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TABLE OF CONTENTS
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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ORDER IN QUESTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF SCOPE AND STANDARD OF REVIEW . . . . . . . . . . . . . . . . 1
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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I. THE POLITICAL QUESTION DOCTRINE DOES NOT APPLY . . . . . . . . . 4

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A. The Federal Constitution Does Not Reserve the Issue of Presidential
Eligibility to the Presidential Electors or the U.S. Congress . . . . . . . . . . . . . 5

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B. None of the Other Baker v. Carr Standards Even
Suggests That There Is a Political Question in This Case. . . . . . . . . . . . . . 10

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II. RESPONDENT CRUZ IS INELIGIBLE FOR PRESIDENT BECAUSE
HE IS NOT A “NATURAL BORN CITIZEN” OF THE UNITED STATES. 15

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A. The Constitution Distinguishes Between “Citizen” and
“Natural Born Citizen”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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B. “Natural Born Citizen” Is A Common Law Term Which Must Be Interpreted
In Accordance With Its Meaning At The Time Of The Framing. The Seminal
Case of Wong Kim Ark Makes Clear That The American Common Law Rule
Of Jus Soli Did Not Confer Citizenship On Foreign-Born Children of U.S.
Parents (With An Ancient Exception for Diplomats’ Children). . . . . . . . . . 19

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C. The American Common Law Definition of “Natural Born Citizen”
in 1787-88 Did Not Encompass the British Parliament’s Naturalization
Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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D. The Framers’ Intent in 1787 Cannot Be Ascertained From a 1790 Statute.
Moreover, With Framer James Madison’s Active Leadership, the 1790
Statute Was Repealed in 1795 and Replaced By a Statute Which Deleted the
Very Text That Cruz Cited in the 1790 Statute. . . . . . . . . . . . . . . . . . . . . . 29

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Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

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TABLE OF AUTHORITIES

Cases:

Page No.

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Arizona v. Inter Tribal Council of Arizona, Inc., ___ U.S. ___.,
133 S. Ct. 2247 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Baker v. Carr, 369 U.S. 186 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-5, 10-12, 17
Bush v. Gore, 531 U.S. 98 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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Commonwealth v. Stotelmyer, 110 A.3d 146 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Donohue v. Bd. of Elections of NY, 435 F.Supp. 957 (E.D.N.Y 1976) . . . . . . . . . . . . . 15

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Ex parte Grossman, 267 U.S. 87 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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Hospital & Healthsystem Ass'n of Pa. v. Commonwealth,
621 Pa. 260 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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In re KBR, Inc., Burn Pit Litig., 744 F3d 326 (4th Cir. 2014),
cert. denied, 135 S. Ct. 1153 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11

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Kerr v. Hickenlooper, 744 F.3d 1156 (10th Cir. 2014),
vacated on other grounds, 135 S.Ct. 2927 (June 30, 2015) . . . . . . . . . . . . . . . . 12
Lebanon Val. Farmers Bank v. Commonwealth, 623 Pa. 455 (2013) . . . . . . . . . . . . . . . 1

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Levy’s Lessee v. McCartee, 31 U.S. 102 (1832) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Lindsay v. Bowen, 750 F.3d 1061 (9th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

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Luria v. United States, 231 U.S. 9 (1913) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 24

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Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803 . . . . . . . . . . . . 12, 29, 32
Miller v. Albright, 523 U.S. 420 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Moore v. United States, 91 U.S. 270 (1875) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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Rogers v. Bellei, 401 U.S. 815 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
State of Kansas v. State of Colorado, 206 U.S. 46 (1907) . . . . . . . . . . . . . . . . . . . . . . 28
Sweeney v. Tucker, 473 Pa. 493 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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U.S. Dept. of Commerce v. Montana, 503 U.S. 442 (1992) . . . . . . . . . . . . . . . . . . 13, 14
United States v. Schwimmer, 279 U.S. 644 (1929) . . . . . . . . . . . . . . . . . . . . . . . . . 22, 24

United States v. Wong Kim Ark, 169 U.S. 649 (1898) . . . . . . . . . . . . . . . . . . . . 10, 21-25

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Western Union Tel. Co. v. Call Pub. Co., 181 U.S. 92 (1901) . . . . . . . . . . . . . . . . . . 28

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Statutes:

1790 Naturalization Act (1 Stat. 103) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-33

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1795 Naturalization Act (1 Stat. 414) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

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18 U.S.C. § 1431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3 U.S.C. § 1 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

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3 U.S.C. § 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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3 U.S.C. § 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
42 Pa. C.S. § 723(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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British Nationality Act of 1730, 4 Geo. 2, c. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Judiciary Act of 1789 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

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Pa. Constitution

Pa. Constitution, Article 9, § 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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U.S. Constitution:
Article II, § 1, cl.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9
Article II, § 1, cl.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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Twelfth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Twentieth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

U.S. Const., Twelfth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 9, 18

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U.S. Const., Twentieth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8

Legislative Materials:

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Journal of the House of Representatives of the United States . . . . . . . . . . . . . . . . . 30-33

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Other Authorities:

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32

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Journal of the Senate of the United States

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Bernard Bailyn, The Debate on the Constitution (Part One), The Library of America
(1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Blackstone, Commentaries, Vol. II, Ch. 10, fn. n (St. George Tucker edition of 1803) 21

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Mary Brigid McManamon, The Natural Born Citizen Clause as Originally Understood,
64 Cath. Univ. Law Review 317 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21, 25

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Paul Clement and Neal Katyal, On the Meaning of “Natural Born Citizen”,
128 Harvard Law Review Forum 161 (2015) . . . . . . . . . . . . . . . . . . . . . . . 25, 27

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STATEMENT OF JURISDICTION
This Court has exclusive jurisdiction because this is an appeal from a final
order entered by the Commonwealth Court in a matter originally commenced in

ORDER IN QUESTION

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that court. 42 Pa. C.S. § 723(a).; Pa. Constitution, Article 9, § 5.

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On March 10, 2016, the Commonwealth Court of Pennsylvania (Pellegrini, J.)

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entered the following order under Docket No. 77 M.D. 2016:

AND NOW, this 10th day of March, 2016, the petition to set aside the
nomination of Ted Cruz as a Candidate for the Republican Nomination for

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President of the United States is denied. The Secretary of the
Commonwealth is directed to certify the name of Ted Cruz to the proper

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officials for inclusion on the ballot of the Republican Primary to be held on
April 26, 2016. Each party is to bear its own costs.

DAN PELLEGRINI, Senior Judge

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s/ Dan Pellegrini

STATEMENT OF SCOPE AND STANDARD OF REVIEW

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Where, as here, an appeal presents a question of law, the scope of review is

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plenary and the standard of review is de novo. Commonwealth v. Stotelmyer, 110
A.3d 146, 149 (2015); Lebanon Val. Farmers Bank v. Commonwealth, 623 Pa.
455, 462 (2013).

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QUESTIONS PRESENTED
I.

Does the political question doctrine apply where the question of

whether a candidate for President of the United States meets the qualifications for

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that office set forth in Article II of the Constitution (a) has not been committed to
another branch of government and (b) presents a question of interpretation for
which there are ascertainable judicial standards?

II.

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Suggested Answer: No. Commonwealth Court answered No.

Does Appellee Cruz’s birth outside the boundaries of the United

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States disqualify him from eligibility for the Presidency of the United States
because he is not a natural born citizen as required under Article II of the U.S.

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Constitution?

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Suggested Answer: Yes. Commonwealth Court answered No.

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STATEMENT OF THE CASE

The parties stipulated in the court below that Appellee Cruz was born on

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December 22, 1970, in Calgary, Alberta, Canada. It was further stipulated that his
mother, Eleanor Darragh, was born on November 23, 1934, in Delaware and that

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she is and has always has been a United States citizen. The parties also stipulated
in the court below that at the time of Appellee’s birth his mother had been

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physically present in the United States for more than ten years of her life, including
for at least five years after she reached the age of fourteen, and that Cruz was a
citizen from the moment of his birth.

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Applying the rules set forth in Baker v. Carr, 369 U.S. 186, 217 (1962), the
court below held that the question of eligibility under Article II of the Constitution
is justiciable because it is not textually committed to another branch of govern-

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ment, because the Constitution is judicially declarable law, and because the
eligibility question can be resolved using judicially discoverable and manageable

standards. The lower court also held that because U.S. naturalization law deems

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Cruz to be a citizen at birth by reason of his mother’s citizenship, he met the

natural born citizen requirement of Article II of the Constitution even though he

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was not born in the United States.

SUMMARY OF ARGUMENT

Under established U.S. Supreme Court standards, the political question

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doctrine does not apply. Not only is there no textual commitment of the

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Presidential eligibility issue to a co-ordinate branch; the issue of compliance with
Constitutional requirements turns on ascertainable and long-standing rules of law

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pertaining to citizenship. Furthermore, the common law meaning of the term
“natural born citizen” used by the Framers in Article II of the Constitution is well-

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known and unambiguous under decades of Supreme Court jurisprudence; it
denotes citizenship according to place of birth. An individual born abroad may

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gain citizenship under a statute passed by Congress pursuant to its Article I,

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Section 8 power to issue “an uniform Rule of Naturalization”. However, because
not born within the boundaries of the United States, such a person is not a natural
born citizen. This is established by Supreme Court authority and common law
precepts which override the commentary by a small number of advocate authors.
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ARGUMENT
I.
THE POLITICAL QUESTION DOCTRINE DOES NOT APPLY.

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Cruz contends that the interpretation of Article II, § 1, cl.5 (hereinafter the
“Qualifications Clause”) is a political question committed “exclusively to the

Electoral College and U.S. Congress.”1 However, the Supreme Court’s seminal

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decision in Baker v. Carr, 369 U.S. 186 (1962), and this Court’s decisions that

have applied Baker v. Carr, make it plain that the judiciary has the responsibility of

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interpreting and applying the Qualifications Clause. As set forth in Baker v. Carr,
it is the role of the judiciary to adjudicate questions arising under the Constitution
unless there is:

“a textually demonstrable constitutional commitment of the issue to a
coordinate political department;” or

(ii)

“a lack of judicially discoverable and manageable standards for
resolving it”; or

(iii)

“the impossibility of deciding without an initial policy determination
of a kind clearly for nonjudicial discretion;” or

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(i)

“the impossibility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government;” or

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(iv)

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(v)

(vi)

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“an unusual need for unquestioning adherence to a political decision
already made;” or

“the potentiality of embarrassment from multifarious pronouncements
by various departments on one question”.

Brief for Cruz in Commonwealth Court, at 7.
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369 U.S. 217.2 This Court adopted the Baker standards in Sweeney v. Tucker, 473
Pa. 493, 510 (1977). In Hospital & Healthsystem Ass'n of Pa. v. Commonwealth,
621 Pa. 260 (2013), this Court again applied the Baker v. Carr standards, and

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added noted that “the need for courts to fulfill their role of enforcing constitutional
limitations is particularly acute where the interests or entitlements of individual
citizens are at stake.” 621 Pa. at 276 (citation omitted).

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In Part I-A we show that there is no provision of the Constitution – neither
Article II, nor the Twelfth Amendment, nor the Twentieth Amendment, nor any

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other provision – that even impliedly bars the judiciary from deciding whether an
individual meets the eligibility requirements of Article II, § 1, cl.5. In Part I-B we

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show that none of the other five Baker v. Carr standards would make this case nonjusticiable.

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A. The Federal Constitution Does Not Reserve the Issue of Presidential
Eligibility to the Presidential Electors or the U.S. Congress.

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As the court below observed, when the Framers of the Constitution wanted
to assign to Congress the responsibility for judging qualifications for office, they

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explicitly said so. In Article I, § 5, cl.1, the Constitution gave each House of
Congress the authority to judge the qualifications of its members. However, there

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is nothing in the text of the Constitution that gives Congress or the Presidential

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electors the power to determine the qualifications of a candidate for President
under Article II, § 1, cl.5. In fact, the term “Electoral College” is not used
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The analysis of the political question doctrine in Baker v. Carr remains controlling in the
federal courts today. See, e.g., In re KBR, Inc., Burn Pit Litig., 744 F3d 326, 334 (4th Cir. 2014),
cert denied, 135 S. Ct. 1153 (2015) (citing six-factor test in Baker v. Carr).
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anywhere in the Constitution.
Rather, Article II directs the states “to appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors, equal to the whole number of

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Senators and Representative to which the State may be entitled . . . .” The electors
are directed to meet in their respective states, vote by ballot for two persons, and

transmit a list of their votes to the President of the Senate. Thus neither the states

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nor the electors are called upon to make a determination of eligibility under the

Qualifications Clause when they vote in their respective states. The President of

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the Senate is directed to count the electors’ votes in the presence of the members of
the Senate and the House. U.S. Const., Article II, § 1, cl.3, as amended by
Amendment XII (1804). The Constitution does not give the assembled members

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of Congress power to do anything other than count the electoral votes (and, in the

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event of a tie, choose the President and Vice-President).3
The limitations on the procedures to be followed in counting the electors’

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votes affirmatively demonstrate that the members of the House and Senate have no
power to determine Presidential eligibility. First, since the Presidential electors

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meet only in their respective states, there is no mechanism whatsoever for them to
hold meet for the purpose of evaluating and voting on a candidate’s qualifications.

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Second, the Electoral Count Act of 1887 (amended in 1948 and codified at 3

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It has been observed that 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). In fact, the
only power given to Congress in Article II is the power to choose the time at which the electors
shall be chosen and “the day on which they shall give their votes”.
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U.S.C. § 1 et seq.,)4 provides that a state’s appointment of its electors “shall be
conclusive and shall govern in the counting of electoral votes as provided in the
Constitution . . . .” as long as the state has enacted a procedure for making a final

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determination of any controversy about its electors. 3 U.S.C. § 5. This removes
any power in the electoral vote counters to reject electors who have voted for an
ineligible candidate.

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In addition, under the Electoral Count Act the sole function of the Houses of
Congress is to resolve disputes about which slate of electors from a state shall be

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counted if there is a dispute as to which slate was properly chosen – but only if a
State has not already conclusively resolved the issue. 3 U.S.C. § 15. Resolving
such disputes is the sole function of the Members of Congress. There is not a word

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in the Electoral Count Act that authorizes the Houses of Congress to make a

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determination as to a candidate’s compliance with the Qualifications Clause.
Moreover, since the Electoral Count Act expressly limits objections by

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members of the House and Senate to the matter of whether a state’s slate of
electors has been regularly chosen and certified, there is no room for objections to

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candidate eligibility. As long as only one slate of electors has been certified by a
State’s governor and the state’s electoral vote has been regularly given, objections

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to counting their electoral votes may not be entertained at all. 3 U.S.C. § 15. This

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is the very opposite of an assessment of candidate eligibility by all electors.
Critically, the electors in many states are bound by state law to vote for the

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The Electoral Count Act was enacted after the U.S. Congress was paralyzed in its effort to
resolve the Presidential electors’ tie in the 1876 Hayes–Tilden Presidential election.
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candidate securing the most votes in their state (the power to enact such laws is a
prerogative of the states given the role in appointment of electors secured to them
by Article II). A tabulation of these state statutes prepared by the U.S. National

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Archives and Records Administration identifies over twenty states in which, by
law, electors may not change their votes away from the specific candidate for

whom they were selected, in some instances on pain of criminal prosecution.5

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These twenty states are listed in an Addendum to this brief. This significant

number of electors would never be able to reject a constitutionally unqualified

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candidate and perform the function of determining eligibility. Thus the idea that
the “Electoral College” is empowered to determine compliance with the
Qualifications Clause is a fiction.

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Cruz has also claimed that the Twelfth and Twentieth Amendments bar

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federal and state courts from deciding an individual’s eligibility for the office of
President of the United States. However, there is not one word in the Twelfth or

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Twentieth Amendments that displaces, or even seeks to displace, the role of the
judiciary in interpreting the Qualifications Clause. The Twelfth Amendment was

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ratified in 1804 only for the purpose of changing the method of voting for
President and Vice-President in Article II because of the flaw that the Presidential

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Election of 1800 revealed in the original Constitution. Since the Constitution as

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originally written did not require the electors to cast separate ballots for President
and Vice President, it was possible for a party’s candidates for President and VicePresident to receive an equal number of electoral votes, resulting in an intra-party
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http://www.archives.gov/federal-register/electoral-college/laws.html.
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tie. In 1800, when Thomas Jefferson and Aaron Burr ran together as a ticket for
President and Vice President, they each ended up receiving an equal number of
votes for President on the lists of electoral votes. The result of the tie vote was that

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the election was put into the hands of the outgoing House of Representatives and
was not decided until the 36th ballot.

To avoid a repetition of that situation, the Twelfth Amendment amended

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Article I, § 1, cl.3 to provide that Presidential electors had to cast ballots separately
for President and Vice President. Nothing in the Twelfth Amendment has anything

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to do with assessing candidate qualifications. It contains nothing that would
preclude the judiciary from determining whether individuals are qualified
candidates for the office of President or Vice-President.6

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Further, and contrary to Cruz’s argument in the lower court, the actual scope

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of the Twentieth Amendment (ratified in 1933) is quite limited; it has no application to the constitutional issue in this case, as the Ninth Circuit Court of Appeals

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held in Lindsay v. Bowen, 750 F.3d 1061 (9th Cir. 2014). In Lindsey a 27-year-old
plaintiff alleged that California’s decision not to place plaintiff on the state’s 2012

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Presidential primary ballot violated the First Amendment, the Equal Protection
Clause, and the Twentieth Amendment. In affirming the lower court’s dismissal of

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the plaintiff’s action, the Ninth Circuit Court of Appeals (speaking through Chief

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Judge Kozinski) explained the purpose of the Twentieth Amendment:
“[Plaintiff] argues that the [Twentieth] Amendment prohibits states

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Notably, the drafters of the Twelfth Amendment remedied the original Article II’s failure to
specify eligibility requirements for the Vice President by carrying forward the “natural born
citizen” requirement unchanged.
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Lindsay, 750 F.3d at 1065 (emphasis in original).

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from determining the qualifications of presidential candidates . . . .
[N]othing in the Twentieth Amendment states or implies that
Congress has the exclusive authority to pass on the eligibility of
candidates for president. The amendment merely grants Congress the
authority to determine how to proceed if neither the president elect nor
the vice president elect is qualified to hold office, a problem for which
there was previously no express solution. See 75 Cong. Rec. 3931
(1932) (statement of Rep. Cable). Candidates may, of course, become
ineligible to serve after they are elected (but before they start their
service) due to illness or other misfortune. Or, a previously unknown
ineligibility may be discerned after the election. The Twentieth
Amendment addresses such contingencies. Nothing in its text or
history suggests that it precludes state authorities from excluding a
candidate with a known ineligibility from the presidential ballot.”

In sum, the Constitution does not have any provision that would bar this

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Court from ruling on the Constitutional issue of whether Cruz meets the
qualifications laid down in Art. II, § 1, cl.5.

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B. None of the Other Baker v. Carr Standards Even
Suggests That There Is a Political Question in This Case.

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None of the other five Baker v. Carr standards would transform the issues in
this case into a non-justiciable political question:
Adjudication of the citizenship issue under Article II will not be

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impaired by a lack of “judicially discoverable and manageable standards”. The
legal standards necessary for resolving the citizenship issue are set forth in haec

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verba in Article II, § 1, cl.5 of the Constitution. Further, there is a significant body
of case law, such as United States v. Wong Kim Ark, 169 U.S. 649 (1898), Luria v.
United States, 231 U.S. 9 (1913), and Rogers v. Bellei, 401 U.S. 815 (1971), that
addresses the legal issue of natural born vs. naturalized citizenship. See Part II,
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below. Indeed, citizenship issues are regularly resolved by the courts, as shown
not only by these three decisions but also by the many prior cases that they cite
concerning citizenship issues.
This case hardly involves “an initial policy determination of a kind

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clearly for nonjudicial discretion.” No policy determination at all is involved in

determining a candidate’s compliance with the express requirements of Article II, §

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1, cl.5.

There is no issue of disrespect for another branch of government.

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That category refers to internal operating issues of the other branches. Baker v.
Carr, 369 U.S. at 215. Since no coordinate branch of government has been charged

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with the duty of determining whether a candidate meets the requirements of Article

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II, § 1, cl.5, it follows that this Court would not express any disrespect for any
other branch of government by adjudicating this case.
It is quite apparent that there is no “unusual need for unquestioning

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adherence to a political decision already made”. No political decision at all has

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been made. Moreover, the definition of natural born citizenship is a legal question,
not a political one.

There is no potential for “embarrassment from multifarious

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pronouncements by various departments on one question”. Neither the Executive
branch nor the Congress can decide the natural born citizenship issue since it is an
entirely legal question. It remains “the province and duty of the judicial department
to say what the law is”. In re KBR, Inc., Burn Pit Litig., supra, 744 F.3d at 334,
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citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803).
Furthermore, Baker v. Carr makes it clear that this exception pertains to the
administration of the U.S. government’s relationship with Indian tribes. 369 U.S.

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at 215-17.

Moreover, as to “the respect due coordinate branches of government” and as
to “the potential for varying pronouncements by various departments on one

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question”, the court in Kerr v. Hickenlooper, 744 F.3d 1156 (10th Cir. 2014),
vacated on other grounds, 135 S.Ct. 2927 (June 30, 2015), after analyzing

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Supreme Court cases subsequent to Baker v. Carr, held that “[t]hese factors are
best understood as promoting separation-of-powers principles in cases featuring

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prior action on an issue by a coordinate branch.” 744 F.3d at 1180 (citation

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omitted). Here there has been no prior action concerning the Qualifications Clause
by the Congress or the Executive.

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Unfortunately the “birther” movement in 2008 and subsequent years
spawned a plethora of frivolous cases litigated with no focus by the plaintiffs on

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procedural or justiciability matters. The plaintiffs in those cases made outrageous
claims that the birth certificates and newspapers evidencing President Obama’s

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birth in the United States were fabricated by unidentified conspirators, inter alia.

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Some of the decisions in those cases, after finding the plaintiffs’ claims to be
frivolous, also added dicta to the effect that the Qualifications Clause issue was a
political question or was for the so-called “Electoral College” to determine.
However, whatever statements may have been made in those cases about the
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political question doctrine or the “Electoral College” were not correct as they did
not include an analysis of the Constitutional text or of the actual functioning of the
electors. Although Appellee Cruz is fond of citing this large group of cases, the

apply the Baker v. Carr standards.
*

*

*

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Commonwealth Court was correct in disregarding them because they failed to

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The fact that a justiciable case involves political matters, or that it may have
politically significant ramifications, does not create a “political question” bar. As

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the Supreme Court held in U.S. Dept. of Commerce v. Montana, 503 U.S. 442,
456-59 (1992), a case involving decennial changes to Congressional district lines:

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The case before us today is “political” in the same sense
that Baker v. Carr was a “political case.” 369 U.S., at
217, 82 S.Ct., at 710. It raises an issue of great
importance to the political branches. The issue has
motivated partisan and sectional debate during important
portions of our history. Nevertheless, the reasons that
supported the justiciability of challenges to state
legislative districts, as in Baker v. Carr, as well as state
districting decisions relating to the election of Members
of Congress, see, e.g., Wesberry v. Sanders, 376 U.S. 1,
84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Karcher v.
Daggett, 462 U.S. 725, 103 S.Ct. 2653, 77 L.Ed.2d 133
(1983), apply with equal force to the issues presented by
this litigation. The controversy between Montana and the
Government turns on the proper interpretation of the
relevant constitutional provisions. As our previous
rejection of the political question doctrine in this context
should make clear, the interpretation of the
apportionment provisions of the Constitution is well
within the competence of the Judiciary. See Davis v.
Bandemer, 478 U.S. 109, 123, 106 S.Ct. 2797, 2805, 92
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L.Ed.2d 85 (1986); Baker v. Carr, 369 U.S., at 234–237,
82 S.Ct., at 719–721; cf. Gilligan v. Morgan, 413 U.S., at
11, 93 S.Ct., at 2446. The political question doctrine
presents no bar to our reaching the merits of this dispute
and deciding whether the District Court correctly
construed the constitutional provisions at issue. 503 U.S.
at 459.

Finally, in a “parade of horribles” effort to avoid adjudication of his

citizenship qualifications, Cruz suggests that there could be inconsistent state court

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rulings on the Qualifications Clause. The short answer to this is that the U.S.

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Supreme Court can resolve any conflicting state rulings. The Supreme Court is
entirely capable of acting with necessary speed in elections matters, as in Bush v.

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Gore, 531 U.S. 98 (2000).7

Moreover, far less disruption will occur if this matter is settled at the

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primary stage rather than after the general election. The alternative of awaiting

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post-election proceedings of the Presidential electors to determine whether a
candidate is constitutionally qualified would be shot through with severe practical

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deficiencies, even if the fifty states’ electors, meeting separately in their respective
states, had the necessary political independence and grounding in constitutional

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law. It is not realistic to posit that after the country has gone through the entire
general election process and selected a President-Elect, there should at that point

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suddenly be a determination by the electors or by Congress of whether the

7

In U.S. Dept. of Commerce v. Montana, supra, the Supreme Court granted expedited
briefing “in view of the importance of the issue and its significance in this year’s congressional
and Presidential elections.” Id., 503 U.S. at 445.
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President-Elect was qualified to be President. Notably, the court in Donohue v. Bd.
of Elections of NY, 435 F.Supp. 957, 967 (E.D.N.Y 1976), while concluding that it
had the power to order a new Presidential election in New York, rejected a post-

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general election challenge to the validity of the 1976 New York Presidential
election in part because it would be so disruptive.

Thus, it is not realistic to think that the Electoral College, instead of the

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courts, should be the place that determines eligibility for the office of President.
Appellee’s contention that this fundamental constitutional issue should not be

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decided until after the general election takes place is a thinly-veiled effort to insure
that the issue is never decided, thereby rendering the Qualifications Clause a dead

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letter.

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In sum, a legally ineligible candidate cannot be allowed to participate in a
Presidential election without doing grave violence to the Constitutional

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Qualifications Clause. It cannot be imagined that the authors of the Constitution
intended to leave this critical issue to be determined only after a national election

II.

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has already been concluded.

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RESPONDENT CRUZ IS INELIGIBLE FOR PRESIDENT BECAUSE
HE IS NOT A “NATURAL BORN CITIZEN” OF THE UNITED STATES.
In American law the matter of being a natural born citizen is not complex.

As the U.S. Supreme Court has repeatedly held, a natural born citizen is an
individual who was born within the boundaries of the United States. Because the
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law of the soil (lex soli), and not the citizenship of parents (lex sanguinis), is the
basis for natural born citizenship, individuals born outside the United States are not
natural born citizens even if a naturalization statute passed by Congress gives them

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automatic citizenship at birth.

The following basic premises cement the conclusion that a person born
outside the United States, regardless of the citizenship of his parents, is not a

1.

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natural born citizen:

In United States law the “ancient rule of citizenship” is lex soli or “the

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law of the soil”; only individuals whose “eyes first saw the light on U.S. soil” are
natural born citizens (with an ancient exception for the foreign-born children of

As the Supreme Court has held, United States citizens are either

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2.

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U.S. citizen-diplomats serving abroad).

natural born citizens who are born within the boundaries of the United States (or

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are born abroad to U.S. citizen-diplomats), or individuals born abroad who become
citizens only by operation of a naturalization statute passed by Congress.
The Constitution only gives Congress the power to adopt “a uniform

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3.

rule of naturalization”; nothing in the Constitution gives Congress the unilateral

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power to amend the Constitutional term of natural born citizen.
While the English common law in 1787 is a basis for understanding

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4.

the common law terms used in the Constitution, the Framers of the U.S.
Constitution did not incorporate any English statutes into their understanding of
the terms used in the Constitution. Such English statutes do not modify the
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meaning of “natural born citizen” in the United States. Indeed, the Supreme Court
has repeatedly held that American common law does not incorporate statutory law.
Early on the Supreme Court, speaking through Justice Joseph Story, flatly rejected

5.

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the notion that American common law included any English statutes.

The Framers’ intent in 1787 cannot be discerned from the 1790

Naturalization Act for multiple reasons: The text of the 1790 Act evidences that the

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First Congress knew that the common law definition of natural born citizen did not
cover foreign-born children of U.S. citizens (other than children born abroad to

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U.S. citizen-diplomats). The 1790 Act was repealed and replaced in 1795, and the
replacement legislation – which was drafted and shepherded to passage by none

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other than James Madison, a principal author of the Qualifications Clause –

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removed the very text in the 1790 Act which Appellee Cruz cites. And, the First
Congress was not inundated with Framers, contrary to popular myth.

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As a final introductory point: having appropriately based its political
question ruling on solid analysis of actual case-law (Baker v. Carr and its

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progeny), the lower court veered into reversible error when it based its
Qualifications Clause decision largely, if not entirely, on three essays written by

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non-judges. Unfortunately, a “false echo chamber” has been created by certain

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commentators and courts who have, without independently examining controlling
case-law and original-source materials, reflexively relied upon inaccurate,
incomplete and misleading statements contained in think-pieces prepared by a
handful of contemporary commentators. As discussed below, Supreme Court
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decisions, the common law at the time of the Framing, and the actual make-up and
proceedings of the First and Third Congresses should provide the basis for a ruling
on the merits, not the ruminations set forth in the three essays relied upon by the

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lower court.

A. The Constitution Distinguishes Between “Citizen” and
“Natural Born Citizen”.

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The Constitution distinguishes between being a “natural born citizen” and

being a “citizen” of the United States. A member of the U.S. Congress must be a

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“Citizen” of the United States, whereas the President and Vice President each must
be a “natural born Citizen”. Compare U.S. Constitution, Article I, § 1, cls.2 & 3

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with Article II, §1, cl.5 & Amendment XII. Moreover, the relevant provision of
Article II itself (§ 1, cl.5) distinguishes between “natural born citizens” and those

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who were citizens at the time of the adoption of the Constitution:

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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.

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This distinction necessarily means that a citizen is legally different from a natural

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born citizen.8

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The first draft of the Constitution did not contain the “natural born” citizenship requirement
for the President. However, on July 25, 1787, John Jay sent George Washington (the president
of the Constitutional Convention) a letter suggesting that the Presidency be limited to natural
born citizens:
(continued...)
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Natural born citizenship is, quite simply, citizenship which arises by reason
of the place of birth. It arises of its own natural accord, that is, birth, without any
intervention on the part of the government, such as by an Act of Congress. The

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only other form of citizenship arises solely by intervention of the government

through an Act of Congress and is known as naturalized citizenship. No amount of
semantic gamesmanship by Appellee Cruz or a few modern-day commentators can

fully accepted this distinction, as outlined below.

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convert a naturalized citizen into a natural born citizen. The Supreme Court has

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B. “Natural Born Citizen” Is A Common Law Term Which Must Be Interpreted
In Accordance With Its Meaning At The Time Of The Framing. The
Seminal Case of Wong Kim Ark Makes Clear That The American Common
Law Rule Of Jus Soli Did Not Confer Citizenship On Foreign-Born Children
of U.S. Parents (With An Ancient Exception for Diplomats’ Children).

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Appellee Cruz asserted in the lower court that “[a]though the Constitution
does not define the phrase ‘natural born citizen’, its meaning is not difficult to

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determine.”9 Tellingly, Cruz turned first for guidance not to case-law, but to

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(...continued)
Permit me to hint, whether it would not be wise & seasonable to provide a . . . strong
check to the admission of Foreigners into the administration of our national Government;
and to declare 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.

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On September 2, 1787, Washington thanked Jay “for the hints contained in [his] letter,” and two
days later the Committee of Eleven reported a revised Presidential eligibility provision which
included the requirement of natural born citizenship. On September 7, 1787, the Convention
approved the provision without objection and only stylistic changes were made thereafter. Mary
Brigid McManamon (“McManamon”), The Natural Born Citizen Clause as Originally
Understood, 64 Cath. Univ. Law Review 317 (2015), at pp. 328-9.
9

Brief for Cruz in Commonwealth Court at 14.
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modern-day colloquialisms as well as modern-day dictionaries and modern-day
commentators. However, it is axiomatic that terms in the U.S. Constitution that
have a common law history are to be interpreted in accordance with their common

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law meaning at the time the Constitution was written and 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

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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

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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”).

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In 1787, at common law, the term “natural born citizen” was defined by the

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geographic place of a person’s birth [the “jus soli” (law of the soil)], with an
ancient exception for the foreign-born children of diplomats serving abroad.10

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In 1789, Congressman James Madison, known for his central role in the drafting of

10

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the Constitution, had this to say in a speech on the House floor:

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See McManamon, The Natural Born Citizen Clause as Originally Understood, supra, at
pp. 328-31.

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The desirability of limiting the Presidency to persons born within the territorial limits of
the United States was discussed during the ratification debates held in the various States. For
example, Tench Coxe, a member of the Continental Congress and the Administration of George
Washington, argued in an article published in support of ratification, in the Independent
Gazatteer (Philadelphia) on September 26, 1787, that: “In all royal governments an helpless
infant or an inexperienced youth, may wear the crown. Our president must be matured by the
experience of years, and being born among us, his character at thirty-five must be fully
understood.” Bernard Bailyn, The Debate on the Constitution (Part One), The Library of
America (1993), at p. 23 (emphasis supplied).
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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 . . . .”11

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The Supreme Court has repeatedly stressed that U.S. citizenship arises either
by virtue of being born within the boundaries of the United States, or by virtue of a
naturalization statute enacted by Congress; the two routes to citizenship are

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mutually exclusive and there is no hereditary citizenship:

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[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.

328.

McManamon, The Natural Born Citizen Clause as Originally Understood, supra, at p.

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11

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United States v. Wong Kim Ark, 169 U.S. at 665 (emphasis supplied; internal

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In his 1803 edition of William Blackstone’s Commentaries on the Laws of England, St.
George Tucker, a respected early federal judge, noted that naturalized citizens have the same
rights as natural born ones except “they are forever incapable of being chosen to the office of
president of the United States…” Blackstone, Commentaries, Vol. II, Ch. 10, fn. n (St. George
Tucker edition of 1803), http://www.constitution.org/tb/tb2.htm
In an 1829 edition of his treatise on the Constitution, William Rawle, who had been a
member of the Pennsylvania Constitutional Assembly, stated that geographic location of birth
defined the meaning of natural born citizen: “. . . no person is eligible to the office of president
unless he is a natural born citizen, the principle that the place of birth creates the relative quality
is established as to us.” McManamon, The Natural Born Citizen Clause as Originally
Understood, supra, at p. 331.
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quotations and citations omitted). See also Miller v. Albright, 523 U.S. 420, 453
(1998) (“The Constitution “contemplates two sources of citizenship, and two only:
birth and naturalization”) (Scalia, J., concurring) (citing Wong Kim Ark).

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Moreover, anyone “born outside the territory of the United States, is an alien
as far as the Constitution is concerned, and can only become a citizen by being

naturalized, either by treaty, as in the case of the annexation of foreign territory; or

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by authority of Congress.” Id. (citation and internal quotation omitted). In United
States v. Schwimmer, 279 U.S. 644, 649 (1929), the Court held that “aliens can

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acquire such equality [to native born citizens] only by naturalization according to
the uniform rules prescribed by the Congress. They have no natural right to

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become citizens, but only that which is by statute conferred upon them.” Appellee

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Cruz falls in precisely this category: when born in Canada he was an alien, and
became a citizen only by act of Congress. In fact, in portions of the Immigration

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and Nationality Act “automatic citizenship” is specifically classified as a form of
naturalization. See 18 U.S.C. § 1431.

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Importantly, the Supreme Court recognized in Wong Kim Ark that so far as

the common law is concerned, the rule of jus soli did not include conferring

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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,
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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 wholly upon statutory enactments.’

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Wong Kim Ark, supra, 169 U.S. at 670 (emphasis supplied).

The Court in Wong Kim Ark summed up its conclusions as follows:

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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, . . . .

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169 U.S. at 693 (emphasis supplied).

As to whether, at common law, United States citizenship could arise merely

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by virtue of being born to a mother or father who was a United States citizen, the
Court had this to say: “There is not, and never was, any such common-law

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principle.” Wong Kim Ark, 169 U.S. at 670 (citations omitted).

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The Supreme Court’s statements about the law of citizenship are statements

about an accepted common law rule of citizenship which predates the Fourteenth
Amendment and, in fact, is “ancient” in nature. Id., 169 U.S. at 667. These

statements must be taken as the definitive statement by the Supreme Court on how
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natural born citizenship is acquired and how it differs from citizenship by statute.
It is not acquired by birth abroad when a foreign-born child of a U.S. citizen
obtains citizenship under a naturalization statute. As the Supreme Court noted in

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Luria v. United States, 231 U.S. 9, 22 (1913) (citations omitted), in a unanimous
opinion from a bench that included Justice Oliver Wendell Holmes and Justice

Charles Evan Hughes: “Naturalized citizens stand on an equal footing with the

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native citizen in all respects, save that of eligibility to the Presidency.” Accord,
e.g., United States v. Schwimmer, supra.

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Moreover, as the Supreme Court noted in Wong Kim Ark:

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It thus clearly appears that, during the half century
intervening between 1802 and 1855, there was no
legislation whatever for the citizenship of children born
abroad, during that period, of American parents who had
not become citizens of the United States before the act of
1802….

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169 U.S. at 674.12 In Rogers v. Bellei, supra, the Supreme Court held that a
naturalized citizen could lose his U.S. citizenship if he did not comply with

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statutory conditions. One must therefore ask: If the citizenship which arises by
statute is really natural born citizenship at the constitutional level, then how is it

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that Congress could deny such status for decades by not providing for such status

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by statute, or by providing it only when subject to certain statutory limitations, as

12

Professor McManamon has also noted that during several decades in the nineteenth
century children of Americans born abroad were not given automatic naturalization. See
https://www.washingtonpost.com/opinions/ted-cruz-is-not-eligible-to-bepresident/2016/01/12/1484a7d0-b7af-11e5-99f3-184bc379b12d_story.html.
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in the Bellei case? Or, conversely, if natural born citizenship 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 questions

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answer themselves.

In short, the phrase “natural born Citizen” means something more than

simply “born a citizen” or “citizen at birth. It is instead a term of art in common

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law that denotes birth within national boundaries. If such were not the case, then
why would not the Constitution have been worded accordingly? Why would not

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the Constitution say: “No person except a person who has been a citizen since birth
shall be eligible . . .”? The Constitution does not say this and does not have this

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concept (which is the one advocated by Cruz). Instead, it expressly requires that

the United States.

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the President be a natural born citizen, that is, one born within the boundaries of

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As the Supreme Court recognized in Wong Kim Ark, 169 U.S. at 657-58, the
common law rule of jus soli contains an exception for children born overseas to

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citizens serving as diplomatic envoys of their sovereign. This is an ancient
principle of the common law. See McManamon, The Natural Born Citizen Clause

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as Originally Understood, supra, at p. 331. Parroting a false argument made by

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Paul Clement and Neal Kaytal in their four-page commentary13, Cruz contended
below that the Framers could not have understood “natural born citizen” to exclude

13

Paul Clement and Neal Katyal (“Clement and Kaytal”), On the Meaning of “Natural Born
Citizen”, 128 Harvard Law Review Forum, 161, 163 (2015).
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foreign-born children of U.S. citizens because John Jay proposed the requirement
to George Washington, the President of the Constitutional Convention (see n.8
above). So, according to this bizarre theory, John Jay had fathered three children

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while serving abroad as a U.S. diplomat and thus could not possibly have intended

to exclude his children from the Presidency. However, John Jay was not a delegate
to the Constitutional Convention (see n. 18 below) and thus not a Framer.

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Accordingly, any definition of “natural born” that someone might imagine Jay had
in mind is irrelevant. Moreover, there is absolutely no basis for rank speculation

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that John Jay, a prominent lawyer who became the first Chief Justice of the United
States, was unaware of the jus soli rule’s ancient exception for the foreign-born

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children of diplomats such as himself serving abroad.

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C. The American Common Law Definition of “Natural Born Citizen”
in 1787-88 Did Not Encompass the British Parliament’s Naturalization
Statutes.

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Finding the common-law rule of jus soli inconvenient for their purpose,
Appellee Cruz and some modern-day commentators make the patently inaccurate

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argument that the common law was understood in America in 1787 to include Acts
of the British Parliament, including British naturalization statutes. This theory is

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historically very dubious given that the United States, at the time of the Framing,

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had only recently fought a long and bloody revolution in large part because of the
oppressive Acts of the British Parliament. Moreover, this theory is rebutted by not

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only the British statute which Cruz (and commentators Clement and Kaytal14)
failed to quote accurately but also by Supreme Court decisions.
In the lower court Cruz misleadingly cited the British Nationality Act of

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1730, 4 Geo. 2, c. 21, for the proposition that “British law …in force at the time of
the Founding” provided that foreign-born children of a Crown Subject were

“natural-born Subjects” (emphasis supplied by Cruz).15 Cruz egregiously omitted

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key words when allegedly quoting from the British 1730 Act. In fact, the British

1730 Act (whose preamble stated it was being enacted “to explain” a Clause in an

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earlier Act “For naturalizing Foreign Protestants”) provided in relevant part that
foreign-born children of fathers who were “natural-born Subjects of the Crown” at

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the time of the birth of such children

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shall and may, by virtue of said recited Clause in the said
Act [of Parliament] of the seventh Year of the Reign of
her said late Majesty [Queen Anne], and of this present
Act, be adjudged and taken to be, and all such Children
are hereby declared to be natural-born Subjects of the
Crown of Great Britain, to all Intents, Constructions and
Purposes whatsoever. (emphasis supplied).16

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That an affirmative act by Parliament was necessary to confer status as a “natural
born” subject demonstrates that such a designation was known to be in derogation

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of the common law. Simply put, the very existence of British statutes “adjudging”

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and “declaring” such children to have natural born status belies the contention that
14

Clement and Kaytal, On the Meaning of “Natural Born Citizen”, supra, at p. 162.

15

Brief for Cruz in Commonwealth Court at 18.

16

A copy of the British 1730 Act may be found at: http://www.uniset.ca/naty/BNA1730.htm.
27

Copy provided courtesy of: ProtectOurLiberty.org
the common law was in accord with those statutes.
Furthermore, the Supreme Court has repeatedly articulated its understanding
that American common law exists as a body of law independent from statutory

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law. A notable case is Levy’s Lessee v. McCartee, 31 U.S. 102, 110-11 (1832).

Therein, litigants argued that certain British statutes continued “in full vigour and
operation” as part of the common law of New York even though the New York

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Legislature had, pursuant to explicit authorization in the New York Constitution of
1777, passed a statute providing that “none of the statutes of England or Great

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Britain shall be considered as laws of this state”. Speaking through Justice Joseph
Story, the Court flatly rejected the argument that British statutes antecedent to the

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American Revolution were, separately, part of the common law: “The common law

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is constantly and generally used in contradistinction to statute law…. It is too plain
for argument, that the common law is here spoken of in its appropriate sense, as the

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unwritten law of the land, independent of statutable enactments.” For further
supporting authority, see Western Union Tel. Co. v. Call Pub. Co., 181 U.S. 92,

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101-02 (1901) (agreeing with Chancellor Kent that the common law’s principles,
usages and rules “‘do not rest for their authority upon any express or positive

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declaration of the will of the legislature’”); State of Kansas v. State of Colorado,

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206 U.S. 46, 96 (1907) (“As [the common law] does not rest on any statute or other
written declaration of the sovereign,….”).
Accordingly, British naturalization statutes antecedent to the Constitutional

Convention are irrelevant for purposes of construing the Constitution. Equally
28

Copy provided courtesy of: ProtectOurLiberty.org
irrelevant is the U.S. naturalization statute enacted three years after the
Constitution was written, for the reasons set forth below.

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D. The Framers’ Intent in 1787 Cannot Be Ascertained From a 1790 Statute.
Moreover, With Framer James Madison’s Active Leadership, the 1790
Statute Was Repealed in 1795 and Replaced By a Statute Which Deleted the
Very Text That Cruz Cited in the 1790 Statute.
The 1790 Naturalization Act (1 Stat. 103) (the “1790 Act”) included a

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provision that foreign-born children of U.S. citizens “shall be considered as natural
born citizens” (emphasis supplied). Although not directly positing that the

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Congress can authoritatively interpret, or amend, the Constitution17, Appellee Cruz
nonetheless contended in the lower court that the 1790 Act’s enactment by the First

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Congress sheds light on the Framers’ understanding of “natural born citizen”
supposedly because the First Congress included eight of the eleven members of the

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Convention committee that drafted the “natural born” requirement.

In fact,

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neither the make-up of the First Congress nor its actual proceedings support the
view that the Framers of the Constitution18 considered the term “natural born” to
17

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One of the three secondary sources upon which the lower court so heavily relied was a
“report” prepared by persons paid by Congress, i.e., the Congressional Research Service
(“CRS”). The CRS essay was issued on the eve of the 2012 Presidential election (and re-issued
on the eve of the 2016 Presidential election), when, on each occasion, a Senator was confronting
questions about his “natural born citizen” eligibility. From Marbury v. Madison, supra, onward,
it has been clear that the responsibility for issuing authoritative interpretations of the
Constitution is vested in the courts, not Congress or its helpers at the CRS.
18

According to the National Archives, 55 delegates (“Convention delegates”) attended at
least some of the sessions of the 1787 Constitutional Convention (the “Convention”), but only 39
signed the final document. A full list of Convention delegates (identifying the 16 who did not
sign) may be found at:
http://www.archives.gov/exhibits/charters/constitution_founding_fathers.html. Only 8 of the 55
(continued...)
29

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encompass foreign-born children of a U.S. citizen. When the 1790 Act was
approved by the First Congress in March 1790, only 23% of the combined
membership of the House and Senate had been Convention delegates.19 Further,

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the 1790 Act originated in the House of Representatives, where only 14% of the
Members had been Convention delegates, and the 1790 Act was drafted by a

House committee of three,20 none of whom had been a Convention delegate. The

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committee’s draft was later referred to a larger House committee of ten – and only
one of that committee [Roger Sherman, CT] had attended the Convention. See

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House Journal, Vol. 1, p. 152 (Feb. 4, 1790).

Thus, to be clear, none of the members of the Convention committee that

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drafted the “natural born” requirement21 served on the House committee that

18

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(...continued)
Convention delegates were born outside of the United States:
http://www.archives.gov/exhibits/charters/constitution_founding_fathers_overview.html.
19

20

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The 23% figure is derived by comparing the list of Convention delegates (n.18 above) with
the roster of the First Congress [http://history.house.gov/Congressional-Overview/Profiles/1st/].
When the 1790 Act was enacted in March 1790, there were 64 Representatives and 24 Senators
(Rhode Island was not represented in the Congress at that time because Rhode Island did not
ratify the Constitution until May 28, 1790).

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The committee [Thomas Hartley (PA) (chair), Thomas Tudor Tucker (SC), and Andrew
Moore (VA) was appointed on January 15, 1790. See Journal of the House of Representatives of
the United States (“House Journal”), Vol. 1, p. 141, available at: https://memory.loc.gov/cgibin/ampage?collId=llhj&fileName=001/llhj001.db&recNum=138&itemLink=r%3Fammem%2F
hlaw%3A%40field%28DOCID%2B%40lit%28hj001178%29%29%3A%230010132&linkText=
1. Due to space limitations, all other citations to the House and Senate Journals will not include
website links, but the relevant House and Senate Journals are at:
https://memory.loc.gov/ammem/amlaw/lawhome.html.
21

The Convention committee that inserted the “natural born citizen” requirement into Art. II,
(continued...)
30

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drafted the 1790 Act, and only one of them [Roger Sherman, CT] served on a
subsequent House committee that secondarily worked on the bill. The official
House Journal contains virtually no details of the substance of any committee

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work or floor debate on the terminology used in the 1790 Act. Id., pp. 152, 160,
162-3, 164 & 167. When the House passed the bill without a recorded vote on

March 4, 1790, id., p. 167, 86% of the House members (i.e., 55 out of 64) had not

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been Convention delegates.22 With no recorded vote, there is no record of whether
the small minority of Representatives who had been Convention delegates voted

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for or against the 1790 Act.23

In the Senate the House bill was reported out by a Senate committee of five,

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four of whom had attended at least some of the Convention sessions (and been

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named to the Committee of Eleven). See Journal of the Senate of the United States
(“Senate Journal”), Vol. 1, p. 119 (Mar. 9, 1790). The official Senate Journal

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contains few details on committee work or floor debate, and there was no recorded
21

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(...continued)
§1, cl.5 had these members: David Brearley (NJ), Abraham Baldwin (GA), Pierce Butler (SC),
Daniel Carroll (MD), John Dickinson (DE), Nicholas Gilman (NH), Rufus King (MA), James
Madison (VA), Gouvenour Morris (PA), Roger Sherman (CT), and Hugh Williamson (NC).
James Madison’s Notes on the Constitutional Convention of 1787 (for August 31, 1787), at:
http://avalon.law.yale.edu/18th_century/debates_831.asp.
22

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Ascertainable by comparing Convention delegates (see n.18) with the roster of the first
House (see n.19).
23

The impetus for the House bill to draft a naturalization bill was President Washington’s
first State of the Union address, wherein he said: “Various considerations also render it
expedient that the terms on which foreigners may be admitted to the rights of citizens, should he
[sic] speedily ascertained by a uniform rule of naturalization.” House Journal, Vol. 1, p. 135
(January 8, 1790) (emphasis supplied).
31

Copy provided courtesy of: ProtectOurLiberty.org
vote when the Senate passed the bill on March 19, 1790.24 Thirteen of the 24
Senators had not been Convention delegates.25 With no recorded vote, there is no
record of whether the minority of Senators who had been Convention delegates

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voted for or against the 1790 Act.

In sum, there is nothing in the official legislative history of the 1790 Act
evidencing that the minority of Representatives and Senators who had been

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Convention delegates actually voted for the 1790 Act. Nor is there any official
record to indicate that the legislators who voted for the 1790 Act had meant to

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reflect the Framers’ understanding of the common-law definition of “natural born
citizen” when voting on the 1790 Act. On the contrary, by its terms the 1790 Act

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evidences that the First Congress knew that foreign-born children of U.S. citizens

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were not “natural born citizens” under the common law. Otherwise there would
have been no need for the 1790 Act to provide that such children “shall be

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considered as natural born citizens”. (1 Stat. 103) (emphasis added).
Additionally, the same First Congress which passed the 1790 Naturalization

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Act also passed the Judiciary Act of 1789, Section 13 of which was ruled
unconstitutional in Marbury v. Madison, supra. That famous ruling undercuts any

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argument that the First Congress had special competence when it came to
24

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Senate Journal, Vol. 1, p. 122 (Fri., Mar. 19, 1790) (Senate passed House bill with an
unspecified amendment and returned to the House). The House, in an unrecorded vote,
approved the unspecified Senate amendment. House Journal, Vol. 1, pp. 178-9 (Mon., Mar. 22,
1790).
25

Ascertainable by comparing the list of Convention delegates (see n.18) with the roster of
the first Senate (see n.19).
32

Copy provided courtesy of: ProtectOurLiberty.org
interpreting the Constitution.
Further diminishing whatever significance that can be attached to the 1790
Act, it was repealed and replaced by the 1795 Naturalization Act (1 Stat. 414) (the

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“1795 Act”). Significantly, the 1795 Act removed the 1790 Act’s provision that
foreign-born children of U.S. citizens “shall be considered as natural born

citizens,” and replaced it with a provision that such children “shall be considered as

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citizens”.26 Unlike the 1790 Act, which was drafted by a committee that included
no Convention delegates, the 1795 Act was drafted by a three-man committee led

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by none other than James Madison.27 Not only did Madison play a pre-eminent
role overall in the Convention, he was also a principal member of the Convention

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committee that inserted the “natural born citizen” requirement into Art. II, §1, cl.5

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(see n.21).

Thus, the Third Congress not only removed the 1790 Act’s reference to

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“natural born”, it did so in a bill that was prepared by and shepherded through the
House by Madison, a principal author of Article II’s “natural born citizen”

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requirement.28 These facts concerning the 1790 Act’s repeal and replacement were
not mentioned in Cruz’s brief in the lower court, just as they are also ignored in the

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“false echo chamber” created by a handful of self-appointed commentators (e.g.,
26

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House Journal, Vol. 2, pp. 259, 272, 275, 277-282, 284-287, & 304; Senate Journal, Vol.
2, pp. 143-5, & 148-149.
27

House Journal, Vol. 2, p. 259.

28

As noted in n.21 above, Madison was a member of the committee that inserted the “natural
born citizen” requirement into Article II.
33

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Clement and Kaytal’s four-page “commentary” never mentions the 1795 Act).
Since 1975 at least eight Congressional proposals have been introduced to
amend Article II, §1, cl.5 to remove the “natural born citizen” requirement and

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replace it with a “citizenship” requirement.29 These recurring proposals by

Members of Congress from both parties have evidenced that there is not, as Cruz
falsely contended in the lower court, virtually unanimous agreement over the

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meaning of the “natural born citizen” qualification.

29

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H.J.R. 33 [introduced by Rep. Jonathan B. Bingham (D-NY-22) on Jan. 14, 1975] and
H.J.R. 38 [introduced by Rep. Bingham on Jan. 4, 1977]; H.J.R.59 [introduced by Rep. Vic
Snyder (D-AR-2) on June 11, 2003 (with 4 Democratic co-sponsors and 2 Republican cosponsors)]; H.J.R.67 [introduced by Rep. John Conyers, Jr. (D-MI-14) on Sept. 3, 2003 (with 1
Democratic co-sponsor)]; H.J.R.104 [introduced by Rep. Dana Rohrabacher (R-CA-46) on Sept.
15, 2004]; H.J.R.2 [introduced by Rep. Conyers on Jan. 4, 2005 (with 1 Democratic cosponsor)]; H.J.R.15 [introduced by Rep. Dana Rohrabacher (R-CA-46) on Feb. 1, 2005], and
H.J.R.42 [introduced by Rep. Snyder on April 14, 2005 (with 1 Democratic co-sponsor)].
34

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Conclusion
The lower court’s order should be reversed and the Secretary of the
Commonwealth directed not to certify the name of Ted Cruz to the proper officials

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for inclusion on the ballot of the Republican Primary to be held on April 26, 2016.
Dated: Norristown, PA
March 22, 2016

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Respectfully submitted,

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J. David Farrell
Attorney I.D. No. 32660
2500 DeKalb Pike, Suite 100
Norristown, PA 19401
610-270-0500
Attorney for Appellant

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Of Counsel:
ROGER J. BERNSTEIN
DANIEL BERGER, ESQ.
JUDITH HANCOCK, ESQ.
BENJAMIN DICTOR, ESQ.

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Addendum

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http://www.archives.gov/federal-register/electoral-college/laws.html: Legal
Requirements or Pledges: Electors in these States are bound by State Law or by
pledges to cast their vote for a specific candidate:
ALABAMA - 9 Electoral Votes
Party Pledge / State Law - § 17-19-2
ALASKA - 3 Electoral Votes
Party Pledge / State Law - § 15.30.040; 15.30.070

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CALIFORNIA - 55 Electoral Votes
State Law - § 6906

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COLORADO - 9 Electoral Votes
State Law - § 1-4-304

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CONNECTICUT - 7 Electoral Votes
State Law § 9-175

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DISTRICT OF COLUMBIA - 3 Electoral Votes
DC Pledge / DC Law - § 1-1312(g)

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FLORIDA - 27 Electoral Votes
Party Pledge / State Law - § 103.021(1)
HAWAII - 4 Electoral Votes
State Law - §§ 14-26 to 14-28

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MAINE - 4 Electoral Votes
State Law - § 805

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MARYLAND - 10 Electoral Votes
State Law - § 20-4

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MASSACHUSETTS - 12 Electoral Votes
Party Pledge / State Law - Ch. 53, § 8, Supp.
MICHIGAN - 17 Electoral Votes
State Law - §168.47 (Violation cancels vote and elector is replaced).
MISSISSIPPI - 6 Electoral Votes
Party Pledge / State Law - §23-15-785(3)
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MONTANA - 3 Electoral Votes
State Law - §13-25-104
NEBRASKA - 5 Electoral Votes
State Law - § 32-714

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NEVADA - 5 Electoral Votes
State Law - § 298.050

NEW MEXICO - 5 Electoral Votes
State Law - § 1-15-5 to 1-15-9 (Violation is a fourth degree felony.)

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NORTH CAROLINA - 15 Electoral Votes
State Law - § 163-212 (Violation cancels vote; elector is replaced and is subject to $500 fine.)

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OHIO - 20 Electoral Votes
State Law - § 3505.40

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OKLAHOMA - 7 Electoral Votes
State Pledge / State Law - 26, §§ 10-102; 10-109 (Violation of oath is a misdemeanor,
carrying a fine of up to $1000.)

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OREGON - 7 Electoral Votes
State Pledge / State Law - § 248.355

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SOUTH CAROLINA - 8 Electoral Votes
State Pledge / State Law - § 7-19-80 (Replacement and criminal sanctions for violation.)
VERMONT - 3 Electoral Votes
State Law - title 17, § 2732

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WASHINGTON - 11 Electoral Votes
Party Pledge / State Law - §§ 29.71.020, 29.71.040, Supp. ($1000 fine.)

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WISCONSIN - 10 Electoral Votes
State Law - § 7.75

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WYOMING - 3 Electoral Votes
State Law - §§ 22-19-106; 22-19-108

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