The Independent View: Who in NH Gets to Decide If a Candidate is a Natural-Born Citizen?

Recently, the New Hampshire Ballot Law Commission announced that it would hear disputes regarding Ted Cruz's natural-born citizenship.

But the New Hampshire State Legislature has not authorized it to hear them.

Mr. Cruz was born in Canada to a Cuban father and an American mother. The challenge to Mr. Cruz alleges citizenship-based complaints about his eligibility. The challenges is scheduled to be heard November 24.

There are at least three groups of people who get to decide, at the primary level and beyond.

Voters - The people get to vote for their preferred candidates, and they are welcome to reject a candidate whom they believe is not eligible for federal office.

Presidential Electors - In Presidential elections, the ballots cast are actually for slates of Presidential electors. They are often pledged to support a particular candidate, and there is a complicating factor about whether a state can compel them to support that particular candidate. But they may abandon a candidate if they are convinced that candidate is ineligible. Indeed, many electors abandoned their support of Horace Greeley for Vice President in 1872 because he died before taking the electoral college met and, arguably, a dead person is not eligible to obtain that office.

Congress - At the end of the process, when the electors have cast their votes, it's possible, but disputed, that Congress can reject the votes of the electors if Congress independently concludes that a candidate is ineligible. Indeed, this is precisely what the House did with votes cast for the late Horace Greeley.

But what role do the states have? Or, specifically, what role does the state of New Hampshire have in establishing rules for ballot access that refer to qualifications?

The Constitution provides that electors are appointed "in such manner as the Legislature thereof may direct." There is good reason to think that the legislature, which could act as voter in this case, can condition the election of Presidential electors upon its own preferences regarding federal qualifications and determinations of eligibility.

New Hampshire law does require candidates to sign a declaration under penalty of perjury that they are "qualified to be a candidate for President of the United States pursuant to . . . the United States Constitution, which states, 'No person except a natural born citizen . . . .'" (RSA 655:47(I).)

But who decides whether that person has committed perjury?

It isn't the Ballot Law Commission.

The jurisdiction of the Ballot Law Commission is described in RSA 665:6. In nomination paperwork cases, it extends to the nomination papers under RSA 655:37-44. But it has no jurisdiction over cases under RSA 655:47.

That's because the Secretary of State, not the Ballot Law Commission, holds the power under RSA 655:47. Consider RSA 655:47(III): "The decision of the Secretary of State as to the regularity of declarations of candidacy filed under this section shall be final."

The state legislature, then, has decided that it wants an additional level of review of the qualifications of Presidential candidates, beyond the voters, the electors, and Congress. And it wants that review performed by the Secretary of State. But the Ballot Law Commission is not that entity.