Presumption of eligibility
In the United States there is a presumption of eligibility for candidates for office. Lacking a statute requiring some showing of eligibility, a candidate for office doesn’t have to prove eligibility; the burden of proof is on a challenger. Jack Maskell of the Congressional Research Service cited George W. McCray from his book, A Treatise on the American Law of Elections:
The presumption always is, that a person chosen to an office is qualified to fill it, and it is never incumbent upon him to prove his eligibility. The certificate of election does not add to this presumption, but simply leaves it where the law places it, and he who denies the eligibility of a person who is certified to be elected, must take the burthen of proving that he is not eligible.
Bradley Schrager argued before the Nevada Supreme Court:
Historically, this Court has approached candidate eligibility cases with a presumption of eligibility and a liberality of construction, especially where an ambiguity of law affects a determination of who may appear on a ballot. This is not a recent trend, but a part of the Court’s consistent approach going back many decades.
And the American and and English Encyclopedia of Law says of Public Officers:
That an officer has been elected and commissioned creates a strong presumption of eligibility.
Differing opinions have appeared on this blog both in articles and comments, on the topic or exactly who is eligible to be president of the United States. While examples exist where state officials have excluded obviously ineligible presidential candidates from the ballot and both state and federal courts have said that the issue of the eligibility of someone born in the United States to alien parents is “well settled,” I have not seen any court employ any kind of balancing test for presidential eligibility. Courts have not ruled candidates ineligible in ambiguous situations.
Political Question
The federal courts have held that they do not have jurisdiction over questions delegated expressly by the Constitution to another branch of government. One important case on this topic was Nixon v. United States, relating to the impeachment of a federal judge. The Supreme Court held that Nixon’s claim of a constitutional violation during his impeachment proceeding was nonjusticiable, a political question that could not be resolved by the courts. Professor Amar of Yale argues that presidential eligibility is likewise a non-justiciable political question.
Federal Judge Wingate, in his decision in Taitz v. Mississippi Democrat Party cited several Obama eligibility cases under the topic of “political question,” and said “…this court can find no authority in the Constitution which would permit it to determine that a sitting president is unqualified for office or a president-elect is unqualified to take office.”
State courts are not burdened by the political question doctrine, but they may well be held incapable of ruling on a presidential candidate eligibility because of the Constitution’s Supremacy Clause that make the US Constitution and federal statutes made pursuant to it the”supreme law of the land.”
In the light of the presumption of eligibility, the lack of any express guidance from history, the reluctance of courts to get involved in presidential eligibility (deferring to Congress based on the 12th and 20th Amendments), on top of the political heat that would be created if Congress rejected a popularly-chosen president-elect, I find it difficult to envision any situation where Ted Cruz would ever be ruled ineligible.
