Calling All Purple State Birthers

The surest way for a public figure to get disrespect from the mainstream media today is to say that he thinks that the Awesome O does not meet the constitutional requirements to be President.  I won't go there.  I do think its worth knowing the state of the law on the subject, including how someone's qualifications for the office might be effectively challenged.  A little background goes a long way when you are accosted by someone with an overpowering belief in conspiracy theories, or are forced to listen to Jim Villanucci deal with such people.



Article II Section 1 of the Constitution says

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

Now, we need to be perfectly clear about the requirement that the President must be a "natural born citizen."  It is not just a requirement of citizenship.  And whatever it means, it doesn't include a naturalized citizen, someone made a citizen by force of law.  Such immigration and naturalization laws are the result of Congressional and Presidential action.  Someone born in the United States becomes a citizen by Section I of the 14th Amendment to the Constitution, which states in part that

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

A child born overseas of parents who are American citizens does not meet this constitutional requirement, even if born on a military base, or in a diplomatic mission.  They become a citizen through a naturalization process.  For such children, it's pro forma, but it's essential.  So there are two paths to citizenship: a path through the Constitution and a path through the immigration and naturalization law.

There have been numerous candidates for President and even a few Presidents themselves, whose qualification of natural-born citizenship -- though not their citizenship per se -- has been questioned.  You can read about them here in Wikipedia, if you choose.  One of those is -- wait for it -- John McCain!  Of that war hero's eligibility, Wikipedia says

The urban legend fact checking website Snopes.com has examined the matter and cites numerous experts. It considers the matter "undetermined".

And that really ought to have been the end of that, but in 2008 the University of Michigan Law Review ran a symposium addressing the question of the natural born citizenship of John McCain.  Here are the papers the Review published on the subject.  Some say McCain is natural born and some say that he isn't, but the most interesting one is Daniel Tokaji's assessment of the Federal "justiciability" of any candidate's eligibility under either of the requirements.  The justiciability of an issue is a lawyerly concept of whether the judicial system can be persuaded to force itself to consider and pronounce judgement on that issue, or whether it will do what it really prefers to do and drop it like a hot potato.

Tokaji's opinion is that no Federal court will take on a challenge to eligibility because 1) hardly anyone stands to lose or gain anything concrete -- remember that only a very few electors selected by the States actually vote for President and that those elector's votes are counted by Congress -- and 2) eligibility is a political question, subject to litigation only in the court of public opinion. 

However, that doesn't mean there's no way the issue could reach the Supreme Court of the United States.  Tokaji argues that State ballot access laws provide an avenue for a challenge to a candidate's eligibility in State court.  He points out that if a State's courts -- which eventually would mean the State's Supreme Court -- were to decide to bar a candidate from the ballot for lack of proof of natural born citizenship, then that candidate would have an avenue of appeal directly to the Supreme Court of the United States.

Now, about Awesome O's natural born citizenship.  The simple version of the above law and facts of the case are that if he was born in Hawaii in 1961, then he's eligible to be President of the United States, and if not, he's not. 

Someone could bring suit in some state court to challenge the President's eligibility to be on the ballot.  He could stop that suit at its lowest level by producing and introducing into evidence his birth certificate.  Since he's not done that so far, it's possible that the original certificate is lost in a bureaucratic snafu, even though Hawaii officials have made public claims that they have seen it, or that there's something on it he wants to keep private.  Under such circumstances, the President might choose to fight against the state court's right to hear the case.  That case itself could end up in Federal court.  Eventually there could be a Ken Starr/Mitch Ryder Devil with a Blue Dress On moment*.

From the point of view of the challenger's strategy, there's little reason to challenge his eligibility in a state like Wyoming, where the courts might be favorably disposed to the challenge.  The Obama campaign might not even fight it there, since they have no prospect of winning either those electoral votes or the court case without producing a birth certificate.  In a state like Pennsylvania or Florida or Ohio, a swing state where the electoral votes might matter, the challenge would face a more difficult judiciary.

I suppose that there's a timing issue, too.  A state ballot access challenge would not be timely before the Democrat party's nominating process cranks up -- sorry, no pun intended -- in early 2012.  An eligibility challenge on the general election ballot would have to wait for the completion of the Democrat party's Presidential nominating process in some appropriate swing state. Time for the various courts to act would then become very short.

Purple state birthers could make the Democrat Presidential nominating process in early 2012 a bit more interesting than most people expect.
 wish to be added to my mailing list, please email me at nmrx3@swcp.com.