Natural Born Citizen

The end of the long presidential campaign is just three weeks away. There is some possibility that the campaign will continue beyond election day with litigation similar to that which resulted in the US Supreme Court decision in Bush v. Gore, 531 U.S. 98 (2000). Both major party candidates have had to respond to lawsuits challenging their eligibility for the Office of the President under Article II, Section I of the US Constitution which reads:

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.

At issue is the term “natural born Citizen”. Three cases have challenged Sen. John McCain’s eligibility on the ground that he is ineligible due to his birth in the Panama Canal Zone: the first was Inland Empire Voters v. United States, filed in the US District Court for the Central District of California; the second was Hollander v. McCain, filed in the US District Court for the District of New Hampshire; and the third, Robinson v. Bowen, was filed in the US District Court for the Northern District of California in August 2008. All cases were dismissed due to the plaintiff’s lack of standing. Interestingly, District Court Judge William Alsup in his September 16 opinion dismissing the Robinson case stated:

It is clear that mechanisms exist under the Twelfth Amendment and 3 U.S.C. § 15 for any challenge to any candidate to be ventilated when electoral votes are counted, and that the Twentieth Amendment provides guidance regarding how to proceed if a president elect shall have failed to qualify. Issues regarding qualifications for president are quintessentially suited to the foregoing process. Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates. Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors and the legislative branch, at least in the first instance. Judicial review--if any--should occur only after the electoral and Congressional processes have run their course.

The September 2008 issue of First Impressions, the online companion to the Michigan Law Review has an Online Symposium on Senator John McCain and Natural Born Citizenship with five scholarly articles debating the issue.

Now a new suit, Berg v. Obama, has been filed in the US District Court for the Eastern District of Pennsylvania alleging that Sen. Barack Obama is not eligible to be President on the natural born citizen issue. A Motion to Dismiss the complaint is pending before the Court. The motion is grounded on the plaintiff’s lack of standing and cites as authority the dismissed cases that were filed against Sen. McCain.

Whatever the election results, the possibility of the final outcome being resolved in the US Supreme Court may not be so far-fetched.