012 at 2:20 pm #

    donna: the judge raised the child who was born after his father had died scenario

    Bill Clinton’s father, William Jefferson Blythe, died before his son was born.

  19. avatar
    donna July 4, 2012 at 2:33 pm #

    Scientist: OOPS!!!!!

    but ole bill was WHITE

  20. avatar
    Scientist July 4, 2012 at 2:40 pm #

    donna: but ole bill was WHITE

    But he was called “The first black President”.

  21. avatar
    donna July 4, 2012 at 3:26 pm #

    Scientist: But he was called “The first black President”.

    the birther in me (that i’m not) would file to exhume the body of William Jefferson Blythe and perform dna testing

    in fact, taking the birthers to the limit would require dna testing of all parents of presidential/vp candidates to be certain that their parents were citizens –

    we now have birth tourism where people come here just to have their children american born – many of bin laden’s family members live here – do any of them have american born children?

    trump allowed gadhafi to pitch a tent on trump’s property in my hood (until we fought to have it removed) – did gadhafi spread any of his sperm while here?

    im-a-nut-job (Ahmadinejad) comes here to speak at the UN – does he leave any of his little swimmers behind at sperm banks or elsewhere?

    seriously, authors of “thrillers” could write tomes based on birther conspiracies

    after all, obama’s family plotted obama’s future over 50 years ago and look at how that turned out

  22. avatar
    Bernard July 4, 2012 at 3:38 pm #

    My point, blunt as it was, was intended for those birthers who want Obama himself prosecuted for saying he was born in Hawaii. Even if …. there would be enormous reason to doubt that Obama personally knew anything different from what his family told him, and therefore, even if …, it does not appear that he could be charged with perjury or any similar offense regarding his own claim to his birthplace.