News & Insights

March 21, 2016

Appeal of Cruz's Ballot Eligibility Fast-Tracked

This article originally ran in The Legal Intelligencer on March 21, 2016.

 

The Pennsylvania Supreme Court has set a quick timetable in the appeal of a ruling allowing Sen. Ted Cruz, R-Texas, to remain on the state's presidential primary ballot.

 

The court said Monday that challenger Carmon Elliott had until 4 p.m. Tuesday to submit his brief in Elliott v. Cruz. Presidential hopeful Cruz then has until 4 p.m. Wednesday to file his response. There was no indication of whether or when oral arguments would be scheduled in the case. Pennsylvania's primary is scheduled for April 26. The court did say in its order that the parties could submit the same briefs they submitted to the Commonwealth Court.

 

Elliott, who represented himself before the lower court, is now being represented by Norristown attorney David J. Farrell, who had initially submitted his own challenge to Cruz's ballott eligibility but withdrew it in advance of the Commonwealth Court hearing.

 

Commonwealth Court Senior Judge Dan Pellegrini rejected earlier this month Elliott's claim that Cruz was not a "natural-born citizen" as defined by the U.S. Constitution because he was born in Canada to a mother who was a citizen of the United States.

 

Pellegrini spent half of his decision determining whether the judiciary had jurisdiction over questions of eligibility to run for president. Cruz argued it was a question only for the Electoral College or Congress to determine, and that the court should be barred from hearing it under the political-question doctrine. But Pellegrini rejected that contention, finding there was no support for it under various sections of the U.S. Constitution, nor under the 12th Amendment. In doing so, he became what appears to be the first judge in the country hearing Cruz ballot challenges to address the merits of the issue.

 

The dispute as to whether Cruz was a ­citizen eligible for the presidency came down to the interpretation of Article II, Section 1, Clause 4 of the U.S. Constitution, which states that "'no person except a natural born citizen, or a citizen of the United States ... shall be eligible to the office of president.'"

 

Pellegrini said the term "natural-born ­citizen" was not defined and the U.S. Supreme Court has never addressed its meaning within the context of the eligibility of a candidate.

 

Elliott is a registered Republican voter in Pennsylvania. He argued "natural-born citizen" required a candidate to be born within the geographical boundaries of the United States to be eligible. Cruz, on the other hand, argued he was a natural-born citizen regardless of where he was born because his mother was a U.S. citizen when he was born and Cruz was therefore a U.S. citizen from the time of his birth, Pellegrini said.

 

The parties agreed that Cruz was born Dec. 22, 1970, in Calgary, Alberta, Canada. His mother, Eleanor Darragh, was born Nov. 23, 1934, in Delaware and has always been a U.S. citizen, the parties agreed. The parties also agreed Cruz was a citizen from the moment of his birth.

 

Pellegrini looked to cases challenging ballot eligibility dating back to 1916 and as recent as challenges to John McCain's eligibility given he was born on a U.S. military base in the Panama Canal Zone. Pellegrini also relied on an article by former U.S. solicitors general Neal Katyal and Paul Clement, who wrote that "natural-born citizen" means anyone who was a U.S. citizen from birth.

 

While he acknowledged other writings that have argued candidates in Cruz's position would not be eligible, Pellegrini sided with the definition adopted by Katyal, Clement and others.

 

"Having extensively reviewed all articles cited in this opinion, as well as many others, this court holds, consistent with the common-law precedent and statutory history, that a 'natural-born citizen' includes any person who is a U.S. citizen from birth," Pellegrini said.

 

Robert N. Feltoon of Conrad O'Brien represents Cruz.

 

Reprinted with permission from the March 21, 2016 issue of The Legal Intelligencer. © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

 

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