Donald Trump has revived the question whether Senator Ted Cruz is ineligible to serve as President due to his birth in Canada. The issue cries out for judicial resolution, but there are constitutional and prudential obstacles to a federal court deciding it. This comment argues that the most promising avenue is a state court lawsuit challenging Senator Cruz’s eligibility and seeking his removal from the primary ballot. There’s at least one state – Pennsylvania – where the deadline for filing hasn’t yet expired, but if skeptics of Cruz’s eligibility want to sue there they must act quickly, no later than Tuesday. Litigating the case through state court would tee up the issue for Supreme Court review, which would be helpful in resolving the recurrent question of what it means to be a “natural born Citizen." [Read Comment]
Ohio’s democratic gubernatorial candidate Ted Strickland is facing a challenge to his voting registration in his hometown of Lisbon, Ohio, in Columbiana County. The challenge alleges that Strickland has a condominium in Columbus, in Franklin County, that is his primary residence, and that therefore he is no longer qualified to vote in Columbiana County. The challenge was filed with the Columbiana County Board of Elections, as required by state law. Last week, the Board split 2-2 along party lines on whether to grant Strickland’s motion to dismiss the challenge, and sent the matter to the Secretary of State to break the tie. Yesterday the Secretary of State’s office sent the matter back to the County Board and asked it to conduct a full hearing on the matter. But the issue involves more than just whether Strickland will be eligible to vote on November 7. The issue also has the hypothetical potential to affect his eligibility as a candidate for governor.
However, for the challenge to Ted Strickland’s residency in Lisbon to result in the disqualification as a candidate, three distinct legal hurdles must be overcome. First, the challenge must prove that Strickland is not eligible to vote in Columbiana County because he is not a “resident” there for purposes of the statutory provision governing where an Ohioan may vote. Second, if this were proven, then someone would need to find a judicial avenue for seeking Strickland’s disqualification as a candidate. Third, ultimately the Ohio Supreme Court (where the case would inevitably end up) then would have to conclude that the result of Strickland’s ineligibility to vote in Columbiana County is that he does not “possess the qualifications of an elector,” as required by the Ohio Constitution to be eligible for elected or appointed state office. These are high hurdles, as follows.
As for the first hurdle, Ohio code expressly provides that one who removes himself from his home county for purposes of U.S. government service in another state does not thereby lose his residence in that home county. The key question is whether the person has an intention to return there. The facts as I know them concerning the Strickland challenge are only slightly more complicated than this statutory proviso, in that he has both left his Lisbon home to serve as a congressman in Washington and has acquired a third resting place, in Columbus. He credibly argues (and I understand has publicly explained to his constituents) that this allows him to access more of his district than if he always returned to Lisbon, near the northern end of his snake-lake district along the Ohio River, every time he is back in Ohio. Even absent this express proviso, Strickland seems to be in a position to make a strong argument that he has the necessary indicia of residency in Lisbon, including an intent to return there, notwithstanding contrary indicia, such as a homestead property tax exemption for his Columbus home, or payment of Columbus city income tax, which he could argue are still only "temporary" during his term of federal service.
As for the second hurdle, even if Strickland ultimately were deemed not to have been “registered to vote for thirty days,” it could well be a separate question whether at this point that would entitle someone to insist that his name be removed from the ballot, or that votes cast for him not be counted. Someone would need to bring a new challenge to this effect, after the Board of Elections resolves the matter. It may be that a court hearing such a claim would conclude that it lacks jurisdiction over this issue, or that the time for determining a candidate’s eligibility has now passed. Specifically, it appears that the only statutory provision for challenging a candidate’s eligibility on the basis that the candidate is not an elector is in ORC 3513.05, which requires that the challenge be filed sixty-four days before the primary election, and filed not with a court but with the election officials with whom the candidacy petition was filed – in this case, the Secretary of State. Although conceivably a court might conclude that it had jurisdiction over an implied right to challenge the eligibility of a general election candidate after the primary election is over, any such implied right might also include some reasonable cut-off date well in advance of the election.
As for the third hurdle, while the language of the constitution can support a case that if Strickland is stricken from the voter registration lists in Columbiana County then he is not eligible for state office, it seems unlikely that the provision will in fact be so interpreted. By its terms, Article V Section 1 of the Ohio Constitution provides that an Ohioan over 18 who has been “registered to vote for thirty days” has the “qualifications of an elector,” as required by Ohio Constitution Article XV Section 4 to be eligible for state office. If the Columbiana County Board of Elections decides that Strickland is not eligible to vote in Lisbon, then presumably they would strike him from the registration list, and one could argue that Strickland then would not have been registered to vote for thirty days. But in the few analogous cases that are available to serve as preceent, Ohio appellate courts have not read the statute this way, concluding that as long as a candidate had been registered somewhere, though improperly, and remained eligible to be properly registered somewhere else (suitable for the office the candidate sought), then the candidate remained eligible for that office, even though the candidate was not personally eligible to vote in that election.
Thus it appears that a succeessful challenge to Strickland’s candidacy is highly unlikely.
Update (10/19/06): According to this article in the Dayton Daily News, Ted Strickland has stated that he plans to file a lawsuit regarding the challenge to his eligibility to vote.