Saturday’s death of Supreme Court Justice Antonin Scalia and the controversy over Senator Ted Cruz’s birth status could become a perfect legal and political storm.
If the Texas Republican were born to two Americans in Houston, his natural-born citizenship would be beyond debate. Conversely, if he were born to two non-Americans in Havana, his natural-born non-citizenship would be indisputable. But as someone born to an American mother and a Cuban father in Calgary, Canada, Cruz — at least for some — occupies a gray area.
This ambiguity means that one could argue that Cruz is constitutionally unqualified to become president of the United States. And Democrats sure can argue. So, if Cruz secures the Republican nomination, don’t be surprised if — soon after the GOP Convention — Democrats in every state file lawsuits to block Cruz’s access to general-election ballots.
“Even though the majority of lawyers who have studied the issue think Cruz is on solid legal ground, there are some cracks of uncertainty in that ground,” says one attorney familiar with the matter. “That sliver of doubt is enough to launch a lawsuit, regardless of the outcome.”
Thus, Republican lawyers will have to spend time, money, and mental energy in courtrooms from coast to coast to dismiss these suits. Even if most judges believe Cruz is natural-born, it takes only a couple of narrowly partisan or majestically open-minded judges to agree to hear such cases, take testimony, weigh both sides’ arguments, and noodle the matter for days or weeks. This could trigger breathless TV coverage, vitriolic debates, raucous protests, and a Ringling Bros. ambiance. Even if Democrats eventually lose, Cruz and the GOP could spend precious time discussing legal niceties rather than conservative reforms. Meanwhile, Hillary Clinton (if she is on the Democrat ticket rather than in jail) could avoid defending Obama’s wreckage while, instead, Americans watch Republicans extinguish legal fires.
The worst-case scenario sounds preposterous — but so was the 2000 Florida recount.
Democrats may prevail in some cases. Republicans in others. Each of these decisions then could be appealed to higher courts. Ultimately, some state supreme courts and federal appellate courts could rule for and against Cruz.
And who referees when high courts disagree? The Supreme Court of the United States.
“The Supreme Court — the ultimate arbiter of constitutional questions — has never directly ruled on the citizenship provision for presidential office holders,” Steve Contorno of PolitiFact observed last March. “And that means a note of uncertainty remains.”
#share#After Justice Scalia’s unexpected death, SCOTUS now is split evenly between four Democrat-appointed justices and four Republican-nominated jurists. So, if conflicting circuit-court decisions reach the eight surviving justices, and they remain deadlocked 4-4, their tie vote would leave each lower court’s decision intact. Could we see the New Orleans-based Fifth Circuit U.S. Court of Appeals rule that Cruz is eligible to run, while the Ninth Circuit in San Francisco disqualifies him? Absent SCOTUS’s guidance, imagine voters in Louisiana, Mississippi, and Texas seeing Cruz’s name on ballots while voters in Arizona, California, and Montana would not find his name at the polls.
If Democrats deployed such a full-court press, Cruz’s message could get lost amid a flurry of court decisions, appeals, amicus briefs, and the relentless shouts of law professors, retired judges, and pundits on the airwaves, Internet, and social media.
Eventually, some voters might conclude, fairly or unfairly: “I just cannot support that Canadian.” That could be Cruz’s margin of defeat.
“Consistent Democrats might realize that it would be unseemly to bring such a lawsuit after mercilessly mocking GOP birthers for so many years,” Secretary of State Kris Kobach, Esq. (R., Kan.) tells me. “But consistency has never been the Democrats’ strong suit. Take, for example, their changing positions on blocking judicial nominations.”
The talented Senator Cruz is blameless for his birth in Calgary, Alberta; his father worked there in the petroleum industry. However, Cruz’s claim that he is a natural-born citizen might be easier to defend politically if he had renounced his Canadian citizenship long before May 14, 2014 — just 21 months ago.
Still, to create havoc with this issue, Democrats need not be right. They just need to sue.
And they will.