This article originally ran in The Legal Intelligencer on March 10, 2016.
U.S. Sen. Ted Cruz, R-Texas, can remain on Pennsylvania's ballot as a candidate for president, a Commonwealth Court judge ruled in denying a challenge to Cruz's citizenship.
Senior Judge Dan Pellegrini rejected an elector'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 in Elliott v. Cruz 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.
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.
The challenge to Cruz's appearance on the ballot was raised by Carmon Elliott, a registered Republican voter in Pennsylvania. Elliott 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 represented Cruz.
"I believe the court should have declined to reach the merits and applied the political-question doctrine, but in reaching the merits, I'm pleased with the court's analysis and agree with his conclusion," Feltoon said.
Elliott, of Pittsburgh, represented himself. He said he was surprised Pellegrini based so much of his ruling on articles written about the subject rather than case law. Elliott said that while the Supreme Court has not addressed the issue as it relates to eligibility to be president, Elliott said there is case law from the court distinguishing "natural born citizen" and "naturalized." Elliott said he intends to appeal Pellegrini's ruling.
This wasn't the first time Cruz's ballot eligibility was addressed. On March 7, a New York judge dismissed a challenge to Cruz appearing on that state's ballot. But the judge did so on procedural grounds, finding the challenge wasn't timely raised, according to Legal affiliate New York Law Journal.
Feltoon noted there have been several challenges to Cruz's eligibility across the country, but they have all been dismissed under the political-question doctrine or other standing issues. Feltoon said he believed this was the first case to address the merits.
Reprinted with permission from the March 10, 2016 issue of The Legal Intelligencer. © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.