Ted Cruz, facing suits on Canadian birth, lawyers up

MARCH 2, 2016 6:26 PM

Cruz was born in Calgary, Canada, to an American mother and Cuban father

More than a half-dozen lawsuits challenge his being a ‘natural-born citizen’

A network of lawyers from the Federalist Society is coordinating his defense

BY MARIA RECIO

mrecio@mcclatchydc.com


WASHINGTON


Ted Cruz, tagged as “Canadian” by a needling Donald Trump since the GOP race tightened in January, rejects any idea of being ineligible to be U.S. president.

While Trump hasn’t followed up on his threat to sue Calgary-born Cruz over what he says is the Texas senator not meeting the constitutional requirement of being a “natural-born citizen,” plenty of other people have. Trump has warned that Democrats will disrupt the electoral process by suing if Cruz is the nominee.

And that’s caused Cruz a bit of trouble. He has had to lawyer up tofight the more than half-dozen lawsuits around the country, some in federal court, some in state court. A Cook County, Ill., judge tossed one of the suits Tuesday, not over the citizenship issue but over a technicality of how the papers were served.

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I’VE NEVER BREATHED A BREATH OF AIR ON THIS PLANET WHEN I WAS NOT A U.S. CITIZEN. Sen. Ted Cruz

On Thursday, a judge of the New York state Supreme Court in Albany will hear a case brought by two New York voters against the New York State Board of Elections for listing someone on the ballot who they allege is not eligible to be president.

“My guys are of the view that before you go to the voting booth you don’t want to waste your vote on someone who isn’t going to be eligible,” said Roger Bernstein, the Manhattan attorney for plaintiffs Barry Korman and William Gallo, who are retired.

The judge will consider issues not directly related to Cruz’s status, but whether the court has jurisdiction and whether papers were filed on time. Cruz’s position is that his mother was a U.S. citizen when he was born, conferring him natural-born citizenship. His father was a Cuban émigré.

The individual cases across the country appear unconnected. Plaintiffs range from a conservative Illinois supporter of Republican Ben Carson to a Texas lawyer who supports Bernie Sanders.

But the cases are still a headache for the Cruz campaign, which has hired attorneys to move to dismiss them. And there is always the chance a case will go forward, complicating the electoral picture.

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“He has lawyers all over the country doing this,” said Bernstein.

Grant Lally, a Mineola, N.Y, attorney, is representing Cruz in the New York case and is confident that it will be defeated, as other Cruz citizenship cases have been.

“I don’t think these are going anywhere,” said Lally in an interview. “New York law is crystal-clear,” he said, that objectors have three days to file after a candidate files to run. “These birthers filed 19 days too late.”

Cruz campaign spokeswoman Alice Stewart asked McClatchy to put questions in writing but did not respond to an email asking about the campaign’s defense effort.

According to several sources involved in the lawsuits who spoke only on the condition of anonymity because of the sensitivity of the issue, Cruz’s legal response is being led by James Ho, a Dallas attorney at Gibson, Dunn & Crutcher LLP who, like Cruz, is a former Texas solicitor general. Ho did not respond to requests for comment.

A source involved in a case but not authorized to talk to the media about Cruz’s defense efforts said there was “a network” of attorneys from The Federalist Society, a conservative group of lawyers founded by the late Supreme Court Justice Antonin Scalia, who are volunteering to defend Cruz.

In Texas, 85-year-old attorney Newton Schwartz, a Sanders supporter, in January filed one of the first cases challenging the Texas senator’s eligibility. “I think Cruz is disqualified,” Schwartz told McClatchy.

In response, Cruz attorneys, led by Houston lawyer Layne Kruse, said in a Feb. 22 filing that the suit was bringing the federal court into “a political dispute” where it lacked jurisdiction. The place to resolve it is in the Electoral College, said Kruse. Besides, Schwartz doesn’t have standing to sue, said the motion, and “Sen. Cruz is a ‘natural born citizen’ eligible to serve as president of the United States.”

The issue has, however, set off a spirited debate.

When Cruz was asked at a CNN town hall Feb. 18 about his eligibility, he gave a studied, academic response – one that combined two very distinct phrases.

“The law under the Constitution and federal law has been clear since the very first days of the Republic,” said Cruz, who is a Harvard Law School graduate. “The child of a U.S. citizen born abroad is a natural-born citizen. What the Constitution requires is for anyone to be president they have to be a natural-born citizen.

“It was the act of being born that made me a U.S. citizen.”

I KNOW EXACTLY WHEN TED’S GOING TO DROP OUT OF THE RACE. MARCH 12. THAT’S CANADIAN WEEK AT MYRTLE BEACH, WHEN ALL OF OUR CANADIAN FRIENDS GET 10 PERCENT OFF. Sen. Lindsey Graham, R-S.C.

But opponents point out that the Constitution distinguishes between being a “naturalized” citizen and being a “natural-born” citizen – a stipulation to be president. To some scholars the intent of the Founding Fathers is clear: They wanted to ensure that a foreign royal did not try to seize the new nation. And in that interpretation, “natural-born” refers to being “of the land,” or born in the United States itself.

Harvard Law School constitutional expert Laurence Tribe, who was Cruz’s professor, is the most visible scholar questioning the Texan’s eligibility.

“Cruz claims that the narrow, historical meaning of the Constitution is literal, except when it comes to the ‘natural born citizen’ clause,” said Tribe at a Harvard Federalist Society meeting last month. And, since the Constitution had its basis in English common law, that would mean a citizen born on American soil.

Cruz brought up the case of Sen. John McCain of Arizona, the 2008 GOP presidential nominee, who was born in the Panama Canal Zone. But that was a U.S. territory at the time and McCain himself said he did not know whether Cruz was eligible to be president.

The legal case, Tribe said, is “not settled” and has never gone to the Supreme Court. “The question is anything but open-and-shut,” said Tribe at the Federalist Society meeting. Via email to McClatchy he said Trump’s standing to sue “would be based in part on his status as one of the competitors injured by the Cruz candidacy.”

Delaware Law School professor Mary Brigid McManamon generated a media storm with an opinion piece inThe Washington Post, “Ted Cruz is not eligible to be president.” Professor Eric Posner at University of Chicago Law School wrote in Slatethat Cruz was not eligible.

But there are potent arguments that Congress, by statute, made the children of U.S. citizens born abroad citizens. And many scholars discount any court wanting to disqualify a major candidate on that basis.

“Trump has shown himself to be very shrewd in sensing each opponent’s key weaknesses and then exploiting them relentlessly,” said Larry Sabato, director of the Center for Politics at the University of Virginia, in an interview.

“What better way to keep Cruz on the defensive than to keep bringing up his eligibility to serve as president?”

“I respect Larry Tribe but a sizable majority of academics who have looked at this ‘natural-born’ controversy believe Cruz is eligible to serve,” Sabato said. “I would be shocked if the judicial process yielded any other result. But this is now a political issue far more than a constitutional one.”


Maria Recio: 202-383-6103,@maria_e_recio

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