What if Neither Candidate is Eligible?
Two different arguments have been offered in the controversy. One, which seems to hinge on technicalities and isn't very interesting, has to do with whether Obama as a child got Indonesian citizenship due to having an Indonesian stepfather.
The other is the stuff of which novels are made. The claim is that Obama's mother, late in her pregnancy, tried to fly back to the U.S. from Kenya, where she was with her husband's family, but was unable to because the airline had a policy against carrying women who were near term and so might give birth while in flight. The result was that the baby was born in Kenya, brought back to Hawaii shortly thereafter, and the birth registered in Hawaii. The evidence offered for the story is, I gather, testimony, or at least purported testimony, by relatives of Barack Obama's Kenyan father.
While googling around for more information, I came across another story along somewhat similar lines. Apparently it has been argued that McCain is not eligible, because he was born in the canal zone, which is at best ambiguously American. As best I can tell, it really is an open question, although most experts are inclined to think he does qualify. Snopes has an interesting discussion.
A California lawsuit arguing that McCain should be removed from the California ballot was dismissed by the judge:
"This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen.
Plaintiff has not demonstrated the likelihood of success on the merits necessary to warrant the drastic remedy he seeks," Alsup wrote.
Furthermore, "plaintiff has no standing to challenge Senator McCain's qualifications," the judge wrote. "Plaintiff is a mere candidate hoping to become a California elector pledged to an obscure third-party candidate whose presidential prospects are theoretical at best. Plaintiff has, therefore, no greater stake in the matter than a taxpayer or voter."
Which leaves open the possibility that a different plaintiff, seeking a less drastic remedy than immediate removal from the ballot, might yet prevail. I also found references to a New Hampshire lawsuit, but not to its outcome.All of which raises a possibility, admittedly unlikely, that is both entertaining and disturbing. What if a court finds, shortly before the election, that one or both of the candidates is ineligible? What if one of the candidates wins and a court then finds that he was ineligible? Assuming the result is sustained on appeal, does the presidency go to the losing candidate, to the winning candidate's vice president, or to someone else?
The Supreme Court's role in the 2000 election produced a certain amount of controversy; one can imagine the response to a scenario where it ends up being asked to eliminate a candidate after he has been elected on the grounds of disputable historical facts or legal arguments.