With the Republican National Convention scheduled to begin tomorrow (July 17), where Donald Trump has garnered enough delegates to be elected on the first ballot, it would seem that the eligibility of another losing candidate is moot. Still, the question of whether the Canadian-born Ted Cruz and persons like him are eligible to be president is likely to continue to clog the electoral process in the future unless some guidance from the Supreme Court is forthcoming. Unlike Barack Obama, nothing prevents Ted Cruz from running for president again in the future.
Several lawsuits challenging Cruz, including one from Carmon Elliott of Pennsylvania, were filed. Such lawsuits present difficulties to plaintiffs and challengers, that of demonstrating standing, including whether the courts even have jurisdiction. These problems were articulated before when the Mexican-born George Romney ran for President in 1968: Prof. Charles Gordon’s paper, “Who Can Be President Of The United States: The Unresolved Enigma” details the issues. The difficulty is establishing standing, both individual harm to the challenger and the court’s jurisdiction to hear a question of presidential eligibility in general–Presidential eligibility might be a non-justiciable political question. The lower court in Pennsylvania ruled that it had jurisdiction and decided the case on the merits, concluding that Ted Cruz was eligible to be elected president. The court essentially defined “natural born citizen” as a “citizen from birth.” That decision was affirmed on appeal.
Birther attorney Mario Apuzzo, a frequent litigator on presidential eligibility questions, is representing Elliott before the Supreme Court and writes about Elliott’s appeal in his most recent blog post, “Carmon Elliott Files a Petition for a Writ of Certiorari to the U.S. Supreme Court on Ted Cruz Not Being a Natural Born Citizen.” Apuzzo and his fellow birthers have a lot riding on this case because if the Pennsylvania court decision becomes precedent, it means birther legal theories are repudiated at the highest level, relegating them once more to the dingy backwaters of conspiracy theory. While the specific question of a foreign father is not asked (the appeal is focused on foreign-born), if Cruz is eligible, then Obama must be also. If the Supreme Court declines to hear the case, the fuzzy status quo remains.
Update: Cruz has waived response.
Case DISTRIBUTED for Conference of September 26, 2016.
The Supreme Court declined to hear the case.