As controversy swirls over Sen. Ted CruzTed CruzRepublicans giving Univision the cold shoulder: report How 'Big Pharma' stifles pharmaceutical innovation AIPAC must reach out to President Trump MORE’s (R-Texas) eligibility to be president of the United States, there is one body that should not resolve that controversy: the federal courts.
Cruz was born in Canada to a Cuban father and an American mother. Recent comments from Donald TrumpDonald TrumpCombating opioid epidemic, repealing ObamaCare will hurt the cause Money doesn't buy elections and elections aren't rigged. Period. Ongoing wiretapping saga raises host of legal questions MORE and others have called into question whether he is a “natural born citizen,” a constitutionally required qualification. There are good reasons to believe that he is, but it is far from a settled question.
But courts don’t have to hear such challenges. In fact, it’s probably best that they don’t. There are many other bodies capable of resolving this dispute without judicial involvement.
First, we, the voters, can decide. If a significant number of voters believe that Cruz is ineligible, those voters can cast ballots for other candidates. The same held true for voters weighing McCain’s birthplace in the Panama Canal Zone, or Barack ObamaBarack ObamaCoal executive: Trump 'can't bring mining jobs back' Graham: Left is 'going insane' after Trump's win President travels again for meetings at Trump golf club in Va. MORE’s birth to a Kenyan father in Hawaii.
Voters can also moot the issue before it ever arises in a court. George Romney’s birth in Mexico, for instance, never became an issue—because he lost the election. While voters may not be voting for or against candidates because of their eligibility, they can render the issue irrelevant by voting for another candidate.
Second, presidential electors can decide. Presidential electors, after all, are actually the ones who cast votes for the president and vice president. While electors are often pledged to a presidential candidate, they do not always cast their votes for that pledged candidate. Many “faithless” electors have cast their ballots for candidates other than those they pledged to support. And these electors may decide, quite sincerely, to refuse to cast their ballots for a candidate if they conclude he is not constitutionally qualified.
And finally, Congress itself can decide. In 1800, Congress hotly debated whether it had the power to review the qualifications of candidates and the ballots cast by electors. Some thoughts Congress simply counted ballots; others thought Congress could review the qualifications and nullify votes cast for ineligible candidates.
That debate effectively ended in 1872, when a house of Congress refused to count three electoral votes cast for Horace Greeley. Greeley had died after the election but before the presidential electors convened to vote. Most electors opted not to vote for a dead man and cast their ballots for other candidates. But three electors from Georgia voted for Greeley. When the House gathered to count the votes, it refused to count the three votes for Greeley, presumably because it believed that a dead man was not eligible to be the president of the United States.
Indeed, Congress reasserted its authority just a few years ago. The Senate passed “Resolution Recognizing that John Sidney McCain, III, Is a Natural Born Citizen.” The Senate preemptively assured the people that McCain was a natural born citizen and that it would count electoral votes cast for him.
Given that voters, electors, and Congress can review the eligibility for a candidate, is there really a need for a federal court to do so?
States, after all, commonly list unqualified candidates on the ballot all the time. From the 1892 Prohibition Party’s vice presidential candidate, the 34-year-old James B. Cranfill, to the 2008 Socialist Worker’s Party presidential candidate, Nicaraguan Róger Calero. It is usually left to the political process, not the judicial process, to sort out eligibility.
If states choose to pass laws calling for election officials to closely scrutinize a presidential candidate’s eligibility, and if states invite courts to participate in that process, they are likely within their rights to do so. But most states have understandably not done so. They have recognized that the decision best remains with the voters, presidential electors, and Congress. It should stay that way.
Muller is an associate professor of law at Pepperdine University School of Law.