So Donald Trump’s got a new trophy wife, the Arizona Birther Bill. I’m not much interested in Trump (although I do like his tower in Chicago–it looks fantastic when you’re on Wabash St. in the Loop looking north), but I do find the bill, which would require presidential candidates to prove they are natural born citizens before being listed on the ballot, somewhat interesting.
Let’s start with the most important point–this bill is perfectly constitutional. Each state determines the qualifications for getting on its ballot, and since a president is required to be a natural born citizen, requiring a demonstration of that is just as legitimate as would be a demonstration that they are 35 years of age.
In fact since there currently is no actual process for pre-emptively enforcing the natural born citizen requirement, and post-election enforcement would necessarily be very messy, it may in fact be a good thing to jumpstart the creation of such a process. It would probably work better if there were a sort of national clearinghouse for this sort of thing, perhaps in the Federal Elections Commission, but still, it’s a legitimate state act.
What the supporters of the law seem to forget, however, is that the Full Faith and Credit clause would require them to accept at face value any other state’s documentation of a person’s birth. Arizona would be constitutionally barred from not accepting Hawaii’s documentation unless they could demonstrate compelling reason to not take it at face value. They couldn’t just set up their own “higher standard” of evidence. Nor could they substitute their own interpretation of the requirements for natural born status, because they are applying a federal constitutional principle–natural born will be whatever the Supreme Court or any future constitutional amendments say it will be.
The danger of this, of course, is the potential to hold up a candidate’s listing on the ballot for purely partisan reasons, perhaps keeping them off the ballot entirely or at least causing enough uncertainty among the public until late enough in the election cycle that it suppresses the candidate’s vote-total. I suspect that would not be likely to happen, though. First, candidates first register for the ballot during the primaries–any legal questions will get resolved there, and certainly every candidate will simply automatically supply documentation from their home state that, as noted, will have to be taken at face value.
Second, the only place where there is likely to be a serious attempt to keep someone “suspect” off the ballot is in a very highly partisan state that said candidate is unlikely to win, else there will be enough opposition to such a tactic that state legislators will have to be responsive to the public.
Finally, any legal challenge (which most likely could begin immediately in the federal courts, not just the relevant state’s court, because a constitutional question is involved) would be fast-tracked, judges would willingly slap injunctions on the states because of the risk of irreversible harm to the candidate if the state action is allowed to proceed, and judges would take other state’s documentation of birth at face value, as prima facie evidence of natural born citizenship.
So while this type of law could be abused, and while there are innumerable folk who would want to abuse it, I think our political and legal structures would make effective abuse difficult.