This article originally ran in The Legal Intelligencer on March 31, 2016.
U.S. Sen. Ted Cruz, R-Texas, will be on the April 26 primary ballot in Pennsylvania now that the state's Supreme Court has affirmed a ruling deeming Cruz a "natural-born citizen."
In a one-paragraph order Thursday, the Supreme Court denied a request for oral argument in Carmon Elliott's challenge to Cruz's ballot eligibility. The court instead affirmed a single-judge Commonwealth Court ruling that rejected the argument Cruz was not eligible to run for president because he was born on Canadian soil.
The Supreme Court had set an aggressive timetable for Elliott's appeal of the lower court ruling, taking the briefs last week and entertaining requests for oral argument and requests to intervene or file amicus briefs from three law professors.
Elliott's attorney, David Farrell of Norristown, was not immediately available for comment. Cruz's lawyer, Robert Feltoon of Conrad O'Brien, said he was "very pleased with the outcome of the appeal" and that he wished the senator well in the upcoming primary.
In a March 9 ruling, Commonwealth Court Senior Judge Dan Pellegrini rejected 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 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.
Elliott, a registered Republican voter from Pittsburgh, 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.
Other courts around the country have rejected similar challenges to Cruz's ballot eligibility, but have done so on procedural grounds.
Widener University Delaware School of Law professor Mary B. McManamon filed an amicus brief in the Pennsylvania Supreme Court appeal in support of Elliott's position. McManamon said she thought the Commonwealth Court's ruling on the merits was "extremely weak."
Victor Williams, a professor at Catholic University of America's Columbus School of Law in Washington, D.C., who is also running for president as a Republican, filed the motion to intervene that was denied. He did not return a call seeking comment.
Harvard Law School professor Einer Elhauge also filed an amicus brief in the case and did not return a call seeking comment.
Both Williams and Elhauge supported Elliott's position that Cruz was not eligible to be on the ballot.
Reprinted with permission from the March 31, 2016 issue of The Legal Intelligencer. © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.