No.

15In the

Supreme Court of the United States

CARMON ELLIOTT,
Petitioner,
v.
TED CRUZ,
Respondent.

On Petition for a Writ of Certiorari to the
Supreme Court of Pennsylvania Middle District

PETITION FOR A WRIT OF CERTIORARI

Mario A puzzo, Esq.
Counsel of Record
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
(732) 521-1900
apuzzo@erols.com
Counsel for Petitioner

266451

A
(800) 274-3321 • (800) 359-6859

i
QUESTIONS PRESENTED
1. Can a child who is born out of the territory and
jurisdiction of the United States to at least one U.S. citizen
parent be an Article II natural born citizen?
2. Is Ted Cruz, born in a foreign nation to an alien
father and to a U.S. citizen mother, an Article II natural
born citizen?
3. Does petitioner have a Fifth and Fourteenth
Amendment right to have only a person who is an Article
II natural born citizen appear on the Pennsylvania
presidential primary election ballot and is that right
and his right thereunder to equal protection violated by
allowing over his objection Ted Cruz to be placed on that
ballot?
4. Is petitioner’s ballot challenge against Ted Cruz
rendered moot by his suspending his presidential
campaign?

ii
LIST OF ALL PARTIES TO THE PROCEEDINGS
1. Carmon Elliott, petitioner, and petitioner here.
2. Ted Cruz, respondent, and respondent here.

iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . i
L I S T O F A L L PA R T I E S T O T H E
PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii
PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONST I T U T IONA L A N D STAT U T ORY
PROVISIONS AND RULES OF COURT
INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . 3
REASONS FOR GRANTING THE PETITION . . . . . 5

iv
Table of Contents
Page
I. THE PENNSY LVA NI A SU PREME
COURT HAS DECIDED AN IMPORTANT
QUESTION OF CONSTITUTIONAL LAW
CONCERNING THE DEFINITION OF AN
ARTICLE II NATURAL BORN CITIZEN
THAT HAS NOT BEEN BUT SHOULD

BE SETTLED BY THIS COURT . . . . . . . . . . . 5
A. Having A Person Sit As President
And Commander In Chief Of The
Military Who Is Not A Natural Born
Citizen Puts The National Security Of

The United States Vitally At Risk . . . . . . . 5
B. Whether Or Not The President And
Commander In Chief Is Legitimately
Sitting In Those Offices Impacts The

Nation’s Foreign Policy . . . . . . . . . . . . . . . . . 7
C. The Nation Needs A Definition Of
“Natural Born Citizen” For Future
Presidential And Vice Presidential
Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Congress cannot define a natural
born citizen . . . . . . . . . . . . . . . . . . . . . . 10
2. The executive cannot define a

natural born citizen . . . . . . . . . . . . . . . 11

v
Table of Contents
Page
3. The political parties and the
popular vote cannot define a natural
born citizen . . . . . . . . . . . . . . . . . . . . . . 11
4. Only the judiciary can define a

natural born citizen . . . . . . . . . . . . . . . 12
II. THE PENNSY LVA NI A SU PREME
COURT HAS DECIDED AN IMPORTANT
CONSTITUTIONAL QUESTION IN A WAY
THAT CONFLICTS WITH RELEVANT

DECISIONS OF THIS COURT . . . . . . . . . . . . 12
III. R E V I E W I S W A R R A N T E D
BECAUSE THE COMMONWEALTH
O F P E N N S Y LVA N I A A N D I T S
SECRETARY OF STATE BY ALLOWING
AN INELIGIBLE PRESIDENTIAL
CANDIDATE TO PLACE HIS NAME
ON THE PRESIDENTIAL PRIMARY
ELECTION BALLOT HAS VIOLATED
PETITIONER’ S FIFTH A ND
FOURTEENTH AMENDMENT RIGHT
AND PRIVILEGE TO LIFE, LIBERTY,
A N D P R O P E R T Y A N D E Q UA L
PROTECTION OF THE LAW WHICH
IS IMPLICATED IF PETITIONER
IS FORCED T O LI V E U N DER A
PRESIDENT WHO IS NOT AN ARTICLE

II NATURAL BORN CITIZEN . . . . . . . . . . . 22

vi
Table of Contents
Page
IV. THE IMPORTANT CONSTITUTIONAL
ISSUE RAISED BY PETITIONER’S
B A L L O T C H A L L E NG E I S NO T
MOOT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. The Mootness Standard and Its
Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1. Voluntary cessation of unlawful
conduct . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2. Conduct capable of repetition yet

evading review . . . . . . . . . . . . . . . . . . . . 25
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

vii
TABLE OF APPENDICES
Page
Appendix A — denial of rehearing
of the supreme court of
Pennsylvania middle district,
ENTERED march 31, 2016 . . . . . . . . . . . . . . . . . . 1a
A ppendi x B — O pinion of the
C ommonwealth
C ourt
of P ennsylvania , F iled
March 10, 2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2a
A ppendi x c — order of the
commonwealth court of
pennsylvania , E N T E R E D
march 10, 2016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29a

viii
TABLE OF CITED AUTHORITIES
Page
CASES
Adarand Constructors v. Slater,
528 U.S. 216 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
American Ins. Ass’n v. Geramendi,
539 U.S. 396 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Anderson v. Celebrezze,
460 U.S. 780 (1983) . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Brown v. Chote,
411 U.S. 452 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Burlington Northern Railroad Company
v. Brotherhood of Maintenance of Way
Employees, 
481 U.S. 429 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Camreta v. Greene,
563 U.S. 692 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Christopher v. Harbury,
536 U.S. 403 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
City of Erie v. Pap’s A.M.,
529 U.S. 277 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

ix
Cited Authorities
Page
DeFunis v. Odegaard,
416 U.S. 312 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Dunn v. Blumstein,
405 U.S. 330 (1972) . . . . . . . . . . . . . . . . . . . . . . . . 26, 28
Elk v. Wilkins,
112 U.S. 94 (1884) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Federal Energy Commission v.
Wisconsin Right to Life, Incorporated,
551 U.S. 449 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Flores-Villar v. United States,
564 U.S. ___ (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Friends of the Earth v. Laidlaw Environmental
Services, Incorporated,
528 U.S. 167 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Honig v. Doe, 
484 U.S. 305 (1988) . . . . . . . . . . . . . . . . . . . . . . . . 29, 30
International Organization of Masters v.
Brown, 
498 U.S. 466 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Knox v. Service Employees International
Union, Local 1000,
567 U.S. ____ (2012); 132 S. Ct 2277 (2012) . . . . . . . 25

x
Cited Authorities
Page
Luria v. United States,
231 U. S. 9 (1913) . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 19
Mandel v. Bradley,
432 U.S. 173 (1977) . . . . . . . . . . . . . . . . . . . . . . . 26, 28
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) . . . . . . . . . . . . . . . . . . . . 23
Meyer v. Grant, 
486 U.S. 414 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Miller v. Albright,
523 U.S. 420 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Minor v. Happersett,
88 U.S. 162 (1875) . . . . . . . . . . . . . . . . . . . . . . . 3, 18, 19
Montana v. Kennedy,
366 U.S. 308 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Moore v. Ogilvie,
394 U.S. 814 (1969) . . . . . . . . . . . . . . . . . . . . . 26, 27, 28
Murphy v. Hunt,
455 U.S. 478 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Norman v. Reed,
502 U.S. 279 (1992) . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

xi
Cited Authorities
Page
Roe v. Wade,
410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Rogers v. Bellei,
401 U.S. 815 (1971) . . . . . . . . . . . . . . . . . . . . . . . . .18, 19
Rosario v. Rockefeller,
410 U.S. 752 (1973) . . . . . . . . . . . . . . . . . . . . . . . . 26, 28
Schaufus v. Attorney General,
45 Fed. Supp. 61 (1942) . . . . . . . . . . . . . . . . . . . . . . . . 19
Schneider v. Rusk,
377 U.S. 163 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Southern Pacific Terminal Co. v. ICC,
219 U.S. 498 (1911) . . . . . . . . . . . . . . . . . . . . . . 26, 27, 28
Spencer v. Kemna,
523 U.S. 1 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Storer v. Brown,
415 U.S. 724 (1974) . . . . . . . . . . . . . . . . . . . . . 26, 27, 28
Tutun v. United States, Neuberger v. Same,
270 U.S. 568 (1926) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
United States v.
Concentrate Phosphate Export Association,
393 U.S. 199 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

xii
Cited Authorities
Page
United States v. Ginsberg,
37 S. Ct. 422, 243 U.S. 472 (61 L. Ed. 853) . . . . . . . . 16
United States v. New York Telephone Company, 
434 U.S. 159 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
United States v. Perkins,
17 Fed. Supp. 177 (D.D.C. 1936) . . . . . . . . . . . . . . . . . 19
United States v. Schwimmer,
279 U.S. 644 (1929) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Wong Kim Ark,
169 U.S. 649 (1898) . . . . . . . . . . . . . . . . . . . . . . . . 18, 19
United States v. W.T. Grant Company,
345 U.S. 629 (1953) . . . . . . . . . . . . . . . . . . . . . 24, 25, 31
Wagner v. Cruz,
(D. Utah 2:16-cv-00055): complaint, dismissed
(Mar. 18, 2016); appeal (10th Cir. 16-4044);
petition for w rit of certiorari (15 -1243),
denied (May 31, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Weedin v. Chin Bow,
274 U.S. 657 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Williams v. Cruz,
OAL Dkt. No. STE 5016 -16, and Powers
v. Cr u z, OA L Dk t . No. S T E 5 018 -16
(N.J. Office Adm. L.) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

xiii
Cited Authorities
Page
Zimmer v. Acheson,
191 Fed. 2d 209 (10th Cir. 1951) . . . . . . . . . . . . . . . . . 19
U.S. CONSTITUTION
U.S. Const., art. I, § 2 and 3. . . . . . . . . . . . . . . . . . . . . . . . 1
U.S. Const., art. I, § 8, cl. 5 . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Const., art. II, § 1, cl. 5 . . . . . . . . . . . . . . . . . 1, 22, 30
U.S. Const., art. II, § 2, cl. 2 . . . . . . . . . . . . . . . . . . . . . . . 7
U.S. Const., art. II, § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
U.S. Const., art. IV, § 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . 1, 6, 22
U.S. Const. amend. XIV, § 1 . . . . . . . . . . . . . . . . . . . . . . . 2
STATUTES
Act of Ma r. 2 6 , 179 0, ch. 3 , 1 St at . 10 3 ,
(repealed 1795) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Act of Jan. 29, 1795, ch. 20 § 3, 1 Stat. 414, 415
(repealed 1802) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Act of April 14, 1802, Sec. 4, 2 Stat. 153, 144 . . . . . . . . . 2

xiv
Cited Authorities
Page
Act of February 10, 1855, Sec. 1, 10 Stat. 604 . . . . . . . . . 2
Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 . . . . . . . 2
Act of May 24, 1934, ch. 344, sec. 1, § 1993,
48 Stat. 797 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Nationality Act of 1940, Sec. 201,
54 Stat. 1137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16
Immigration and Nationality Act of 1955, Sec. 301,
8 U.S.C. § 1401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
U.S. SUPREME COURT RULES
S. Ct. R. 13.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
OTHER AUTHORITIES
Declaration of Independence, Preamble . . . . . . . . . . . 14
Emer de Vatt el, T he Law of Nations, or
Principles of the Laws of Nature, Applied
to the Conduct and A ffai rs of Nations
and Sovereigns, bk. 1, c. 19, sec. 211-217
(London 1797) (1st ed. Neuchatel 1758) . . . . . . . . . 2, 3
P a u l C l e m e n t & Ne a l K a t y a l , O n t h e
Me a nin g of “Na t u r a l Bo r n Ci ti z e n ,”
128 HARV. L. REV. F. 161 (2015) . . . . . . . . . . . . . . . 13

1
PETITION FOR A WRIT OF CERTIORARI
Petitioner, Carmon Elliott, respectfully submit this
Petition for a Writ of Certiorari.
OPINIONS BELOW
The Order of the Pennsylvania Supreme Court, J-562016, No. 29 MAP 2016 (App. A, 1a), entered March 31,
2016, affirming the Commonwealth Court of Pennsylvania
decision is unreported. The Opinion of the Commonwealth
Court of Pennsylvania, No. 77 M.D. 2016 (App. B, 2a-28a),
dated March 10, 2016, is also unreported. The Order of the
Commonwealth Court of Pennsylvania, No. 77 M.D. 2016
(App. C, 29a), dated March 10, 2016, is also unreported.
JURISDICTION
On March 31, 2016, the Pennsylvania Supreme Court
entered its Order affirming the decision and order of the
Commonwealth Court of Pennsylvania. App. A, 1a. This
petition is filed within 90 days of that date. Rule 13.1. The
Court’s jurisdiction rests on 28 U.S.C. § 1257(a).
CONSTITUTIONAL AND STATUTORY
PROVISIONS AND RULES OF COURT INVOLVED
1. U.S. Const., art. I, § 2 and 3.
2. U.S. Const., art. II, § 1, cl. 5.
3. U.S. Const., art. IV, § 4.
4. U.S. Const. amend. V.

2
5. U.S. Const. amend. XIV, § 1.
6. Act of Mar. 26, 1790, ch. 3, 1 Stat. 103, (repealed
1795).
7. Act of Jan. 29, 1795, ch. 20 § 3, 1 Stat. 414, 415
(repealed 1802).
8. Act of April 14, 1802, Sec. 4, 2 Stat. 153, 144.
9. Act of February 10, 1855, Sec. 1, 10 Stat. 604.
10. Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27.
11. Act of May 24, 1934, ch. 344, sec. 1, § 1993, 48
Stat. 797.
12. The Nationality Act of 1940, Sec. 201, 54 Stat.
1137.
13. Immigration and Nationality Act of 1955, Sec.
301, 8 U.S.C. § 1401.
14. Emer de Vattel, THE LAW OF NATIONS, OR
PRINCIPLES OF THE LAWS OF NATURE,
APPLIED TO THE CONDUCT AND AFFAIRS
OF NATIONS AND SOVEREIGNS, bk. 1, c.
19, sec. 211-217 (London 1797) (1st ed. Neuchatel
1758).
INTRODUCTION
The petitioner’s claim is one arising under the
Constitution and laws of the United States. This petition

3
involves the question of whether presidential candidate,
Ted Cruz (“Cruz”) is an Article II natural born citizen
and whether Cruz, after petitioner objected to his name
being printed on the Pennsylvania primary presidential
election ballot, should have been prevented from having
his name printed on that ballot.
Cruz is not an Article II natural born citizen and
thus not eligible to be President. No past President was
born out of the territory of the United States. Under the
common law with which the Framers were familiar when
they drafted and adopted the Constitution, a natural
born citizen was a child born in a country to parents who
were its citizens at the time of the child’s birth. Emer de
Vattel, The Law of Nations, or Principles of the Laws of
Nature, Applied to the Conduct and Affairs of Nations and
Sovereigns, bk. 1, c. 19, sec. 211-217 (London 1797) (1st ed.
Neuchatel 1758); Minor v. Happersett, 88 U.S. 162 (1875).
Cruz was born in a foreign nation (Canada) to an alien
father (Cuban) and to a U.S. citizen mother. Cruz therefore
cannot satisfy the Framers’ common law definition of a
natural born citizen. Rather, Cruz is a naturalized citizen
of the United States at birth, but only by virtue of the
Immigration and Nationality Act of 1952. Being neither
a natural born citizen nor a citizen of the United States
at the time of the adoption of the Constitution, Cruz is not
eligible to be President.
STATEMENT OF THE CASE
1. The parties stipulated in the Commonwealth Court
of Pennsylvania that Cruz was born on December 22, 1970,
in Calgary, Alberta, Canada; that his mother, Eleanor
Darragh, was born on November 23, 1934, in the State of

4
Delaware; that his mother is and has always been a U.S.
citizen from the moment of her birth; that at the time of
Cruz’s birth, his mother had been physically present in
the United States for more than ten years, including at
least five years after she reached the age of fourteen; and
that Cruz was a citizen at birth. App. B 3a.
2. Petitioner filed a petition with the Pennsylvania
Secretary of State to set aside the nomination petition of
Ted Cruz pursuant to which he sought to appear on the
April 26, 2016 primary election ballot for the Office of
the President. App. B 2a-3a. In his objection, petitioner
alleged that given that Cruz was born out of the territory
and jurisdiction of the United States, his name should
be stricken from the Pennsylvania 2016 primary ballot
because he is not a “natural born citizen” within the
meaning of Article II, Section 1, Clause 5 of the United
States Constitution. App. B 3a.
Respondent filed his opposition, contending that the
petitioner’s objection raised a non-justiciable political
question. App. B 6a. As to the merits, respondent
contended that a person born to at least one U.S. citizen
parent, regardless of where the child may be born, if a
citizen at birth under any law, is an Article II natural
born citizen through inheritance of citizenship from the
parent (jus sanguinis) and without needing to be born in
the United States (jus soli). App. B 14a.
The court ruled that the political question doctrine
did not apply and then went on to decide the merits
of petitioner’s objection. App. B 13a. After discussing
some articles written by some authorities, the court held
that: “Having extensively reviewed all articles cited in

5
this opinion, as well as many others, this Court holds,
consistent with the common law precedent and statutory
history, that a ‘natural born citizen’ includes any person
who is a United States citizen from birth. Accordingly,
because he was a citizen of the United States from birth,
Ted Cruz is eligible to serve as President of the United
States, and the objection filed by Carmen Elliott to the
Nomination Petition of Ted Cruz is denied.” App. B 28a.
3. Petitioner appealed the Order of the Commonwealth
Court of Pennsylvania to the Pennsylvania Supreme
Court, which affirmed that Order on March 31, 2016,
and also denied Victor William’s Notice to Intervene as
Appellant and petitioner’s application for oral argument.
App. A 1a.
REASONS FOR GRANTING THE PETITION
I. THE PENNSYLVANIA SUPREME COURT HAS
DECIDED AN IMPORTANT QUESTION OF
CONSTITUTIONAL LAW CONCERNING THE
DEFINITION OF AN ARTICLE II NATURAL
BORN CITIZEN THAT HAS NOT BEEN BUT
SHOULD BE SETTLED BY THIS COURT
A. Having A Person Sit As President And
Commander In Chief Of The Military Who Is
Not A Natural Born Citizen Puts The National
Security Of The United States Vitally At Risk
Petitioner’s objection involves the national security
of the United States. The issue of who is a natural born
citizen has great implications for our national security. The
purpose of the natural born citizen clause is to protect the

6
nation from foreign influence and ensure absolute loyalty
and attachment to the nation, its people, and the principles
of the Constitution. The purpose the Framers included the
natural born citizen clause in Article II was to provide a
“strong check” on foreign influence making its way into
our government and specifically in the Office of President
and Commander in Chief of the Military. See July 25, 1787,
letter of John Jay to General George Washington (“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 expressly that the Command in chief of the
american army shall not be given to, nor devolve on, any
but a natural born Citizen (emphasis in the original) (found
at http://thomas.loc.gov). This case is about whether our
nation should allow a precedent created by the Supreme
Court of Pennsylvania to stand that makes it possible
for an individual who is born with dual and conflicting
foreign allegiance to become President and Commander
in Chief of the Military. This case is about whether we
should allow a critical question such as the meaning of a
natural born citizen to be answered by the political parties
and the people through their act of voting at the polls or
by the judicial branch of government which is not only
constitutionally empowered to answer such a question
but also uniquely qualified to do so. The answer to this
question has direct implication not only for the protection
to life, liberty, and property to which the petitioner is
entitled under the Fifth and Fourteenth Amendments,
but also for the national security of the United States,
for who is allowed to wield the all and singular civil
and military powers of the President and Commander
in Chief of the Military is of vital importance to the
preservation and survival of the constitutional republic.

7
If the President and Commander in Chief is ineligible for
those offices, both our civilian and military sector need
to know that. The President is the Commander in Chief
of our military forces. Whether he or she is legitimate is
also vital in maintaining the proper chain of command in
our military and in giving legality to all military orders
that emanate from him or her. Since the President signs
all acts passed by Congress into law, it is vitally important
that the President be legitimately in power so as to give
those laws domestic and international legality. Hence, the
claims being made by petitioner directly and substantially
implicate the national security of the United States.
B. Whether Or Not The President And Commander
In Chief Is Legitimately Sitting In Those
Offices Impacts The Nation’s Foreign Policy
The President has great powers under the Constitution
to engage in and impact the nation’s foreign policies.
He is the Commander in Chief of the Military which
gives him great powers to execute war. He is in daily
involvement with foreign nations in a sundry of important
international issues. Under Article II, Section 2, Clause
2, the President also negotiates and signs treaties and
appoints ambassadors and other public ministers and
consuls. Hence, the President’s executive powers have a
profound impact on the foreign policy of the nation. Being
nations of laws and to accept his actions as legitimate, the
United States and foreign nations need to be assured that
the President and Commander in Chief is operating within
the bounds of the United States Constitution and laws.
See American Ins. Ass’n v. Geramendi, 539 U.S. 396, 401
(2003) (certiorari granted because of the important foreign
policy implications involved); Christopher v. Harbury, 536
U.S. 403, 412 (2002) (same);

8
C. The Nation Needs A Definition Of “Natural
Born Citizen” For Future Presidential And
Vice Presidential Elections
What is the correct meaning of the natural born citizen
clause is also critically important to future presidential
and vice presidential elections. Over the years there has
been much debate about the meaning of the clause but no
definite resolution yet by the Supreme Court. Article II’s
natural born citizen clause is one of the most controversial
clauses in the Constitution. The dispute over whether a
person born outside of the United States to American
parents, or just one parent, is a natural born citizen has
been disputed for years.1 It has arisen more intensely
this presidential election year because Senator Ted Cruz
of Texas, born in Canada to a Cuban father and a U.S.
citizen mother, was one of the leading contenders for the
Republican nomination for President.
While the natural born citizen debate concerning
children born abroad to U.S. citizen parents has raged
over the years, no court has ever ruled on the merits of
the issue now before the Court. Various state and federal
courts have dismissed multiple eligibility lawsuits against
Cruz, but most of the cases involved procedural questions,
unlike the Pennsylvania case now before the Court which
decided the merits of the meaning of a natural born
citizen. 2 The Pennsylvania Supreme Court rejected the
1.  See the discussion at IV as to how many times in U.S.
history we have had a dispute as to whether a presidential
candidate was a natural born citizen.
2.  The U.S. Supreme Court has recently denied a petition
for certiorari in a case involving Ted Cruz and standing

9
petitioner’s appeal of the state judge’s decision that held
Cruz was a natural born citizen and thus eligible under
the U.S. Constitution to run and serve as president.
Pennsylvania Senior Judge Dan Pellegrini found Cruz to
be a natural born citizen and the Pennsylvania Supreme
Court affirmed his decision. 3
in the federal courts. Wagner v. Cr uz  (D. Utah 2:16 -cv00055): complaint, dismissed (Mar. 18, 2016); appeal (10th Cir. 164044); petition for writ of certiorari (15-1243), denied (May 31, 2016)
, The Court ordered: “The petition for a writ of certiorari before
judgment is denied.” The issue in that case was Article III standing
in the federal courts. Moreover, the petition was filed before
judgment. A comprehensive list of federal and state cases that have
been filed against Ted Cruz on the natural born citizen issue and
their disposition may be found at http://excessofdemocracy.com/
blog/2016/2/status-of-pending-natural-born-citizen-challengesand-litigation-in-2016-presidential-election . The Pennsylvania
court here did not dismiss petitioner’s ballot challenge for lack
of standing or on the ground of the political question doctrine.
Additionally, here we have a final judgment of the Supreme Court
of the Commonwealth of Pennsylvania.
3.  New Jersey ALJ Jeff S. Masin, in Williams v. Cruz, OAL
Dkt. No. STE 5016-16, and Powers v. Cruz, OAL Dkt. No. STE
5018-16 (N.J. Office Adm. L.), after finding that the objectors had
standing and that their objection did not present a non-justiciable
political question, concluded that Ted Cruz is a natural born
citizen. He held that “a child born outside the United States to a
non-diplomat or non-military citizen of the United States,” whether
“a citizen-father, citizen-mother, or both, is indeed a ‘natural born
Citizen’ within the contemplation of the Constitution.” Initial
Decision, p. 25. ALJ Masin arrived at his holding by concluding
that the Framers defined a natural born citizen not only under
the common law, which is what our U.S. Supreme Court has
been saying for centuries, but also under English naturalization
statutes, which our U.S. Supreme Court has never so provided. He
arrived at this holding by concluding that the naturalization Acts

10
Cruz will most likely run for president again and the
nation will be faced with the same issue. Given the amount
of persons born out of the territory and jurisdiction of
the United States to one or two U.S. citizen parents, this
issue can easily repeat in future elections. Now is the
opportune time for the Supreme Court to give the nation
that much-needed definition of what an Article II natural
born citizen is.
1. Congress cannot define a natural born
citizen
Congress cannot define a natural born citizen, for
under Article I, Section 8, Clause 5 it only has power to
make uniform the laws of naturalization which does not
include defining an Article II natural born citizen. If the
clause is not already defined by the Constitution or by
of the English Parliament existing prior to the July 4, 1776 and
the adoption of the Constitution became part of “the common law”
upon which the Framers relied when they drafted and adopted
the Constitution and therefore under that common law as modified
children born out of the territory and jurisdiction of the United
States to a U.S. citizen father, or U.S. citizen mother, or both are
natural born citizens under the Constitution, notwithstanding
the actual naturalization Acts of Congress passed on the matter.
Apart that Masin does not explain how as he claims the English
Parliament’s naturalization Acts were incorporated into or became
part of the common law to which the Framers looked when they
drafted and adopted the Constitution and upon which they relied
to define a natural born citizen, there is no historical or legal
evidence to support such a position. On the contrary, that evidence
demonstrates that no such thing occurred. This case is currently
on appeal in the New Jersey Superior Court, Appellate Division,
under Docket No. A-003565-15. Mario Apuzzo, Esq. is the attorney
also for those appellants.

11
the United States Supreme Court, the Constitution does
not give Congress the authority to define the meaning of
a natural born citizen. While Congress can surely apply
the natural born citizen clause in a way that is consistent
with its historical meaning, Congress cannot define anew
the natural born citizen clause. Only the Court can define
the natural born citizen clause.
2. The executive cannot define a natural born
citizen
The Executive cannot resolve the natural born citizen
question. The Constitution does not give to the executive
power to define clauses in the Constitution. That the
President is to “take Care that the Laws be faithfully
executed” (Article II, Section 3) does not include any
authority to define a natural born citizen.
3. The political parties and the popular vote
cannot define a natural born citizen
The constitutional issue also cannot be decided by
the political parties and a voting majority. Our nation is
ultimately guided by the Constitution and the rule of law,
not by majority rule. Allowing the political parties and the
voting majorities to decide constitutional issues would be
tantamount to amending the Constitution without going
through the amendment process prescribed by Article V
of the Constitution and abandoning the basic principles
of republican government.

12
4. Only the judiciary can define a natural
born citizen
Only the judiciary can define what a natural born
citizen is and whether a candidate for President meets that
definition. Only the Supreme Court can therefore decide
what a natural born citizen is, whether Cruz satisfies that
definition and whether he should have been allowed to
have his name printed on the ballot for the Pennsylvania
primary election for President. Thus, this case presents an
ideal opportunity for the U.S. Supreme Court to decide an
important and recurring question regarding the meaning
of an Article II natural born citizen.
II. THE PENNSYLVANIA SUPREME COURT HAS
DECIDED AN IMPORTANT CONSTITUTIONAL
QUESTION IN A WAY THAT CONFLICTS WITH
RELEVANT DECISIONS OF THIS COURT
Judge Pellegrini correctly held that it is not an
impermissible political question for a court to analyze and
determine what an Article II natural born citizen is. But
he also held: “Having extensively reviewed all articles
cited in this opinion, as well as many others, this Court
holds, consistent with the common law precedent and
statutory history, that a ‘natural born citizen’ includes any
person who is a United States citizen from birth.” Based
on that definition, he then found Cruz to be a natural
born citizen. While he stated that “[t]he framework for
addressing who is natural born citizen within the meaning
of Article II, Section 1 centers on the circumstances of
one’s birth” (App. B 14a), he did not state what he meant
by “from birth?” Does he mean from the moment of birth
or by birth alone and under what birth circumstances?
He does not provide a definition of a natural born citizen

13
which contains the birth circumstances under which one
is to be a citizen “from birth.” This holding is erroneous
and conflicts with relevant decisions of this Court.
In arriving at his holding, Judge Pellegrini and
authorities upon whom he relies have concluded that
neither the English common law nor the Fourteenth
Amendment provide the definitive definition of an Article
II natural born citizen. Where Judge Pellegrini errs is
in placing his reliance for his definition of a natural born
citizen upon Charles Gordon, Jack Maskell, Paul Clement,
and Neal Katyal4 rather than on primary historical and
legal sources, including decisions of the U.S. Supreme
Court. The arguments of these commentators, who focus
on “at birth” and “by birth” rather than on the birth
circumstances upon which the Framers relied for defining
a natural born citizen, are flawed and cannot serve as any
reasonable basis for defining a natural born citizen.
4.  Katyal argues a contradictory view in Flores-Villar v.
United States, 564 U.S. ___ (2011) Brief for the United States
(Neal Katyal Acting Solicitor General )(“The fact that Congress
has enacted a law under which some foreign born individuals
acquire U.S. citizenship at birth by virtue of a parent’s citizenship
does not mean that such individuals are not naturalized citizens
for purposes of the Constitution…when Congress enacts
rules to govern acquisition of citizenship, it acts pursuant
to its constitutional authority to establish a uniform rule of
naturalization.”)http://www.scotusblog.com/case-files/cases/floresvillar-v-united-states/ In his article, Paul Clement & Neal Katyal,
On the Meaning of “Natural Born Citizen,” 128 HARV. L. REV.
F. 161 (2015), Katyal argues a contradictory position, stating that
one who acquires citizenship at birth under an Act of Congress is
not a naturalized citizen, but rather a natural born citizen. Judge
Pellegrini relied upon the Katyal and Clemens article to come to
his conclusion that Cruz is a natural born citizen.

14
Judge Pellegrini’s holding and reasoning are contrary
to the text and structure of the Constitution, the purpose
for the natural born citizen clause, and historical and legal
sources, including U.S. Supreme Court precedent. The
Founders and Framers wrote the Constitution in a way that
best provided for the protection of our unalienable rights to
life, liberty, property, and the pursuit of happiness. They
sought to do that by giving us a constitutional republic
and providing for the survival and preservation of that
republic. In the governmental scheme that they gave us,
they provided for the Office of President and Commander
in Chief, a singular and all-powerful office involving the
concentration of both civilian and military power into one
person. Because of such concentration of power in one
individual, the Framers recognized that such offices also
presented great risk to the republic and its people. They
therefore gave us the natural born citizen clause as one
basis for eligibility to such offices. Through the natural
born citizen clause, they instructed us that such power
must fall into the hands of a person who can be trusted
with it to the greatest degree possible and that such
guarantee is of much greater importance to the survival
and preservation of the constitutional republic than the
fleeting politics and personal favor of having one person
necessarily occupy that office. What is profound is that
the Founders and Framers put their trust in “Nature and
Nature’s God”5 and not in political and legal institutions
to accomplish that end. 
5.  “When in the Course of human events, it becomes
necessary for one people to dissolve the political bands which have
connected them with another, and to assume among the powers
of the earth, the separate and equal station to which the Laws of
Nature and of Nature’s God entitle them, a decent respect to the
opinions of mankind requires that they should declare the causes
which impel them to the separation.” Declaration of Independence,
Preamble. 

15
Only the President and Vice-President have to be
natural born citizens in order to be eligible to those offices.
Undoubtedly, the Framers chose a natural born citizen
as one of the three requirements to be eligible to the
Office of President for those born after the adoption of the
Constitution because it best satisfied their need to provide
that future Presidents and the Commanders in Chief of the
Military have the strongest allegiance or tie to the United
States, considering moral, equitable, and psychological
factors and the laws of other nations potentially creating
dual citizenship. Only a person born in the United States
to U.S. citizen parents satisfied that need given that birth
under such circumstances gave one from the moment of
birth sole allegiance to the United States.
Under its naturalization Acts, Congress has adopted
children born out of the territory and jurisdiction of the
United States to U.S. citizen parents as citizens of the
United States from the moment of birth. Not being either
Article II natural born citizens or Fourteenth Amendment
citizens of the United States, as part of these Acts,
Congress has been free under its naturalization powers
to impose both conditions precedent and subsequent (if
not satisfied even revoking citizenship granted at birth)
in order for one to acquire and retain the U.S. citizenship
granted by it under those Acts. For persons born out of the
United States, Congress has even been free to withhold
completely the right of U.S. citizenship as it has seen fit.6
6.  In the Naturalization Act of 1802, Congress provided that
any child born after April 14, 1802 out of the United States to U.S.
citizen parents who became citizens after that date were aliens.
It was only through the Naturalization Act of 1855 that Congress
did not limit a children’s ability to become citizens of the United
States at birth by the date of their birth or the date their parents
became U.S. citizens.

16
In the Naturalization Acts of 1790, 1795, 1802, and 1855,
Congress required, given the common law doctrine of
coverture and the laws of child legitimacy, that both the
father and mother be U.S. citizens, with the father having
to be a U.S. resident before the child’s birth. See Tutun
v. United States, Neuberger v. Same, 270 U.S. 568 (1926)
(“There is, of course, no ‘right to naturalization unless all
statutory requirements are complied with.’ United States
v. Ginsberg, 37 S. Ct. 422, 243 U.S. 472, 475 (61 L. Ed.
853); Luria v. United States, 34 S. Ct. 10, 231 U.S. 9, 22 58
L. Ed. 101.”). In 1934, Congress for the first time allowed
a U.S. citizen mother to transmit her U.S. citizenship to
her child born to her out of the territory and jurisdiction
of the United States. Congress in the Nationality Act
of 1940, Section 201, 54 Stat. 1137 imposed retention
conditions, providing that if the child who acquired U.S.
citizenship by birth abroad after May 24, 1934 to a U.S.
citizen parent did not reside in the United States for a
least five years between the ages of 13 and 21, his or her
U.S. citizenship would cease. With Congress having such
power over these persons concerning their citizenship,
they surely could not be natural born citizens, for it they
were natural born citizens, Congress could not deny to
them their birthright citizenship through such conditions
precedent and subsequent.
Since 1934, the U.S. citizenship of one or two parents
of a child born to them out of the territory and jurisdiction
of the United States has under the Constitution and the
naturalization Acts of Congress enabled a child to become
a “naturalized” born citizen of the United States, but it
has never since the Founding been sufficient to make any
such child a “natural” born citizen of the United States and
therefore eligible to be President of the United States. It is

17
the Constitution and not an Act of Congress or treaty that
controls the meaning of a natural born citizen. Since the
Constitution itself does not define the clause, we have to
look outside it for that meaning. The U.S. Supreme Court
has long established that in looking for meaning of terms
used in the Constitution, we are to look to the common
law as known by the Framers. Minor.
The common law the nomenclature with which the
Framers were familiar when they drafted and adopted
the Constitution never recognized that citizenship can
pass by inheritance or descent alone. Rather, it has always
recognized that it was necessary that one be born in the
country in order to acquire it from the moment of birth.
With Congress recognizing how the common law defined
a natural born citizen, it saw fit to provide, pursuant to
the naturalization powers that the Constitution gave to it,
for children born out of the territory and jurisdiction of
the United States, like the English Parliament had done.
Pursuant to those powers, it passed naturalization Acts to
make persons who were not citizens of the United States
under the common law. Later, it added more persons to
the citizens by treaties.
In order to allow persons born in the United States
who were not born to U.S. citizen parents (free slaves) to
become citizens of the United States, Congress passed
the Civil Rights Act of 1866 and constitutionalized it
through the Fourteenth Amendment (which eventually
was applied to also make citizens of the United States
of children born in the United States to European and
Asian parents). Congress confirmed the common law
principle that birth in the country was necessary for one
to be born a citizen of the United States when it passed

18
the Civil Rights Act of 1866 and drafted and adopted the
Fourteenth Amendment, which was then ratified by the
states in 1868. The Act and Amendment recognized only
two sources of citizenship, by birth or by naturalization.
Under the Act, Amendment, and U.S. Supreme Court
precedent such as Minor, United States v. Wong Kim
Ark, 169 U.S. 649 (1898), and several more modern U.S.
Supreme Court cases such as Rogers v. Bellei, 401 U.S. 815
(1971), only those born under circumstances prescribed
in the original Constitution, i.e., under the common law,
by birth in the country to U.S. citizen parents, and under
the Fourteenth Amendment, by birth in the country while
subject to its jurisdiction, could acquire U.S. citizenship
by birth without the aid of any naturalization Act of
Congress. All those born out of the country could acquire
such citizenship only through the naturalization Acts of
Congress or treaties. In other words, only persons born in
the country could enjoy U.S. citizenship from the moment
of birth as a constitutional right. Under the original
Constitution, those born in the country to U.S. citizen
parents, becoming citizens from the moment of birth by
virtue of their birth circumstances alone, were Article
II natural born citizens (Minor), and under the amended
Constitution, in addition to the natural born citizens, also
those born in the country to one or two qualifying alien
parents, becoming citizens from the moment of birth
only by virtue of the Fourteenth Amendment itself, were
“citizens of the United States” “at birth,” but not “natural
born citizens.” Wong Kim Ark. All other persons, being
born as “aliens or foreigners” under the common law had
to look to a naturalization Act of Congress or treaty to be
adopted as a citizen of the United States, either at birth
or after birth. Minor; Wong Kim Ark.

19
Judge Pellegrini’s holding is in direct violation of
binding precedent of the U.S. Supreme Court. One needing
a naturalization Act of Congress to be a citizen is not nor
can one be a natural born citizen. See Minor v. Happersett,
88 U.S. 162, 167-68 (1875)7; Elk v. Wilkins, 112 U.S. 94
(1884); U.S. v. Wong Kim Ark, 169 U.S. 649, 665 (1898);
Luria v. United States, 231 U.S. 9 (1913); Weedin v. Chin
Bow, 274 U.S. 657 (1927); United States v. Schwimmer, 279
U.S. 644 (1929); Montana v. Kennedy, 366 U.S. 308 (1961);
Schneider v. Rusk, 377 U.S. 163 (1964); Rogers v. Bellei,
401 U.S. 815 (1971); and Miller v. Albright, 523 U.S. 420
(1998) (all explain that children born out of the territory
and jurisdiction of the United States need naturalization
to be citizens of the United States, can be citizens of the
United States by inheritance of citizenship from U.S.
citizen parents only through a naturalization Act of
Congress, and without such Act there is no such inherited
citizenship under the common law and such children would
be aliens). See also United States v. Perkins, 17 Fed. Supp.
177 (D.D.C. 1936); Schaufus v. Attorney General, 45 Fed.
Supp. 61 (1942); Zimmer v. Acheson, 191 Fed.2d 209 (10th
Cir. 1951) (all the same). These cases also prove that
7.  Judge Pellegrini has read Minor as though it left open
the question of what is a natural born citizen. He quotes Minor
saying that “[r]esort must be had elsewhere,” meaning that we
“must” look to the common law for the definition of a natural
born citizen, but he says that it was only a “suggestion” of the
Court. He then writes “Minor v. Happersett, 88 U.S. 162, 167, 22
L.Ed. 627 (1874) (suggesting this approach to interpretation but
ultimately not reaching the issue).” App. B 15a. So, according to
Judge Pellegrini, not only did Minor only make a suggestion that
we look to the common law for the definition of a natural born
citizen (but the Court said that resort “must” be had elsewhere),
but the Court also did not reach the question of what is a natural
born citizen under that common law (when in fact it did).

20
the common law that defined U.S. citizenship never did
incorporate English naturalization statutes as providing
some different meaning to that common law, a meaning
suggesting that a person born out of the United States to
one or two U.S. citizen parents was a natural born citizen
rather than a naturalized citizen of the United States.
The decisions of the U.S. Supreme Court are binding
upon Judge Pellegrini, but he ignores them, relies in their
place upon some scholarly articles, and from those articles
adopts a revisionist definition of a natural born citizen in
the place of their teachings.
The U.S. Supreme Court has always recognized and
confirmed that only by birth in the country can one become
a citizen without the need for a naturalization Act or treaty
to make one a citizen and that such citizenship is insulated
from the reach of Congress’s naturalization powers. A
“naturalized” citizen, as that term is understood by the
Constitution and not only by the naturalization Acts of
Congress, having been so made by naturalization Act or
treaty, cannot be a natural born citizen. Anyone born out
of the territory or jurisdiction of the United States needs
to be naturalized. Hence, anyone born out of the territory
or jurisdiction of the United States and becoming a citizen
of the United States by virtue of a naturalization Act of
Congress or treaty, is a naturalized citizen of the United
States, either at birth or after birth, but not a natural
born citizen.
Ted Cruz was born in 1970 in a foreign nation (Canada)
to an alien father (Cuban who became a naturalized
Canadian citizen in 1973) and to a U.S. citizen mother.
Not being born in the territory and jurisdiction of the
United States, he could not look to the Constitution to

21
make him a citizen of the United States. Rather, he needed
a naturalization Act of Congress to make him a citizen of
the United States. In fact, when he was born, he became
a naturalized citizen of the United States at birth under
a naturalization Act of Congress, the Immigration and
Nationality Act of 1952. Born under such circumstances,
i.e., not born in the country and not born to U.S. citizen
parents, he needed this naturalization Act of Congress to
be adopted or naturalized as a citizen of the United States.
Without this Act or some other similar Act being in effect
when he was born, Cruz would have been born an alien
(consider that under the Naturalization Act of 1802 Cruz
would have been born an alien). Not being born in the
United States and therefore needing a naturalization Act
of Congress in order to be a citizen of the United States,
he is not a Fourteenth Amendment citizen of the United
States by birth, let alone an Article II natural born citizen.
Not satisfying the common law definition of a natural
born citizen and therefore needing a naturalization Act of
Congress to become a citizen of the United States, Cruz
was not born with sole allegiance to the United States. In
fact, being born in Canada, he was born a citizen of and in
allegiance to Canada (through jus soli). Cruz renounced
the Canadian citizenship with which he was born only
in 2014. Being born to a Cuban father, in the eyes of the
Framers, he was also born a citizen of Cuba (through
jus sanguinis). Cruz has not addressed whether he ever
acquired Cuban citizenship. Being born with citizenship
and allegiance to Canada and Cuba, Cruz was not born
with sole allegiance to the United States as the Framers
required of future Presidents and Commanders in Chief.
He is therefore not an Article II natural born citizen.

22
III. REVIEW IS WARRANTED BECAUSE THE
COMMONWEALTH OF PENNSYLVANIA AND
ITS SECRETARY OF STATE BY ALLOWING AN
INELIGIBLE PRESIDENTIAL CANDIDATE TO
PLACE HIS NAME ON THE PRESIDENTIAL
PRIMARY ELECTION BALLOT HAS VIOLATED
PETITIONER’S FIFTH AND FOURTEENTH
A M EN DM EN T RIGH T A N D PRI V I LEGE
TO LIFE, LIBERTY, AND PROPERTY AND
EQUAL PROTECTION OF THE LAW WHICH IS
IMPLICATED IF PETITIONER IS FORCED TO
LIVE UNDER A PRESIDENT WHO IS NOT AN
ARTICLE II NATURAL BORN CITIZEN
The Framers included the natural born citizen
requirement for Presidents so that the nation and its
people would be better protected in their life, liberty,
and property. Therefore, a fundamental right of
citizenship and voting is the right to make sure that the
person running for President is a natural born citizen
as is required by Article II, Section 1, Clause 5 of the
Constitution. A citizen needs to be able to protect this right
and privilege because it goes to his protecting his life,
liberty, and property. This fundamental right is protected
by the Fifth and Fourteenth Amendment’s privileges
and immunities and the equal protection clauses. The
Commonwealth of Pennsylvania and its Secretary of State
abridged petitioner’s Fifth and Fourteenth Amendments
privilege and right to have only a person who is a natural
born citizen appear on the Pennsylvania presidential
primary election ballot by allowing over his objection
candidate Ted Cruz, who is not a natural born citizen, to be
placed on the Pennsylvania presidential primary election
ballot. In providing protection to other voters for other

23
aspects of the voting laws, but not providing petitioner
protection with respect to the natural born citizen clause,
the Commonwealth of Pennsylvania and its Secretary of
State has denied petitioner the equal protection of the
law. Surely the Constitution would not leave someone like
the petitioner without any remedy to protect the same
rights which the Declaration of Independence and the
Constitution recognize as his unalienable rights to life,
liberty, and property. See Marbury v. Madison, 5 U.S.
(1 Cranch) 137 (1803) (where there is a right there is a
remedy).
IV. T H E I M P O R T A N T C O N S T I T U T I O N A L
ISSUE RAISED BY PETITIONER’S BALLOT
CHALLENGE IS NOT MOOT
Plaintiff has a duty to bring to the Court’s attention
facts which may raise an issue of mootness. Arizonans for
Official English v. Arizona, 520 U.S. 43, 68 n.23 (1997).
A. The Mootness Standard and Its Exceptions
Under Article III, a moot case must be dismissed
because there no longer exists a case or controversy. Thus,
a civil action or appeal in which the court’s decision will
not affect the rights of the parties is ordinarily beyond
the power of the court to decide, provided it does not
fall within one of the recognized exceptions. DeFunis v.
Odegaard, 416 U.S. 312 (1974). There are four exceptions
to the application of the mootness doctrine, two of which
apply to petitioner’s claim, voluntary cessation of unlawful
conduct and conduct capable of repetition yet evading
review.

24
1. Voluntary cessation of unlawful conduct
Cruz has voluntarily suspended his presidential
campaign. In United States v. W.T. Grant Company,
345 U.S. 629, 633 (1953), the Supreme Court held that
the voluntary cessation of illegal conduct would moot a
case only if the defendant established that “there is no
reasonable expectation that the wrong will be repeated”).
In Friends of the Earth v. Laidlaw Environmental
Services, Incorporated, 528 U.S. 167, 189, 193 (2000)
(quoting and citing United States v. Concentrate
Phosphate Export Association, 393 U.S. 199, 203 (1968)),
the Court explained that “[a] case might become moot
if subsequent events made it absolutely clear that the
allegedly wrongful behavior could not reasonably be
expected to recur.”). In Adarand Constructors v. Slater,
528 U.S. 216, 222 (2000) the Court said that the burden
of showing non-recurrence lies with party asserting
mootness and unless the defendant meets that “heavy”
burden, the court has the power to hear the case and the
discretion to grant injunctive relief.
In Friends of the Earth v. Laidlaw Environmental
Services, the Court held that a claim for civil penalties
intended to deter a polluter from exceeding discharge
limits in a permit was not necessarily moot, even when
the facility at issue had closed, because the defendant
retained the permit. Friends of the Earth, 528 U.S. at 19394. In City of Erie v. Pop’s A.M., the Court rejected the
prevailing plaintiff’s suggestion of mootness in a challenge
to city restrictions on adult dancing establishments.
Notwithstanding that the club had closed, the Court
noted the city’s continued stake in wishing to enforce the
statute enjoined by the lower courts and the possibility
that the plaintiff would reopen a new club. City of Erie

25
v. Pap’s A.M., 529 U.S. 277, 287-88 (2000). When, as in
City of Erie, the claim involves public rather than private
interests, a reduced risk of recurrence is sufficient to
overcome mootness. W.T. Grant Company, 345 U.S.
at 632. Moreover, the defendant who discontinues the
challenged conduct while maintaining its legality is
unlikely to succeed with a mootness defense. Knox v.
Service Employees International Union, Local 1000,
567 U.S. ____ (2012); 132 S. Ct 2277, 2287 (2012). Thus,
mootness requires a fact-sensitive based prediction
of the probability of recurrence and an analysis of the
plaintiff’s continued need for relief. Camreta v. Greene,
563  U.S.  692  (2011). It also requires an examination of
the defendant’s representations of future intent and the
public interest in resolution of the dispute. The burden of
demonstrating mootness rests on the defendant, and the
essential inquiry is the genuineness of the defendant’s
voluntary cessation of unlawful conduct.
Cruz has suspended his presidential campaign.
But there is no indication that he withdrew from the
presidential race because he concedes that he is not
a natural born citizen. Rather, he withdrew after not
garnering enough votes in the primary. Hence, there is
no indication that he will not run again for President in
the next presidential election. The petitioner’s claims are
therefore not moot simply because he withdrew from the
presidential race in this election.
2. Conduct capable of repetition yet evading
review
Even though the 2012 presidential election is over, this
case is not moot because the controversy presented in the
case is capable of repetition, yet evading review. The U.S.

26
Supreme Court has dealt with the issue of mootness and its
inapplicability when a controversy is capable of repetition,
yet evading review. In Roe v. Wade, 410 U.S. 113, 124
(1973), the Supreme Court held that the conclusion of a
pregnancy did not moot a challenge to a statute prohibiting
abortions without any showing that the plaintiff was likely
to suffer another unwanted pregnancy. Litigation brought
by candidates challenging ballot access restrictions does
not become moot when the election is complete. Norman
v. Reed, 502 U.S. 279, 288 (1992); Anderson v. Celebrezze,
460 U.S. 780, 784 n.3 (1983); Moore v. Ogilvie, 394 U.S.
814, 816 (1969). The Supreme Court shows no interest in
the question of whether the affected candidate is likely
to run for election again. See also Mandel v. Bradley, 432
U.S. 173, 175 n.1 (1977); Storer v Brown; 415 U.S. 724, 737
n.8 (1974); Brown v. Chote, 411 U.S. 452 (1973). In Storer,
the Court found:
The 1972 election is long over, and no effective
relief can be provided to the candidates or
voters, but this case is not moot, since the
issues properly presented, and their effects
on independent candidacies, will persist as
the California statutes are applied in future
elections. This is, therefore, a case where the
controversy is “capable of repetition, yet evading
review.” Rosario v. Rockefeller, 410 U.S. 752,
756 n. 5 (1973); Dunn v. Blumstein, 405 U.S.
330, 333 n. 2 (1972); Moore v. Ogilivie, 394 U.S.
814, 816 (1969); Southern Pacific Terminal Co.
v. ICC, 219 U.S. 498, 515 (1911). The “capable
of repetition, yet evading review” doctrine, in
the context of election cases, is appropriate
when there are “as applied” challenges as well

27
as in the more typical case involving only facial
attacks. The construction of the statute, an
understanding of its operation, and possible
constitutional limits on its application, will have
the effect of simplifying future challenges, thus
increasing the likelihood that timely filed cases
can be adjudicated before an election is held.
Id., n. 8, at 737. See also Anderson, 460 U.S. at n.3, 806)
(finding that even though the election was over, the case
was not moot and citing Storer, 415 U.S. at 737, n. 8).
In Norman, 502 U.S. at 279, the Court found:
We start with Reed’s contention that we should
treat the controversy as moot because the
election is over. We should not. Even if the issue
before us were limited to petitioners’ eligibility
to use the Party name on the 1990 ballot, that
issue would be worthy of resolution as ‘capable
of repetition, yet evading review.’ Moore v.
Ogilvie, 394 U.S. 814, 816 (1969). There would
be every reason to expect the same parties to
generate a similar, future controversy subject
to identical time constraints if we should fail
to resolve the constitutional issues that arose
in 1990.”
Id. at 287-88. See also Moore, 394 U.S. at 814 (even though
appellees urged that the election was over and there was
no possibility of granting to appellant any relief, the
Court found that “[t]he problem is therefore ‘capable of
repetition, yet evading review,’ Southern Pacific Terminal
Co., 219 U.S. at 515. The need for its resolution thus reflects

28
a continuing controversy in the federal-state area where
our “one man, one vote” decisions have thrust. We turn
then to the merits.”) ; Rosario, 410 U.S. at 763, n.5 (1973)
(stating: “Although the June primary election has been
completed and the petitioners will be eligible to vote in
the next scheduled New York primary, this case is not
moot, since the question the petitioners raise is “‘capable
of repetition, yet evading review.’” Dunn v. Blumstein,
405 U.S. 330, 333 n. 2 (1972); Moore v. Ogilvie, 394 U.S.
814, 816 (1969); Southern Pacific Terminal Co. v. ICC, 219
U.S. 498, 515 (1911)); Dunn v. Blumstein, 405 U.S. 330,
360 n. 2 (1972) (the Court stated “[a]lthough appellee now
can vote, the problem to voters posed by the Tennessee
residence requirements is ‘capable of repetition, yet
evading review.’ Moore v. Ogilvie, 394 U.S. 814, 816
(1969); Southern Pacific Terminal Co. v. ICC, 219 U.S.
498, 515 (1911)”); and Mandel, 432 U.S. at 175 (“Bradley
successfully gathered the requisite number of signatures,
obtained a place on the ballot, ran, and lost. This case is
nonetheless not moot. Storer v. Brown, 415 U.S. 724, 415
U.S. 737 n. 8 (1974)”).
Challenges to recurrent conduct of short duration
often avoid mootness under the exception for acts “capable
of repetition yet evading review.” Conduct is capable
of repetition but evading review when the duration of
the challenged action is too short to be litigated fully
before the cessation or expiration of the challenged
conduct, and the plaintiff is reasonably expected to
be subject to the same action in the future. Spencer
v. Kemna, 523 U.S. 1, 17 (1996); Murphy v. Hunt, 455
U.S. 478, 482 (1982). Deciding whether this exception
applies requires assessing the probability of repetition
or recurrence, the risk that repeated harm will be of

29
sufficiently short duration so as to evade review and
remedy, and the degree to which repetition may affect the
plaintiff. While the plaintiff has the burden of showing
that conduct is capable of repetition yet evading review,
the Supreme Court has found claims not to be moot on
these grounds on many occasions. See, e.g., International
Organization of Masters v. Brown,  498 U.S. 466, 47273 (1991) (challenge to union election rule);  Meyer v.
Grant,  486 U.S. 414, 417 n.2 (1988) (challenge to state
law on electoral initiatives); Honig v. Doe, 484 U.S. 305,
317-18 (1988) (claim under Education for the Handicapped
Act);  Burlington Northern Railroad Company v.
Brotherhood of Maintenance of Way Employees, 481 U.S.
429, 436 n.4 (1987) (labor dispute); United States v. New
York Telephone Company,  434 U.S. 159, 165 n.6 (1977)
(challenge to order requiring pen register surveillance).
First, the issue of whether a candidate running for
president is a natural born citizen and whether he or she
should be placed on the Pennsylvania primary election
ballot is also “capable of repetition, but evading review.”
The action here was too short to be fully litigated prior
to cessation or expiration. Petitioner did everything that
he could to expedite the case in the state court so as to
have a decision on his ballot challenge. Despite those
efforts, the election has come and passed and Cruz has
now suspended his campaign.
Second, the conduct complained of is capable of
repetition. The Court held that a “reasonable expectation”
of recurrence was sufficient to overcome a suggestion
of mootness: “in numerous cases ... we have found
controversies capable of repetition based on expectations
that, while reasonable, were hardly demonstrably

30
probable.” Honig, 484 U.S. at 305. The issue of what is a
natural born citizen and the state’s role in answering that
question as it applies to placing candidates for president
on the state election ballots remains even though the
election is over. The Constitution at Article II, Section 1,
Clause 5 still requires that a would-be President has to be
a natural born citizen in order to be President. The coming
and going of the 2008 and 2012 election has not changed
that constitutional requirements nor has it resolved
the question of the state’s role in resolving questions of
whether a presidential candidate meets that definition.
The issue of what is a natural born citizen has been raised
in the past elections. Those elections have been long over.
But as we can see, in both the 2008 and 2012 presidential
elections, the same issue appeared and was the subject of
much litigation in both our state and federal courts.
The nation is in great need of the U.S. Supreme Court
finally telling it what a natural born citizen is. Historically,
this issue just keeps coming up but is never resolved for
one reason or another. App. B 13a. No past President
has been born outside of the United States. As Judge
Pellegrini correctly observed: “This uncertainty has led
to questions of eligibility to hold that office each time a
person who runs for President is not born on American
soil or, for that matter, is born on American soil to noncitizens.” App. B 14a. The natural born citizen issue has
come up in past elections involving President Chester A.
Arthur, Christopher Schürmann, Charles Evans Hughes,
Franklin D. Roosevelt, Jr., Barry Goldwater, Governor
George Romney, Lowell Weicker, Senator John McCain,
President Barack Obama, Senator Marco Rubio, Governor
Bobby Jindal. As is evident, the issue of what is a natural
born citizen needs to be resolved now so as not to waste

31
voters’ and the nation’s time, energy, and resources on
ineligible candidates in the future and not to drag the
judicial branch of government into a dispute involving
whether a President-Elect is a natural born citizen.
Third, the petitioner must show that he, rather
than simply anyone, “will again be subjected to the
alleged illegality.” Lyons, 461 U.S. at 107-8. Despite this
restrictive language, the Court has invoked the exception
in circumstances in which the probability of recurrence
to the plaintiff is not obvious. Litigation involving the
regulation of elections which are of paramount public
interest has proceeded despite claims of mootness without
any apparent basis for a finding of probable recurrence.
The public importance of the issue may explain the more
relaxed approach in these narrow categories of cases.
W.T. Grant Company, 345 U.S. at 632. (repetition or
review element, “together with a public interest in having
the legality of the practices settled, militates against a
mootness conclusion”). At the same time, the nature of the
recurrent action need not be exactly the same as the first,
at least in as-applied election law cases. Federal Energy
Commission v. Wisconsin Right to Life, Incorporated,
551 U.S. 449, 463-64 (2007). Petitioner will be voting
in the 2016 general presidential election and in future
presidential elections. Cruz will probably be running for
President, if not in 2016 general election, then in that of
2020.

32
CONCLUSION
The Court should grant the petition for a writ of
certiorari.
Respectfully submitted.
Dated: June 25, 2016

Mario A puzzo, Esq.
Counsel of Record
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
(732) 521-1900
apuzzo@erols.com
Counsel for Petitioner

APPENDIX

1a
AppendixOF
A REHEARING OF
APPENDIX A — DENIAL
THE SUPREME COURT OF PENNSYLVANIA,
MIDDLE DISTRICT, ENTERED MARCH 31, 2016
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
NO. 29 MAP 2016
CARMON ELLIOTT,
Appellant,
v.
TED CRUZ,
Appellee.
ORDER
PER CURIAM

DECIDED: MARCH 31, 2016

AND NOW, this 31st day of March, 2016, the Order
of the Commonwealth Court is hereby AFFIRMED.
Victor Williams’ pro se Notice to Intervene as Appellant
is DENIED. Appellant’s Application for Oral Argument
is DENIED.
/s/
CHIEF CLERK

2a
Appendix
B
APPENDIX B
— OPINION
OF THE
COMMONWEALTH COURT OF PENNSYLVANIA,
FILED MARCH 10, 2016
IN THE COMMONWEALTH COURT
OF PENNSYLVANIA
No. 77 M.D. 2016
CARMON ELLIOTT,
Petitioner,
v.
TED CRUZ,
Respondent.
March 10, 2016, Heard; March 10, 2016, Decided;
March 10, 2016, Filed
BEFORE: HONORABLE DAN PELLEGRINI, Senior
Judge.
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE
PELLEGRINI
Before this Court is a petition to set aside the
nomination petition of Ted Cruz (Candidate), pursuant to
which he seeks to appear on the April 26, 2016 primary

3a
Appendix B
election ballot for the Office of the President of the United
States of America, filed by Carmon Elliott (Objector),
a registered Republican who resides and votes in
Pennsylvania, asserting that the Candidate is ineligible
to hold that office under the United States Constitution.
The parties have stipulated that the Candidate was
born on December 22, 1970, in Calgary, Alberta, Canada;
that his mother, Eleanor Darragh, was born on November
23, 1934, in the State of Delaware; that his mother is and
has always has been a United States citizen, since the
moment of her birth; that at the time of the Candidate’s
birth, his mother had been physically present in the United
States for more than ten years of her life, including at least
five years after she reached the age of fourteen; and that
the Candidate was a citizen from the moment of his birth.
Because the Candidate was born in Canada, Petitioner
contends that Candidate’s name should be stricken from
the Pennsylvania 2016 primary ballot because he is not a
“natural born citizen” within the meaning of Article II,
Section 1,1 clause 5 of the United States Constitution.
1.  The entire text of Article II, Section 1 provides:
The executive Power shall be vested in a President
of the United States of America. He shall hold his
Office during the Term of four Years, and, together
with the Vice President, chosen for the same Term,
be elected, as follows:
Each State shall appoint, in such Manner as
the Legislature thereof may direct, a Number of
Electors, equal to the whole Number of Senators and

4a
Appendix B

Representatives to which the State may be entitled in
the Congress: but no Senator or Representative, or
Person holding an Office of Trust or Profit under the
United States, shall be appointed an Elector.
The Congress may determine the Time of chusing
the Electors, and the Day on which they shall give
their Votes; which Day shall be the same throughout
the United States.
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.
In Case of the Removal of the President from
Office, or of his Death, Resignation, or Inability to
discharge the Powers and Duties of the said Office,
the Same shall devolve on the Vice President, and
the Congress may by Law provide for the Case of
Removal, Death, Resignation or Inability, both of the
President and Vice President, declaring what Officer
shall then act as President, and such Officer shall
act accordingly, until the Disability be removed, or a
President shall be elected.
The President shall, at stated Times, receive for
his Services, a Compensation, which shall neither be
encreased nor diminished during the Period for which
he shall have been elected, and he shall not receive
within that Period any other Emolument from the
United States, or any of them.

5a
Appendix B

Before he enter on the Execution of his Office, he
shall take the following Oath or Affirmation:--”I do
solemnly swear (or affirm) that I will faithfully execute
the Office of President of the United States, and will
to the best of my Ability, preserve, protect and defend
the Constitution of the United States.”
U.S. Const. art. II, § 1.
The Twelfth Amendment further 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 of 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. But in choosing the President,
the votes shall be taken by states, the representation
from each state having one vote; a quorum for this

6a
Appendix B
I.
A.
Initially, the Candidate contends that we should not
address the question of whether he is a “natural born
citizen” because it presents a non-justiciable political
question. He contends that this doctrine applies because
the question of whether a candidate is eligible to take office
as President of the United States is within the purview
of the Electoral College or the United States Congress.

purpose shall consist of a member or members
from two-thirds of the states, and a majority of all
the states shall be necessary to a choice. And if the
House of Representatives shall not choose a President
whenever the right of choice shall devolve upon them,
before the fourth day of March next following, then
the Vice-President shall act as President, as in the
case of the death or other constitutional disability
of the President.--The person having the greatest
number of votes as Vice-President, shall be the VicePresident, if such number be a majority of the whole
number of Electors appointed, and if no person have
a majority, then from the two highest numbers on
the list, the Senate shall choose the Vice-President;
a quorum for the purpose shall consist of two-thirds
of the whole number of Senators, and a majority of
the whole number shall be necessary to a choice. But
no person constitutionally ineligible to the office of
President shall be eligible to that of Vice-President
of the United States.
U.S. Const. amend. XII.

7a
Appendix B
The political question doctrine is invoked only when
the framers of the Constitution made clear their intention
that the judiciary abstain from resolving a particular
question of constitutional interpretation. In Zivotofsky
ex rel. Zivotofsky v. Clinton, the United States Supreme
Court addressed this doctrine, stating that:
In general, the Judiciary has a responsibility
to decide cases properly before it, even those
it “would gladly avoid.” Cohens v. Virginia,
19 U.S. 264, 6 Wheat. 264, 404, 5 L. Ed. 257
(1821). Our precedents have identified a narrow
exception to that rule, known as the “political
question” doctrine. See, e.g., Japan Whaling
Assn. v. American Cetacean Soc., 478 U.S. 221,
230, 106 S. Ct. 2860, 92 L. Ed. 2d 166 (1986). We
have explained that a controversy “involves a
political question . . . where there is ‘a textually
demonstrable constitutional commitment of the
issue to a coordinate political department; or a
lack of judicially discoverable and manageable
standards for resolving it.’” Nixon v. United
States, 506 U.S. 224, 228, 113 S. Ct. 732, 122 L.
Ed. 2d 1 (1993) (quoting Baker v. Carr, 369 U.S.
186, 217, 82 S.Ct. 691, 7 L. Ed. 2d 663 (1962)).
In such a case, we have held that a court lacks
the authority to decide the dispute before it.
132 S. Ct. 1421, 1427, 182 L. Ed. 2d 423 (2012); see also
Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d
663 (1962); Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698
(Pa. 1977).

8a
Appendix B
The political question doctrine should not be
invoked then unless it is clear that a court is incapable of
rendering a decision because it would otherwise be plainly
inconsistent with Marbury v. Madison’s basic assumption
that the Constitution is judicially declarable law. 5 U.S.
137, 1 Cranch 137, 2 L. Ed. 60 (1803).
B.
The touchstone in determining whether the political
question doctrine applies is whether the resolution of the
question has been textually committed to one or the other
political branches of the federal government. To glean
whether the Framers textually committed to Congress
the issue of a person’s eligibility to serve as President,
the Court turns to Article II, Section 1, clauses 2 and 3
of the United States Constitution as originally adopted,
as well as the Twelfth Amendment, 2 which set forth the
procedure by which a person was elected to the office of
President of the United States. These provisions:

2.  The Twelfth Amendment changed the Electoral College’s
voting procedure, requiring each elector to cast two ballots: one
expressly for President and the other distinctly for Vice President.
It reaffirmed Congress’s role in counting the ballots, merely revising
the procedure to be followed in case none of the candidates obtained
a majority of electoral votes. It also added the language, “But no
person constitutionally ineligible to the office of President shall
be eligible to that of Vice-President of the United States.” U.S.
CONST. amend. XII. None of these provisions evidences a textually
demonstrable constitutional commitment of the issue of Presidential
eligibility to Congress.

9a
Appendix B
1. vested in the legislatures of the several
states, not Congress, the power to “appoint,
in such Manner as the Legislature thereof
may direct, a Number of Electors, equal
to the whole Number of Senators and
Representatives to which the State may be
entitled.” 3
2. commanded the electors, once selected,
to meet in their respective states, and
vote by ballot for two persons, and then to
transmit their votes to the nation’s seat of
government.
3. commanded, upon receipt, the President of
the Senate to open the ballots and count the
votes in the presence of the members of the
Senate and the House of Representatives.
4. provide that only in the case of a tie, or the
absence of a majority, does the Constitution
allow Congress to choose the President and
Vice President.
As can be seen, the Constitution does not vest the
Electoral College with power to determine the eligibility
of a Presidential candidate since it only charges the
embers of the Electoral College to select a candidate for
President and then transmit their votes to the nation’s
“seat of government.” U.S. Const. amend. XII.
3.  U.S. Const. art. II, § 1, cl. 2.

10a
Appendix B
Likewise, Congress has no control over the process
by which the President and Vice President are normally
chosen, other than the very limited one of determining the
day on which the electors were to “give their votes.” U.S.
CONST. amend. XII. Moreover, this Constitutional design
clearly served to insulate the Presidential election process
from—not to commit it to—Congress and potential
interference. This is evident because the Constitution
also decreed that members of Congress may not serve as
presidential electors.
Comparison of the provisions regarding Presidential
eligibility with those regarding the eligibility of members
of Congress further supports this conclusion. With respect
to the latter, the Constitution provides that “[e]ach house
[of Congress] shall be the Judge of the Elections, Returns,
and Qualifications of its own Members,” including whether
they have the requisite U.S. citizenship required for
service in the house to which the person has been elected.
U.S. Const. art. I, § 5, cl. 1; see also U.S. Const. art. I, § 2,
cl. 2; U.S. Const. art. I, § 3, cl. 3. No one, then, can serve
in Congress without satisfying its internally enforced
membership rules. 4 Significantly, no Constitutional
4.  As a general rule, then, no one can serve in Congress without
satisfying the internally enforced membership rules, but even this
concept has its limits. In Powell v McCormack, 395 U.S. 486, 89
S. Ct. 1944, 23 L. Ed. 2d 491 (1969), the United States Supreme
Court rejected an argument that the case ought to be dismissed
as presenting a political question. The Court concluded, in a case
involving the refusal of the House of Representatives to seat
Adam Clayton Powell, that the decision to exclude members was
not textually committed to the House--with the exception of the
criteria identified in Article I, Section 5 relating to age, citizenship,

11a
Appendix B
provision places such power in Congress to determine
Presidential eligibility. Moreover, other than setting
forth the bare argument, the Candidate offers no further
support for the contrary proposition.
Accordingly, under Article I, Section 1, once the
electoral votes are counted and a Presidential candidate
has won a majority of the electoral votes, the Constitution
does not expressly vest any entity of the federal
government with the power to ensure that only persons
who are constitutionally eligible will exercise the vital
executive power vested in the President. Any one may
serve as President so long as he or she has won a majority
of the electoral vote, unless held in check by the law of
our Constitution as applied by the judicial branch. This
analysis shows that determination of the eligibility of
a person to serve as President has not been textually
committed to Congress.
C.
As to whether the issue is non-justiciable because it
is beyond judicial competence due to a lack of standards
to apply, the issue of American citizenship, including that
of a natural born citizen, has been decided, albeit in other
contexts, without difficulty in applying the standards. See,
e.g., Miller v. Albright, 523 U.S. 420, 423, 118 S. Ct. 1428,
140 L. Ed. 2d 575 (1998); United States v. Wong Kim Ark,
169 U.S. 649, 655, 18 S. Ct. 456, 42 L. Ed. 890 (1898).
and state residency. Since the refusal to seat Powell was based on a
determination that Powell had acted unethically prior to his election,
the Court found the exclusion not authorized by Article I and ordered
Powell’s seating.

12a
Appendix B
In Wong Kim Ark, a Chinese man born in America to
a father and mother, both of whom were Chinese citizens
domiciled in the United States, claimed that he was a
citizen by birth, not subject to the Chinese exclusion laws.
In addressing the merits of his argument, the Supreme
Court’s analysis began with an exposition of the English
common law and a survey on the cases and legal treatises
addressing the subject. Wong Kim Ark, 169 U.S. at 65558, 18 S. Ct. at 459-60. The Court then reviewed early
American authorities which, it concluded, supported the
view that American judges, federal and state, had applied
the English rule. Id. 169 U.S. at 658-66, 18 S. Ct. at 46063. The Court held:
there are none that can constrain or permit
the judiciary to refuse to give full effect to
the peremptory and explicit language of the
[F]ourteenth [A]mendment, which declares and
ordains that “all persons born or naturalized in
the United States, and subject to the jurisdiction
thereof, are citizens of the United States.”
Id. 169 U.S. at 694, 18 S. Ct. at 474.
Most recently, the Supreme Court applied standards
to find that the “Eighth Amendment prohibits certain
punishments as a categorical matter. No natural born
citizen may be denaturalized.” Hall v. Florida, 134 S. Ct.
1986, 1992, 188 L. Ed. 2d 1007 (2014). Plainly, this rule
could never be applied if the question of natural born
citizen were a non-justiciable political question.

13a
Appendix B
Because there is neither textually demonstrable
constitutional commitment entrusting the determination
of a person’s eligibility to be President to the Electoral
College or Congress nor a lack of a judicially discoverable
and manageable standards for resolving the issue, the
political question doctrine does not apply in this case. As
such, the Court will proceed to address the merits of the
claim.
D.
Article II, Section 1, clause 4 of the United States
Constitution provides:
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[.]
U.S. Const. art. II, § 1, cl. 4.
The Constitution does not define the term “natural
born citizen,” nor was it discussed during the debates at
the Constitutional Convention of 1787, and the Supreme
Court of the United States has never addressed its
meaning within the specific context of a challenge to the
eligibility of a candidate. Because of the paucity of both
constitutional history and legal precedent, the meaning
of a “natural born citizen” has been the subject of much
dispute.

14a
Appendix B
The framework for addressing who is natural
born citizen within the meaning of Article II, Section
1 centers on the circumstances of one’s birth. Here,
Objector contends that a person must be born within the
geographical boundaries of the United States to fall within
the definition and suggests that this Court interpret
Article II, Section 1 of the Constitution as requiring Jus
soli (“law of the soil”) citizenship—that is, citizenship
vested in a person based on the location of his or her birth,
regardless of the parents’ citizenship status. Conversely,
the Candidate contends that one is a natural born citizen,
regardless if born outside of the United States, where one
of his parents is a United States citizen, thereby vesting
him with citizenship at birth. This type of citizenship is
known as Jus sanguinis (“law of the blood”) citizenship
and inheres in a person based on his ancestry.
This uncertainty has led to questions of eligibility to
hold that office each time a person who runs for President
is not born on American soil or, for that matter, is born
on American soil to non-citizens. It was argued that
Republican nominee Charles Evans Hughes, who was
born in the United States to non-citizen parents, was not
a natural born citizen. Breckinridge Long, Is Mr. Charles
Evans Hughes a “Natural Born Citizen” Within the
Meaning of the Constitution?, 49 CHI. LEGAL NEWS
146 (1916). When Senator John McCain ran for President
in 2008, arguments were made that he was not a natural
born citizen because he was born outside the United States
on a U.S. military base in the Panama Canal Zone to a
U.S. citizen parent. Gabriel J. Chin, Why Senator John
McCain Cannot Be President: Eleven Months and a

15a
Appendix B
Hundred Yards Short of Citizenship, 107 MICH. L. REV.
First Impressions 1, app. A at 19-21 (2008). Governor
George Romney’s eligibility for the Presidency was also
questioned because was born in Mexico to U.S. citizen
parents. Isidor Blum, Is Gov. George Romney Eligible
to Be President?, N.Y.L.J., Oct. 16, 1967, at 1. Aside from
the “birther’s” belief that he was not born in the United
States, President Obama’s eligibility was challenged on
the basis that even if he was born in Hawaii, he was not a
“natural born citizen” because his father was not a U.S.
citizen.
Charles Gordon, then the General Counsel of
the United States Immigration and Naturalization
Service, attempted to answer this question. See Charles
Gordon, Who Can Be President of the United States:
the Unresolved Enigma, 28 MD. L. REV. 1 (1968). He
followed the United States Supreme Court’s suggestion
that because “[t]he Constitution does not, in words, say
who shall be natural-born citizens[,] [r]esort must be had
elsewhere,” namely to common law existing at the time
of the Founding Fathers to ascertain the meaning based
on reference to the nomenclature with which they were
familiar. Minor v. Happersett, 88 U.S. 162, 167, 22 L. Ed.
627 (1874) (suggesting this approach to interpretation but
ultimately not reaching the issue).
Having surveyed most of the common law in effect at
the time the Constitution was adopted, as well as other
historical, statutory, and constitutional sources, Gordon
concluded that:

16a
Appendix B
1. The reference to “natural-born” in
the presidential qualification clause must be
considered in the light of the English usage,
well known to the Framers of the Constitution.
The English common law, particularly as it had
been declared or modified by statute, accorded
full status as natural-born subjects to persons
born abroad to British subjects.
2. Although the evidence of intent is
slender, it seems likely that the natural-born
qualification was intended only to exclude
those who were not born American citizens,
but acquired citizenship by naturalization. The
Framers were well aware of the need to assure
full citizenship rights to the children born to
American citizens in foreign countries. Their
English forebears had made certain that the
rights of such children were protected, and it
is hardly likely that the Framers intended to
deal less generously with their own children.
The evidence, although not overwhelming,
unquestionably points in the direction of such
generosity.
3. This gloss of prior history and usage is
not dulled, I believe, by the Naturalization Act
of 1790 or by the fourteenth amendment. The
1790 act, enacted soon after the Constitutional
Convention, recognized such persons as naturalborn citizens. The fourteenth amendment,
adopted primarily to confirm the full citizenship

17a
Appendix B
denied to Negroes by the Dred Scott decision,
did not refer to “natural-born” citizens, did
not purport to limit or define the presidential
qualification clause of the Constitution, and
did not, in my estimation, bar a construction of
that clause to include children born abroad to
American parents.
Gordon, supra, at 31-32. Gordon admitted, though, that the
evidence for his conclusion is not overwhelming, and that
his research only “points in the direction” of his ultimate
conclusions. Id. at 32.
Recently, the Congressional Research Service (CRS)5
reached the same conclusion in its January 2016 report,6
by which it updated its 2011 report authored by Jack
Maskell, entitled “Qualifications for President and the
‘Natural Born’ Citizenship Eligibility Requirement.” Jack
M askell, Cong. Research Serv., R42097, Qualifications
For President A nd The “natural Born” Citizenship
Eligibility Requirement (2011). The original report was
apparently prompted by continuing questions regarding
5.  The Congressional Research Service (CRS) is a legislative
branch agency within the Library of Congress which works
exclusively for the United States Congress, providing policy and legal
analysis to committees and members of both the House and Senate.
6 .   J a c k M a s k e l l , C o n g . R e s e a rc h S e r v . , R 4 2 0 9 7,
Qualifications For President A nd The “natural Born” Citizenship
Eligibility Requirement(2016), available at http://www.scribd.com/
doc/295658863/Qualifications-for-President-and-the-Natural-BornCitizenship-Eligibility-Requirement-Congressional-ResearchService-R42097-2016#scribd.

18a
Appendix B
the meaning of the term “natural born citizen” arising
out of Senator McCain’s 2008 candidacy. It contains an
exhaustive analysis of the historical and legal background,
both common law and statutory, on this issue. The
summary of that report states, in relevant part:
The term “natural born” citizen is not
defined in the Constitution, and there is no
discussion of the term evident in the notes
of the Federal Convention of 1787. The use
of the phrase in the Constitution may have
derived from a suggestion in a letter from
John Jay to George Washington during the
Convention expressing concern about having
the office of Commander-in-Chief “devolve on,
any but a natural born Citizen,” as there were
fears at that time about wealthy European
aristocracy or royalty coming to America,
gaining citizenship, and then buying and
scheming their way to the presidency without
long-standing loyalty to the nation. At the time
of independence, and at the time of the framing
of the Constitution, the term “natural born”
with respect to citizenship was in use for many
years in the American colonies, and then in
the states, from British common law and legal
usage. Under the common law principle of jus
soli (law of the soil), persons born on English
soil, even of two alien parents, were “natural
born” subjects and, as noted by the Supreme
Court, this “same rule” was applicable in the
American colonies and “in the United States
afterwards, and continued to prevail under the
Constitution . . .” with respect to citizens. In

19a
Appendix B
textual constitutional analysis, it is understood
that terms used but not defined in the document
must, as explained by the Supreme Court, “be
read in light of British common law” since the
Constitution is “framed in the language of the
English common law.”
In addition to historical and textual analysis,
numerous holdings and references in federal
(and state) cases for more than a century have
clearly indicated that those born in the United
States and subject to its jurisdiction (i.e., not
born to foreign diplomats or occupying military
forces), even to alien parents, are citizens “at
birth” or “by birth,” and are “natural born,”
as opposed to “naturalized,” U.S. citizens.
There is no provision in the Constitution and
no controlling American case law to support a
contention that the citizenship of one’s parents
governs the eligibility of a native born U.S.
citizen to be President.
Although the eligibility of native born U.S.
citizens has been settled law for more than
a century, there have been legitimate legal
issues raised concerning those born outside of
the country to U.S. citizens. From historical
material and case law, it appears that the
common understanding of the term “natural
born” in England and in the American colonies
in the 1700s may have included both the strict
common law meaning as born in the territory
(jus soli), as well as the statutory laws adopted
in England since at least 1350, which included

20a
Appendix B
children born abroad to British fathers (jus
sanguinis, the law of descent).
The weight of legal and historical authority
indicates that the term “natural born” citizen
would mean a person who is entitled to U.S.
citizenship “by birth” or “at birth,” either by
being born “in” the United States and under its
jurisdiction, even those born to alien parents;
by being born abroad to U.S. citizen-parents; or
by being born in other situations meeting legal
requirements for U.S. citizenship “at birth.”
Such term, however, would not include a person
who was not a U.S. citizen by birth or at birth,
and who was thus born an “alien” required to
go through the legal process of “naturalization”
to become a U.S. citizen.
Id. at Summary (unnumbered).
Moreover, Paul Clement and Neal Katyal, both former
Solicitor Generals of the United States, arrived at the
same conclusion in a more succinct manner, determining
that a U.S. citizen at birth is a natural born citizen and
constitutionally eligible to serve as President. Paul
Clement & Neal Katyal, On the Meaning of “Natural Born
Citizen,” 128 Harv. L. Rev. F. 161 (2015). They reason, in
relevant part:7

7.  For convenience, the citations contained in footnotes were
placed in the body of the text.

21a
Appendix B
The Constitution directly addresses the
minimum qualifications necessary to serve as
President. In addition to requiring thirty-five
years of age and fourteen years of residency, the
Constitution limits the presidency to “a natural
born Citizen.” [U.S. CONST. art. II, §1, cl. 5.]
All the sources routinely used to interpret the
Constitution confirm that the phrase “natural
born Citizen” has a specific meaning: namely,
someone who was a U.S. citizen at birth with no
need to go through a naturalization proceeding
at some later time. And Congress has made
equally clear from the time of the framing of
the Constitution to the current day that, subject
to certain residency requirements on the
parents, someone born to a U.S. citizen parent
generally becomes a U.S. citizen without regard
to whether the birth takes place in Canada, the
Canal Zone, or the continental United States.
[See, e.g., 8 U.S.C. §1401(g) (2012); Immigration
and Nationality Act of 1952, Pub. L. No. 82-414,
§303, 66 Stat. 163, 236-37; Act of May 24, 1934,
Pub. L. No. 73-250, 48 Stat. 797.]
While some constitutional issues are truly
difficult, with framing-era sources either
nonexistent or contradictory, here, the relevant
materials clearly indicate that a “natural born
Citizen” means a citizen from birth with no need
to go through naturalization proceedings. The
Supreme Court has long recognized that two
particularly useful sources in understanding

22a
Appendix B
constitutional terms are British common law
[See Smith v. Alabama, 124 U.S. 465, 478, 8 S.
Ct. 564, 31 L. Ed. 508 (1888)] and enactments of
the First Congress. [See Wisconsin v. Pelican
Ins. Co., 127 U.S. 265, 297, 8 S. Ct. 1370, 32 L.
Ed. 239 (1888).] Both confirm that the original
meaning of the phrase “natural born Citizen”
includes persons born abroad who are citizens
from birth based on the citizenship of a parent.
As to the British practice, laws in force in
the 1700s recognized that children born outside
of the British Empire to subjects of the Crown
were subjects themselves and explicitly used
“natural born” to encompass such children.
[See United States v. Wong Kim Ark, 169
U.S. 649, 655-72, 18 S. Ct. 456, 42 L. Ed. 890
(1898).] These statutes provided that children
born abroad to subjects of the British Empire
were “natural-born Subjects . . . to all Intents,
Constructions, and Purposes whatsoever.” [7
Ann., c. 5, §3 (1708); see also British Nationality
Act, 1730, 4 Geo. 2, c. 21.] The Framers, of
course, would have been intimately familiar
with these statutes and the way they used
terms like “natural born,” since the statutes
were binding law in the colonies before the
Revolutionary War. They were also well
documented in Blackstone’s Commentaries [See
1 William Blackstone, Commentaries *35463], a text widely circulated and read by the
Framers and routinely invoked in interpreting
the Constitution.

23a
Appendix B
No doubt informed by this longstanding
tradition, just three years after the drafting of
the Constitution, the First Congress established
that children born abroad to U.S. citizens were
U.S. citizens at birth, and explicitly recognized
that such children were “natural born Citizens.”
The Naturalization Act of 1790, Ch. 3, 1 Stat. 103
(repealed 1795), provided that “the children of
citizens of the United States, that may be born
beyond sea, or out of the limits of the United
States, shall be considered as natural born
citizens: Provided, That the right of citizenship
shall not descend to persons whose fathers
have never been resident in the United States
. . . .” [Id. at 104 (emphasis omitted).] The actions
and understandings of the First Congress are
particularly persuasive because so many of the
Framers of the Constitution were also members
of the First Congress. That is particularly
true in this instance, as eight of the eleven
members of the committee that proposed the
natural born eligibility requirement to the
Convention served in the First Congress and
none objected to a definition of “natural born
Citizen” that included persons born abroad
to citizen parents. [See Christina S. Lohman,
Presidential Eligibility: The Meaning of the
Natural-Born Citizen Clause, 36 Gonz. L. Rev.
349, 371 (2000/01).]
The proviso in the Naturalization Act of 1790
underscores that while the concept of “natural

24a
Appendix B
born Citizen” has remained constant and
plainly includes someone who is a citizen from
birth by descent without the need to undergo
naturalization proceedings, the details of which
individuals born abroad to a citizen parent
qualify as citizens from birth have changed.
The pre-Revolution British statutes sometimes
focused on paternity such that only children
of citizen fathers were granted citizenship at
birth. [See, e.g., British Nationality Act, 1730,
4 Geo. 2, c. 21.] The Naturalization Act of 1790
expanded the class of citizens at birth to include
children born abroad of citizen mothers as long
as the father had at least been resident in the
United States at some point. But Congress
eliminated that differential treatment of citizen
mothers and fathers before any of the potential
candidates in the current presidential election
were born. Thus, in the relevant time period,
and subject to certain residency requirements,
children born abroad of a citizen parent were
citizens from the moment of birth, and thus are
“natural born Citizens.”
The original meaning of “natural born
Citizen” also comports with what we know of the
Framers’ purpose in including this language
in the Constitution. The phrase first appeared
in the draft Constitution shortly after George
Washington received a letter from John Jay, the
future first Chief Justice of the United States,
suggesting:

25a
Appendix B
[W]hether 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 expressly
that the Command in chief of the
american [sic] army shall not be given
to, nor devolve on, any but a natural
born Citizen.
[Letter from John Jay to George Washington
(July 25, 1787), in 3 T he R ecords O f T he
Federal Convention Of 1787.]
As recounted by Justice Joseph Story in
his famous Commentaries on the Constitution,
the purpose of the natural born Citizen clause
was thus to “cut[] off all chances for ambitious
foreigners, who might otherwise be intriguing
for the office; and interpose[] a barrier
against those corrupt interferences of foreign
governments in executive elections.” [3 Joseph
Story, Commentaries On T he Constitution
Of The United States §1473, at 333 (1833).]
The Framers did not fear such machinations
from those who were U.S. citizens from birth
just because of the happenstance of a foreign
birthplace. Indeed, John Jay’s own children
were born abroad while he served on diplomatic
assignments, and it would be absurd to
conclude that Jay proposed to exclude his own
children, as foreigners of dubious loyalty, from

26a
Appendix B
presidential eligibility. [See Michael Nelson,
Constitutional Qualifications for President,
17 Presidential Stud. Q. 383, 396 (1987).]
While the field of candidates for the next
presidential election is still taking shape, at
least one potential candidate, Senator Ted
Cruz, was born in a Canadian hospital to a U.S.
citizen mother. [See Monica Langley, Ted Cruz,
Invoking Reagan, Angers GOP Colleagues But
Wins Fans Elsewhere, Wall St. J. (Apr. 18,
2014, 11:36 PM).] Despite the happenstance of
a birth across the border, there is no question
that Senator Cruz has been a citizen from
birth and is thus a “natural born Citizen”
within the meaning of the Constitution. Indeed,
because his father had also been resident in
the United States, Senator Cruz would have
been a “natural born Citizen” even under the
Naturalization Act of 1790.
****
There are plenty of serious issues to debate
in the upcoming presidential election cycle. The
less time spent dealing with specious objections
to candidate eligibility, the better. Fortunately,
the Constitution is refreshingly clear on these
eligibility issues. To serve, an individual must be
at least thirty-five years old and a “natural born
Citizen.” Thirty-four and a half is not enough
and, for better or worse, a naturalized citizen

27a
Appendix B
cannot serve. But as Congress has recognized
since the Founding, a person born abroad to a
U.S. citizen parent is generally a U.S. citizen
from birth with no need for naturalization.
And the phrase “natural born Citizen” in the
Constitution encompasses all such citizens from
birth. Thus, an individual born to a U.S. citizen
parent--whether in California or Canada or the
Canal Zone--is a U.S. citizen from birth and is
fully eligible to serve as President if the people
so choose.
Id. at 161-64.
Others have made the case that to be a natural born
citizen under Article II, Section 1, one must be born in
the United States, except in certain instances. Mary
McManamon, Professor of Law at Widener University
School of Law, criticized the scholarship of those cited
above and many more, citing provisions of English common
law, “statements by early American jurists,” and selected
passages from Blackstone, for the proposition that in
the eyes of the Framers, a presidential candidate must
be born in the United States. Mary McManamon, The
Natural Born Citizen Clause as Originally Understood,
64 Cath. U. L. Rev. 317, 343 (2015). She concludes that
aside from children born to U.S. ambassadors or soldiers
in hostile armies, all natural-born citizens must be born
in the United States. Undoubtedly, this is a minority view
among legal scholars.

28a
Appendix B
Having extensively reviewed all articles cited in
this opinion, as well as many others, this Court holds,
consistent with the common law precedent and statutory
history, that a “natural born citizen” includes any person
who is a United States citizen from birth.
Accordingly, because he was a citizen of the United
States from birth, Ted Cruz is eligible to serve as
President of the United States, and the objection filed by
Carmen Elliott to the Nomination Petition of Ted Cruz
is denied.
/s/
DAN PELLEGRINI, Senior Judge

29a
A OF THE
APPENDIXAppendix
C — ORDER
COMMONWEALTH COURT OF PENNSYLVANIA,
ENTERED MARCH 10, 2016
IN THE COMMONWEALTH
COURT OF PENNSYLVANIA
No. 77 M.D. 2016
CARMON ELLIOTT,
Petitioner,
v.
TED CRUZ,
Respondent.
ORDER
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 President of the United States
is denied. The Secretary of the Commonwealth is directed
to certify the name of Ted Cruz to the proper 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.
/s/
DAN PELLEGRINI, Senior Judge