Saturday, October 04, 2008

What if Neither Candidate is Eligible?

I recently came across a rather bizarre news tidbit online. Apparently, a few days before the Democratic convention, a Clinton supporter filed a suit claiming that Obama was not a natural born U.S. citizen, hence not eligible to be President. The judge refused to act immediately to forbid the Democrats from nominating him but did not dismiss the suit, which I gather is still in progress.

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.


Anonymous said...

Remember, it's the Electoral College that matters (legally). If the Court rules before they meet, they elect somebody else, perhaps the VP candidate, and a VP.

Afterwards, I'd say it's like any other case where the President-elect suddenly becomes ineligible (e.g. dies); the VP-elect becomes the President-elect.

Anonymous said...

The McCain brief seems specious to me, although it is a tricky problem, because the law that matters is the law that was in effect at the time of birth. Thus, it is possible that one of McCain or Obama could be “natural born” and the other not. In Rogers v. Bellei, 401 U.S. 815, the Court quotes the version of 8 U.S.C. 1401 that I think was in effect when Obama was born. That statute defines who shall be considered a citizen “at birth”, and Obama - on the facts you have suggested - seems to fit that definition. The McCain brief’s citation to 1401 seems confused - unless a statute that defines what being a citizen “at birth” means is taken to be “naturalizing” a person. I predict that no court will take that reading in a case involving either McCain or Obama.

montestruc said...

Both are absurd. The acknowledged child of a US citizen born in or out of wedlock is a US Citizen come hell or high water, only exception I know of (after some quick research) is if the child of a male US citizen is not acknowledged/paternity established till after the child is 21.

So long as the citizenship is not renounced, and that person does not take up arms against the USA, the remain a born US Citizen.

Milhouse said...

The framers understood "natural born citizen" as a variation on the then-common concept of a "natural born subject". Blackstone says that one is a natural born subject of the sovereign in whose country one was born, with the exception of the King's embassadors. If a UK ambassador's wife has a child in the country to which he is posted, that child is a natural born subject of the King of the UK, not of the local sovereign.

Based on this it seems to me that if Obama were born in Kenya he would not be eligible for the presidency, but even if McCain were to have been born in Panama itself he would still be eligible, because his parents were stationed there in the service of the USA, just like ambassadors. Like ambassadors, they were not subject to Panamanian law, and were not under the protection of the Panamanian president.

Not that I believe the Obama-born-in-Kenya story for a moment. It's a bizarre fantasy. As far as I know there's no evidence that his mother ever visited Kenya, and back in 1960 people didn't just jet around the world they way we do today. Air travel was expensive and tiresome, and not undertaken lightly. But if it were true, then I think it would disqualify Obama.

Anthony said...

Seth has it right; the Electoral College consisting of actual people resolves that issue and a number of others which one might think the Constitution's framers left out. So if one or more of the candidates is ruled ineligible, or dies, or is videotaped taking money from Ayatollah Khamenei, or whatever, the electors will vote for someone else.

Since electors are generally chosen for that job for being long-serving party hacks, the odds of them straying too far off the farm are low. If McCain drops dead, and the Republican Party says "We're going to go with Sarah Palin, and she's chosen Mitt Romney as her running mate", most of the electors (who actually get elected) will vote that way. In theory, this is even true if the candidate dies (etc) before "election day".

Utopian Yuri said...

the assumption in the original post and the comments is that the challenge is in federal court. more likely (though still hard to imagine) is disqualification at the state level.

various states, including potentially important swing states like florida, virginia and indiana, allow elections to be contested based on the ineligibility of the candidate. the statutes don't typically state remedies, but it's fair to assume that in the case of presidential elections, the remedy would be certification of the eligible candidate with the highest number of votes, and mandamus to the electors to vote for that person.

that means that a state-level decision could potentially alter the national election results. e.g. if mccain wins with florida providing the margin of victory, and the florida court invalidates mccain's certification and/or mandates an electoral vote for obama, then obama takes the presidency.

there's discussion in daniel tokaji's short paper here, part of a michigan law review symposium on mccain's eligibility:

Utopian Yuri said...

the theory that obama is not a natural born citizen is probably meritless. i haven't seen any legal authority supporting the proposition that you are not a natural born citizen if you are born outside of US jurisdiction to a U.S. citizen parent who has met certain residency requirements. there is an old statute that makes you a citizen at birth in such circumstances.

the mccain theory is more likely to be meritorious because he was not born outside of U.S. jurisdiction, so he is arguably not covered by the statute; and he was not born in the U.S., so he is not a natural born citizen by virtue of the fourteenth amendment. he was born outside US limits but within US jurisdiction, and so according to Gabriel Chin's analysis, he fell through a gap in which neither congress nor the constitution provides for citizenship. the gap was known at the time of his birth but wasn't fixed until after he was born.

he could still be a natural born citizen if (1) the statute is not read literally; (2) the court decides that he is a natural born citizen by common law even though not by statute; or (3) the court interprets "natural born citizen" to mean something other than citizen at the time of birth.

see gabriel chin and stephen sachs' papers at the michigan law review symposium.

Utopian Yuri said...

getting back to prof. friedman's question: if both are determined to be ineligible by a state court decision like the one i've outlined,
i can see several possible results.

1. it gets appealed to the US supreme court, which simply overturns the state court.

2. it gets appealed to the supreme court, which upholds the state's judgment but does nothing as far as the candidates' overall eligibility, i.e. it lets the other states' decisions stand. in that case, if one candidate has the electoral college majority, he becomes president. if not, the house of representatives chooses the president in accordance with the procedure in the 12th amendment.

3. the supreme court rules that both candidates are not eligible to be president. in this case it seems to me that the proper procedure would be for each state to certify the electors for the remaining candidate with the highest vote total, and to follow the electoral college procedure from there.