The States Have the Constitutional Power to Pass Legislation Prescribing PresidentialBallot Access Requirements Including Determining Whether a Candidate Meets theEligibility Requirements of Article II, Section 1, Clause 5

Originally Written & Posted Online @ Puzo1.BlogSpot.com on Friday, March11, 2011 @ 11:30 AM

The States Have the Constitutional Power to Pass Legislation PrescribingPresidential Ballot Access Requirements Including Determining Whether aCandidate Meets the Eligibility Requirements of Article II, Section 1, Clause 5

by Mario Apuzzo, Esq.March 11, 2011Tel: 732-521-1900 Email:Apuzzo@erols.comBlog:http://puzo1.blogspot.com

Article II, Section 1 of the U.S. Constitution tells us that the Electoral College is the mechanismused to elect the President. 3 U.S.C. Sec. 4. Article II, Section 1 also tells us how the ElectoralCollege is filled. It says that the states shall appoint the electors who will make up the ElectoralCollege, determining the manner of electing them and the quantity to be elected. The rest of Article II, Section 1 was changed by the Twelfth Amendment which now prescribes how thevoting is done, the votes are tallied and transmitted to Congress, and Congress confirms thosevotes and declares who shall be President. Further state authority over federal elections is foundin Article I, Section 4, Clause 1, which delegates to the state legislatures the initial authority forthe "Times, Places and Manner" of elections to Congress, with Congress having residualauthority to make such regulations. Hence, the Constitution gives to the states the authority overfederal elections and specifically to appoint its electors and decide how their votes are processedfor the purpose of determining who shall be President. There is therefore no question that stateshave the power to run their own presidential and vice-presidential elections. Storer v. Brown,415 U.S. 724, 730 (1974) (the Election Clause, Article I, Section 4, Clause 1 which applies toCongress was intended to grant states authority to protect the integrity and regularity of theelection process by regulating election procedure). As part of that process, states must also havethe authority over who shall be placed on any ballot to run for president and vice-president.

This state mechanism has been recently confirmed by an April 3, 2009Congressional ResearchService Memo by Legislative Attorney, Jack Maskell, entitled, “Qualifications for the Office of President of the United States and Legal Challenges to the Eligibility of a Candidate,” whereinhe stated:“The mechanics of elections of federal officials within the several states are administered understate law. [footnote 4] The quadrennial presidential election, although required since 1845 to beheld on the same day in each state [footnote 5] is, in an administrative and operational sense,fifty-one separate elections in the states and the District of Columbia for presidential electors.States generally control, within the applicable constitutional parameters, the administrativeissues, questions, and mechanisms of ballot placement and ballot access. [footnote 6]State election officials under some state ballot laws might thus require candidate "statements" or"declarations" of candidacy attesting to and/or certifying certain facts as a condition to be on theballot; in other states, representatives of the established political parties may certify names to theSecretary of State, or the designated elections official may place viable or "recognized"candidates on the presidential preference ballots. [footnote 7] In such cases, opposing politicalcandidates or political parties may have "standing" to legally challenge the placement of a nameof an opponent on the ballot, [footnote 8] or state law may specifically provide for a procedurefor timely protests to be filed concerning the qualifications of candidates. [footnote 9]Additionally, the relevant election official in the state, such as the Secretary of State, may haveauthority to exercise discretion to challenge a self-certification or a certification by a politicalparty of a candidate whom the election official believes is not eligible for the office. It wouldappear to be a matter of state law and interpretation as to whether election officials in a particularstate have discretionary authority to question the certification of a party's nominated candidate,or even a self-certification of a candidate, if such election officials were presented with actualprobative, documentary evidence to rebut any presumed or self-certified eligibility. In Keyes v.Bowen, the California Supreme Court dismissed a suit against the Secretary of State whichchallenged President Obama's eligibility and the California electoral votes for him, finding that:"Petitioners have not identified any authority requiring the Secretary of State to make an inquiryinto or demand detailed proof of citizenship from Presidential candidates," and thus mandamus(a writ of mandate) was not granted. [footnote 10] However, although no "ministerial duty" ormandatory requirement exists to support a mandamus action, there may still exist discretionaryauthority in such elections official." [footnote 11]. 11 See, for example, unreported case of Cleaver v Jordan, Case no. 7838 (Calif. Supreme Court minutes, Sep. 26, 1968), cert. denied,393 U.S. 810 (1968), where California court reportedly upheld discretionary authority of Secretary of State not to list ineligible candidate for President on the ballot; and Jenness vBrown, also unreported, case no. civil 72-204 (S.D. Ohio Sep. 27, 1972), concerning ballotplacement of an ineligible candidate in Ohio.”But the states’ power to regulate election procedure is not without limitations. As the Courtexplained in Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006):

“States, through the Elections Clause, exercise some regulatory authority over federal electionsbecause "as a practical matter, there must be a substantial regulation of elections if they are to befair and honest and if some sort of order, rather than chaos, is to accompany the democraticprocesses." Storer, 415 U.S. at 730. This authority, however, is not unlimited. Any regulation of time, place, and manner must not violate other portions of the Constitution. See, e.g., Smith v.Allwright, 321 U.S. 649, 661-62, 64 S. Ct. 757, 88 L. Ed. 987 (1944) ("Texas is free to conducther elections and limit her electorate as she may deem wise, save only as her action may beaffected by the prohibitions of the United States Constitution . . . ."). In addition, "while statesenjoy a wide latitude in regulating elections and in controlling ballot content and ballot access,they must exercise this power in a reasonable, nondiscriminatory, politically neutral fashion."Miller v. Moore, 169 F.3d 1119, 1125 (8th Cir. 1999).” Id. at 590.Discussing the qualification clause for Representatives and Senators found at Article I, Section 3,Clause 3 and Article I, Section 2, Clause 2, respectively, in U.S. Term Limits v. Thornton, 514U.S. 779 (1995), the U.S. Supreme Court stated that "the text and structure of the Constitution,the relevant historical materials, and, most importantly, the 'basic principles of our democraticsystem' all demonstrate that the Qualifications Clauses were intended to preclude the States fromexercising any such power and to fix as exclusive the qualifications in the Constitution." TheCourt said that a state has no authority to change, add to, or diminish the age, citizenship, andresidency requirements for members of Congress specified in their Qualification Clause found atArticle I, Section 2, Clause 2 and Article I, Section 3, Clause 3. See also Powell v. McCormack,395 U.S. 486 (1969) (relying on historical analysis and democratic principles held that thequalifications for Congress are “fixed” in the Constitution and cannot be supplemented byCongress). As Congress is limited in changing, adding to, or diminishing constitutionaleligibility requirements for members of Congress, so are the states. See Texas Democratic Partyv. Benkiser, 459 F.3d 582 (5th Cir. 2006) (same). The same reasoning would necessarily apply tothe Presidential eligibility clause found at Article II, Section 1, Clause 5. Under well-establishedprecedent, this qualification clause is exclusive and cannot be changed by a state in definition orapplication in a way that is contrary to the Constitution. Id. at 589. So we can see that states arenot allowed to make their own definitions of eligibility for public office which violate theConstitution. A state can only apply that definition for eligibility as is prescribed by theapplicable qualification clause of the Constitution.“If a statute is unconstitutional as applied, the State may continue to enforce the statute indifferent circumstances where it is not unconstitutional, but if a statute is unconstitutional on itsface, the State may not enforce the statute under any circumstances.” Women's MedicalProfessional Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir. 1997). In deciding who shall get onits election ballot, a state has to also make sure that it also complies with its own state statutesand laws. Texas Democratic Party, 459 F.3d at 592.Mr. Maskell states in hisCRS memothat there is no “formal administrative or legal requirementor oversight at the federal level, or specific state requirement to produce a birth certificate forballot placement.” Hence, several states are now working on legislation the purpose of which isto make sure that presidential candidates who would win an election and assume the Office of President and Vice-President are eligible to hold those offices under Article II, Section 1, Clause5. As we know, under the “natural born Citizen” clause, no one who is not a “natural born Citizen", 35 years old, and a 14-year resident may be President. Since the federal governmentdoes not require it, the states should demand to see documentary evidence showing that acandidate who intends not only to run for such office but also to assume the powers of that office