Is the “First in the South Primary” and an eligibility statute the perfect storm for a Ted Cruz legal challenge?
I think that any presidential election challenge brought after the US general election is beyond the jurisdiction of the courts. By then it’s a political question, and the Electoral College and Congress are the branches of government assigned the responsibility for choosing of the next president under the Constitution.
The US Constitution and statutes grant considerable control over the conduct of elections to the states, and they may impose rules on potential candidates, including oaths affirming eligibility, viability, fees, and forms. States have excluded potential presidential candidates for eligibility, recently Peta Lindsay in California on account of age, but I don’t recall that the Supreme Court has ever ruled on a case where a presidential candidate was refused ballot position by a state for eligibility reasons. Should a state refuse a candidate’s place on its presidential primary ballot, there is a ready-made scenario for that challenger to sue, but it seems very unlikely that any state would do that based on the birther “two citizen parent and born in the country” theory, given the extreme minority opinion status of that opinion.
Some state courts have ruled (e.g. Florida and Georgia) that presidential primaries are party elections and that the state has no say in who goes on the ballot, once certified by the party, so suing the state is no good. The party itself has discretion, for example, the South Carolina Democratic Party refused to register Stephen Colbert in 2012 because they said he was not a viable national candidate–there was no lawsuit.
So it seems to me that IF there is any chance for a successful lawsuit to adjudicate candidate eligibility, a state party or a national party would have to be the defendant, and the challenger would most likely have to be a credible opposition candidate in order to have standing. The case could either be brought before a primary election in the case of a state party defendant, or between the primaries and the national convention in the case of a national party defendant. In any case, the challenge must be brought early to have an effect. An adverse ruling to a candidate would have tremendous influence, generating precedent and national attention, and what better venue than South Carolina’s “First in the South Primary” to be held February 20, 2016, for that challenge?
Candidates that have filed (and not yet withdrawn) in South Carolina:
- Marco Rubio
- Jeb Bush
- John Kasich
- Ben Carson
- Ted Cruz
- Lindsey Graham
- Rick Santorum
- Bobby Jindal
- Mike Huckabee
- Carly Fiorina
- Donald Trump
- Rand Paul
- Jim Gilmore
- Chris Christie
- George Pataki
The law in South Carolina on presidential preference primaries requires that the state parties certify to the SC Election Commission that the candidates are eligible under the Constitution. In particular Section 7-11-20(B)(2) includes:
Political parties must verify the qualifications of candidates prior to certifying to the State Election Commission the names of candidates to be placed on primary ballots. The written certification required by this section must contain a statement that each certified candidate meets, or will meet by the time of the general election, or as otherwise required by law, the qualifications in the United States Constitution, statutory law, and party rules to participate in the presidential preference primary for which he has filed. Political parties must not certify any candidate who does not or will not by the time of the general election meet the qualifications in the United States Constitution, statutory law, and party rules for the presidential preference primary for which the candidate desires to file, and such candidate’s name must not be placed on a primary ballot.
So maybe candidate Donald Trump (or some have suggested John Kasich) could sue the South Carolina Republican Party to prevent the party from certifying Ted Cruz (or Rubio, Santorum or Jindal) to the Election Commission for the February 2016 presidential preference primary on the grounds that he is not eligible. If they do, they need to get busy. February is right around the corner.