SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
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:
BARRY KORMAN and WILLIAM GALLO,
:
:
Petitioners,
:
:
-against:
Index No. 100240/2016
:
NEW YORK STATE BOARD OF ELECTION, :
:
Respondent.
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:
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______________________________________________________________________________
PETITIONER’S MEMORANDUM OF LAW
IN OPPOSITION TO DESIGNATION OF RAFAEL EDWARD
(“TED”) CRUZ FOR REPUBLICAN PRESIDENTIAL PRIMARY
______________________________________________________________________________

535 Fifth Avenue, 35th Floor
New York, New York 10017
Tel: (212) 748-4800
Fax: (646) 964-6633
rbernstein@rjbaw.com
Benjamin Dictor, Esq.
Eisner & Associates, P.C.
113 University Place
New York, NY 10003
Tel: (212) 473-8700
ben@eisnerassociates.com
Attorneys for Petitioners

Statement of Facts
The sole fact relevant to this proceeding is the fact that Rafael Edward (“Ted”)
Cruz was not born inside the territorial jurisdiction of the United States of America. Ted
Cruz was born in Calgary, Province of Alberta, Canada. See Bernstein Aff., Exhibit A
(Cruz’s Canadian birth certificate). Accordingly Cruz is a natural born Canadian citizen
at common law and also by statute under the Canadian Citizenship Act, § 3(1)(a).
Although Cruz notes that one of his parents was an American citizen at the time
of his Canadian birth1, that fact is irrelevant because it does not make him a “naturally
born” American citizen. A child can be naturally born in only one place. Cruz was
naturally born on the soil of Canada, not in the United States of America. Moreover, in
American common law, hereditary citizenship from parent to child does not exist.
Therefore the fact of Cruz’s mother’s American citizenship has no bearing on whether
Cruz is a natural born citizen of the United States of America.
Argument
The rules for eligibility to be President of the United States are specifically
enumerated in the U.S. Constitution:
No person except a natural born Citizen, or a Citizen of the
United States, at the time of the Adoption of this
Constitution, shall be eligible to the Office of President;
neither shall any Person be eligible to that Office who shall
not have attained to the Age of thirty-five Years, and been
fourteen Years a Resident within the United States.
U.S. Constitution, Article II, § 1, Cl. 5. The Constitution makes an unambiguous
1

Cruz’s mother, Eleanor Elizabeth Wilson, was a native-born United States citizen born in
Delaware. She was living in Canada when Cruz was born there. Cruz’s father, Rafael
Bienvenido Cruz, was a Cuban national when Cruz was born in Canada.

1

distinction between being a citizen and being a natural born citizen. To be a member of
Congress it is necessary to be a “citizen” of the United States. U.S. Constitution, Article
I, § 1, Cls. 2 & 3. However, Article II of the Constitution requires that only a “natural
born Citizen” may be President of the United States. This distinction necessarily means
that a citizen is legally different from a natural born citizen.
More specifically, the part of Article II which is pertinent to this case reads as
follows:
No person except a natural born Citizen . . . of the United
States . . . shall be eligible to the Office of President . . . .
Art. II, § 1, Cl. 5. Petitioners have submitted uncontested evidence that Cruz was born in
Canada. As we show below, this means that Cruz was not a “natural born Citizen” of
the United States. He is therefore ineligible for the office of United States President.
I.

Cruz Is Not a “Natural Born Citizen” of the
United States Under Article II, Section 1, Clause 5

Natural born citizenship is, quite simply, citizenship which arises naturally. That
is to say, it pertains to a citizenship which arises by itself without the need for any
intervention on the part of the government, such as by an Act of Congress. Instead, it
arises of its own natural accord, that is, birth, and is thus appropriately called natural
born citizenship. The only other form of citizenship arises solely by intervention of the
government through an Act of Congress. Such citizenship does not occur naturally, of
its own accord. This is naturalized citizenship. No amount of semantic gamesmanship
can convert a naturalized citizen into a natural born citizen. The Supreme Court has fully
accepted this distinction, as outlined below.

2

It is axiomatic that terms in the U.S. Constitution that have a common law history
are to be interpreted in accordance with their meaning at the time the Constitution was
adopted. “The language of the Constitution and of many acts of Congress could not be
understood without reference to the common law.” Moore v. United States, 91 U.S. 270,
274, 23 L.Ed.346, 1875 WL 17916 at *3 (1875); see also Ex parte Grossman, 267 U.S. 87,
108-09 (1925) (“[t]he statesmen and lawyers of the Convention who submitted it to the
ratification of the Conventions of the thirteen States, were born and brought up in the
atmosphere of the common law, and thought and spoke in its vocabulary”).
In 1788 the term “natural born citizen” had only one meaning at common law:
the jurisdiction in which a person is born is the sole criterion for determining citizenship.
Put otherwise, the “jus soli” (law of the soil) determined citizenship in 1788.
In 1789, James Madison, known for his central role in the drafting of the
Constitution, had this to say in a speech before Congress:
It is an established maxim that birth is a criterion of
allegiance. Birth . . . derives its force sometimes from
place, and sometimes from parentage; but . . . place is
the most certain criterion; it is what applies in the United
States . . . .”2
Many courts have identified place of birth as the sole fact that determined
whether a person was a natural born citizen at the time the Constitution was drafted.
The U.S. Supreme Court has spoken to this issue. One key point stressed by the Court is
this: United States citizenship arises either by virtue of being born within the territorial
limits of the United States, or by an act of naturalization provided for by the United

2

McManamon, The Natural Born Citizen Clause as Originally Understood, 64 Cath. Univ. Law
Review 317, at p. 328.

3

States Congress; the two routes are mutually exclusive and there is no hereditary
citizenship:
[United States citizens are] such only as are either born or made so, born
within the limits and under the jurisdiction of the United States, or
naturalized by the authority of law, either in one of the States before the
Constitution, or since that time, by virtue of an act of the Congress of the
United States . . . The right of citizenship never descends in the legal sense,
either by the common law, or under the common naturalization acts. It is
incident to birth in the country, or it is given personally by statute.
United States v. Wong Kim Ark, 169 U.S. 649, 665 (1898) (emphasis supplied; internal
quotations and citations omitted). The Court further explained that “[t]he fundamental
rule of citizenship by birth within the dominion of the United States, notwithstanding
alienage of parents, has been affirmed, in well considered opinions of the executive
departments of the Government, since the adoption of the Fourteenth Amendment of
the Constitution.” Id. at 688 (emphasis added).
Importantly, the Supreme Court recognized that so far ass the common law is
concerned, the rule of jus soli did not include conferring citizenship on children born
abroad of American parents:
The notion that there is any common-law principle to naturalize the
children born in foreign countries, of native-born American father ‘and’
mother, father ‘or’ mother, must be discarded. There is not, and never was,
any such common-law principle.’ Binney, Alienigenae, 14, 20; 2 Am. Law
Reg. 199, 203. And the great weight of the English authorities, before and
since he wrote, appears to support his conclusion. Calvin’s Case, 7 Coke,
17a, 18a; Co. Litt. 8a, and Hargrave’s note 36; 1 Bl. Comm. 373; Barrington,
Statutes (5th Ed.) 268; Lord Kenyon, in Doe v. Jones, 4 Term R. 300, 308;
Lord Chancellor Cranworth, in Shedden v. Patrick, 1 Macq. 535, 611;
Cockb. Nat. 7, 9; De Geer v. Stone, 22 Ch Div. 243, 252; Dicey, Confl.
Laws, 178, 741. ‘The acquisition,’ says Mr. Dicey (page 741), ‘of nationality
by descent, is foreign to the principles of the common law, and is based
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wholly upon statutory enactments.’
Wong Kim Ark, 169 U.S. at 670 (emphasis supplied).
In 1971 the Court was faced with a case pertaining to a man who was born
abroad to a U.S. citizen mother, as is the case with Cruz. The man failed to meet a
condition subsequent to his birth that was required by the naturalization statute in order
for him to retain the U.S. citizenship which he would otherwise have by statute. In
deciding his case, the Court rejected the claim that parental citizenship conferred
citizenship on a descendant as a common law matter:
Not until 1934 would that person have had any conceivable
claim to United States citizenship. For more than a century
and a half no statute was of assistance. Maternal citizenship
afforded no benefit.
Rogers v. Bellei, 401 U.S. 815, 826 (1971). Citing Wong Kim Ark, the Court again concluded
that “naturalization by descent’ was not a common-law concept but was dependent,
instead, upon statutory enactment.” Rogers, 401 U.S. at 828 (internal citations omitted).
The Court in Wong Kim Ark summed up its conclusions as follows:
The foregoing considerations and authorities irresistibly lead
us to these conclusions: The fourteenth amendment affirms
the ancient and fundamental rule of citizenship by birth
within the territory, in the allegiance and under the
protection of the country, including all children here born of
resident aliens, with the exceptions or qualifications (as old
as the rule itself) of children of foreign sovereigns or their
ministers, or born on foreign public ships, or of enemies
within and during a hostile occupation of part of our
territory, . . . .
169 U.S. at 693 (emphasis supplied).
5

For the sake of emphasis, however, let us consider again what the Court said
about whether at common law United States citizenship could arise by virtue of being
born to a mother or father who was a United States citizen:
“There is not, and never was, any such common-law principle.”
Wong Kim Ark, 169 U.S. at 670 (citations omitted). The Court’s statement of the law of
citizenship is a statement about an accepted common law rule of citizenship which
predates the Fourteenth Amendment and, in fact, is “ancient” in nature. 169 U.S. at 667.
These statements must be taken as being the definitive statement by the Court on how
natural born citizenship is acquired: it is not acquired by birth when foreign born
children of U.S. citizens obtain citizenship under a naturalization statute.
II.

The Naturalization Act of 1790 Does Not
Convert Naturalization to Natural Birth

The Naturalization Act of 1790, it is said, supports the idea that Cruz is a natural
born citizen of the United States. Precisely the opposite is the case. As will be seen, the
very existence of that Act reinforces the principle that individuals born abroad,
regardless of parentage, must be naturalized pursuant to statute and do not meet the
common law definition of a naturally born citizen. Only sleight of hand can convert
citizenship by statutory naturalization into common law citizenship arising from birth
within the relevant jurisdiction.
The specific provision of the 1790 Act which is claimed to support the idea that
“natural born citizen” somehow included individuals not born within the United States
but having an American citizen parent was as follows: “And the children of citizens of
the United States that may be born beyond Sea, or out of the limits of the United States,
6

shall be considered as natural born Citizens” (emphasis supplied).3 It is said that this
provision sheds light on the meaning of “natural born” in Article II because some (not
all) of the authors of Article II constituted a few (again, not all) of the Senators and
Congressmen in the First Congress. There are many flaws in this line of argument.
First, the Naturalization Act of 1790 was repealed in 1795 at the behest of James
Madison, a key author of the Constitution. It was re-enacted in the Naturalization Act of
1795. There the Fourth Congress changed the wording pertaining to citizenship for
children born abroad to American citizens say that those born abroad to children of
American parents “. . . shall be considered as citizens of the United States”.4
The deletion of the phrase “natural born” that had been used in the 1790 Act, is
striking. Following the logic of the Cruz position, one must conclude that the members
of the Fourth Congress, in deleting the phrase “natural born citizen” from the
naturalization statute in 1795, intended to prevent the acquisition of natural born
citizenship for persons born after 1795 such as Cruz. For if the Act of 1790 had
somehow transformed naturalized citizens born abroad into natural born citizens born
in the United States, then it follows that Congress was preventing natural born
citizenship from arising via naturalization by deleting that phrase in 1795. Cruz has no
answer to this inconvenient corollary to his effort to invoke the Naturalization Act of
1790.
3

http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.htm
l

4

Id. There is reason to think that the change was simply the correction of an erroneous
use of the term “natural born”. “Referring to ‘the inadvertent use of the term
natural-born in the Act of 1790,’ one author averred that “it was Mr. Madison who
had participated in the drafting of the Constitution who had discovered the error and
authorized the bill to correct it by deleting the term from the act of 1795.’”
McManamon, The Natural Born Citizen Clause as Originally Understood, supra, at p. 336,
fn. 137.

7

In fact, as McManamon has pointed out, there were several decades in the 1800s
when there was no statute at all on the books to give U.S. citizenship to children born
abroad to U.S. citizens.5 So if the theory about the 1790 Act embraced by Cruz is
correct, then this would be an example of Congress denying natural born citizenship at
the constitutional level during much of the nineteenth century.
With that in mind, let us look once more examine the Supreme Court decision in
Rogers v. Bellei. Bellei was born in Italy in 1939 to a U.S. citizen mother. 401 U.S. at 817.
Under the naturalization statute in effect at his birth, Bellei immediately gained U.S.
citizenship; however, that statute also provided that Bellei would lose his U. S.
citizenship “. . . unless, after age 14 and before age 28, he shall come to the United States
and be physically present here continuously for at least five years.” 401 U.S. at 816-817.
Bellei failed to comply with this condition subsequent, and as the Supreme Court held,
therefore lost his U.S. citizenship. Id. The cases proves that a child born abroad who,
like Cruz, automatically gains U.S. citizenship under a statute by reason of being born to
an American parent, does not at all gain the status of a naturally born citizen (who
would not lose his citizenship by reason of living abroad).
One must ask: “If the citizenship which arises by statute is really natural born
citizenship at the constitutional level, then how is it that Congress could deny such
status for years at a time by not providing for such status by statute, or by providing it
only when subject to certain statutory limitations, as in the Bellei case? Or conversely, if
natural born status can be denied by the refusal of Congress to provide for it by statute,
then how can it have meaning as a specific requirement in the Constitution itself? These

5

https://www.washingtonpost.com/opinions/ted-cruz-is-not-eligible-to-be-president/2016/0
1/12/1484a7d0-b7af-11e5-99f3-184bc379b12d_story.html

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questions answer themselves.
In short, the phrase “natural born Citizen” means something more than simply
“born a Citizen” or “a Citizen since birth”. It is instead a term of art in common law. If
such were not the case, then why would not the Constitution have been worded to
reflect that? Why would not the Constitution say: “No person except a person who has
been a citizen since birth shall be eligible . . .”? The Constitution does not have this
concept (which is the one advocated by Cruz); instead, it expressly requires that the
President be a natural born citizen.
Second, there is a cogent alternative explanation to the idea that the
Naturalization Act of 1790 extended natural born citizen status at the constitutional
level. Consider what the Act itself had to say about how immigrants generally could
become United States citizens:
Be it enacted by the Senate and House of Representatives of
the United States of America, in Congress assembled. That
any Alien being a free white person, who shall have resided
within the limits and under the jurisdiction of the United
States for the term of two years, may be admitted to become
a citizen thereof on application to any common law Court of
record in any one of the States wherein he shall have resided
for the term of one year at least, and making proof to the
satisfaction of such Court that he is a person of good
character, and taking the oath or affirmation prescribed by
law to support the Constitution of the United States, which
Oath or Affirmation such Court shall administer, and the
Clerk of such Court shall record such Application, and the
proceedings thereon; and thereupon such person shall be
considered as a Citizen of the United States.26
It is clear that Congress was simply streamlining the process for children born abroad to
U.S. citizen parents to be able to enter the country and enjoy all the rights of citizenship
(e.g., the right to inherit property) without first having to go through the entire process

9

and waiting period of naturalization for other immigrants. Conversely, it is hardly
reasonable to conclude that Congress somehow wanted to change the eligibility
requirements in Article II of the Constitution (first by supposedly granting such
constitutional status by statute, and then by deleting it). Nor did Congress have any
power to amend a provision of the Constitution by statute; only a super-majority of the
states or a constitutional convention may amend it. U.S. Const., Art. V.
Third, the language of the Naturalization Act of 1790 itself does not support the
idea that those who are made citizens under the statute are in fact natural born citizens.
As the statute says, children born abroad to United States citizens and who are made
citizens under that statute “. . . shall be considered as natural born” citizens (emphasis
supplied).6 In like manner, one might say that one shall treat an artificial flower as if it
were a real flower. But that does not of course transform it into a real flower. Thus, the
wording of the statute itself points to the conclusion that such citizenship is not true
natural born citizenship, but rather that those who are made citizens under the Act shall
simply be considered as natural born citizens for naturalization purposes.
Fourth, perhaps the strangest aspect of this whole debate lies in the fact that
those who think that the Naturalization Act of 1790 supports the idea that Cruz is a
natural born citizen completely overlook the very name of the statute itself: the
Naturalization Act of 1790 (emphasis supplied). Naturalization and natural born, as we
have seen, are antithetical legal concepts.

6

http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html

10

III.

The Common Law Meaning of the Phrase “Natural Born Citizen”
Cannot be Determined by Reference to the Circumstances of
John Jay or John McCain, Let Alone Governor George Romney

It apparently was John Jay who first suggested that the Constitution should
contain a natural born citizen requirement in order to hold the office of President of the
United States. At the convention in Philadelphia in 1787 where the Constitution was
being drafted he made a request in writing to George Washington that the Constitution
contain exactly this requirement.7 One line of argument says that, as a good parent, Jay
surely could not have intended to have his own foreign-born children be made ineligible
to hold the office of President.
The very unusual premise is that the possible careers of his children were part of
Jay’s object in recommending the inclusion of the “natural born citizen” requirement for
the Presidency. We know, however, that this is not the case; Jay urged adoption of the
requirement as “a . . . strong check to the admission of Foreigners into the
administration of our national Government expres[s]ly that the Command in chief of
the [A]merican army shall not be given to, nor devolve on, any but a natural born
Citizen.”8
Moreover, as the Supreme Court has recognized, the principle of jus soli has
always considered children of the diplomatic servants of a government who are
stationed abroad to be natural born citizens . Wong Kim Ark, 169 U.S. at 683-685. This is
an ancient principle of – again – common law. See McManamon, supra, at p. 331. Jay

7

McManamon, supra, at p. 329 n.80.

8

Id. at pp. 328-29.

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certainly knew of the exception to jus soli for children of a country’s diplomats when
those diplomats were stationed abroad (an embassy being an extension of a country’s
own jurisdiction). Thus the argument based on John Jay sub silentio contemplating his
children’s careers has no merit.
Another contention is that the meaning of natural born citizenship was somehow
settled when John McCain ran for President of the United States in 2008. McCain was
born in within the Coco Solo Naval Air Station, a United States military installation in
the Panama Canal Zone, while his father was serving there as an officer in the United
States Navy, and on that basis some questioned whether McCain was a natural born
citizen. However, a military installation in the Canal Zone was indisputably United
States territory to which the principle of jus soli extended. The McCain situation has no
precedential significance for this case, in which Cruz at birth was a natural born citizen
of a foreign sovereign. As to George Romney’s brief campaign for the Presidency, there
was no occasion for any court to rule on his eligibility before he withdrew.
IV.

Article II of the Constitution Calls for the States, Not the Electoral
College, to Determine Candidate Eligibility in State Primary Elections

NY Election Law, § 6-122 provides that: “[a] person shall not be designated . . .
for a public office . . . who . . . (2) is ineligible to be elected to such office. . . ; or (3) who,
if elected will not at the time of commencement of the term of such office or position,
meet the constitutional . . . qualifications thereof . . . .” (emphasis supplied). Hence the
Legislature has vested in this Court jurisdiction to determine the eligibility of Cruz for
the office he is seeking.

12

The Cruz campaign apparently contends that the Electoral College procedures
contained in the Twelfth Amendment are the exclusive forum for determining a
candidate’s qualifications to hold the office of President of the United States. This
contention has no merit. The Twelfth Amendment provides:
The Electors shall meet in their respective states, and vote by
ballot for President and Vice-President, one of whom, at
least, shall not be an inhabitant of the same state with
themselves; they shall name in their ballots the person voted
for as President, and in distinct ballots the person voted for
as Vice-President, and they shall make distinct lists of all
persons voted for as President, and all persons voted for as
Vice-President and of the number of votes for each, which
lists they shall sign and certify, and transmit sealed to the
seat of the government of the United States, directed to the
President of the Senate.
The President of the Senate shall, in the presence of the
Senate and House of Representatives, open all the certificates
and the votes shall then be counted.
The person having the greatest Number of votes for
President, shall be the President, if such number be a
majority of the whole number of Electors appointed; and if
no person have such majority, then from the persons having
the highest numbers not exceeding three on the list of those
voted for as President, the House of Representatives shall
choose immediately, by ballot, the President.
Clearly there is no provision in the Twelfth Amendment for the electors to determine
whether a President-elect meets the Article II qualifications for the office; their job is
limited to voting for the candidate that prevailed in the election held in their state. See,
e.g., NY Election Law, § 12-100 et seq.
Nor does 3 U.S.C. § 15, a 19th century statute enacted in the wake of the HayesTilden contested election of 1876, provide for a determination by either the Electoral
13

College of Congress as to whether a candidate meets the Constitutional qualifications
for the Presidency. That statute simply authorizes consideration of irregularities in the
casting of Electoral College ballots.
The suggested procedure of awaiting post-election proceedings of the Electoral
College is shot through with practical as well as legal disaster potential. The gist of the
argument is that – after having gone through the entire general election process leading
up to November of the Presidential election year, and the general voting public having
selected a President-Elect, and the Electors having been designated to vote for the
candidate prevailing in their state (NY Election Law § 12-100 et seq.) -- the Electoral
College shall be the first place to consider whether the President-elect is too young (age
34), or not resident in the United States for the required fourteen years, or not a natural
born citizen of the United States.
It would be a brave member of Congress indeed who, in the face of the postelection momentum afforded a President-elect, would challenge the President-elect’s
qualifications so late in the process; there would instantly be a huge cry of “foul”.
Moreover, the result would to create ongoing uncertainty as to who the next president
would be. It is not realistic to think that the Electoral College should be the first place
that considers eligibility for the office of President. The Cruz contention that this
fundamental issue should not be heard until after the election is a thinly-veiled effort to
insure that the issue of ineligibility because he is not a natural born United States citizen
is never decided.
A legally ineligible candidate cannot be allowed to participate in a presidential
14

election without doing grave violence to the Constitutional qualifications clause.
Certainly the authors of the Constitution and its amendments did not intend to leave
this critical issue to be determined only after an election has already taken place. Indeed,
there is not one word in the Twelfth or Twentieth Amendments that displaces, or even
seeks to displace, state jurisdiction over elections within a state. In fact presidential
elections are “an area over which the Constitution gives Congress no authority
whatsoever.” Arizona v. Inter Tribal Council of Arizona, Inc., ___ U.S. ___. 133 S. Ct. 2247,
2268 n.2(2013) (Alito, J., dissenting on other grounds).
By contrast, Article II of the Constitution not only delivers to the states full
control over the method of picking Presidential electors; it requires them to exercise that
power: “Each State shall appoint, in such Manner as the Legislature thereof may direct,
a Number of Electors, . . . .” (emphasis supplied). It is therefore abundantly clear that
the Constitution was written to confer on the states the power, indeed the obligation, to
enact laws such as NY Election Law § 6-122 which pertain to the Presidential election
process within each state. There is no reason that this power should fail to include
determining whether a candidate for President in a primary election meets the
fundamental Constitutional requirements for that office. Otherwise voters could readily
cast their votes for an ineligible person during the primary – and only after the general
election would they find out that their candidate was disqualified. At that point it
would, of course, be far too late to vote in a primary for another candidate who is
eligible.

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Conclusion

The petition should be granted and the New York State Board of Election should
be ordered not to include Cruz in the April 19, 2016 Republican Primary Election.
Dated: New York, New York

February 17, 2016
Respectfully submitted,

oger J Jernstein, Esq.
535 FMh Avenue, 35th Floor
New York, New York 10017

Tel: (212) 748-4800
Fax: (646) 964-6633
rbernsteinCOrjbaw.com
Benjamin Dictor, Esq.
Eisner & Associates, P.C.

113 University Place
New York, NY 10003

Tel: (212) 473-8700
bcn@eisnerassociates.com

Attorneys for Petitioners

16