Sanders, Cruz Candidacies in Spotlight in Concord Tuesday

Nov 23, 2015

Meetings of New Hampshire’s Ballot Law Commission don’t often get much attention. But this week will be different. A handful of challenges to prominent candidates in the 2016 presidential primary will come before the commission, which has been asked to decide if Bernie Sanders and Ted Cruz can legally appear on the New Hampshire primary ballot.

NHPR’s Senior Editor for Politics and Policy Dan Barrick spoke with Morning Edition host Rick Ganley today to lay out what to expect at Tuesday's meeting.

RG: First of all: I take it most people don’t necessarily know such as thing as the Ballot Law Commission even exists.

DB: Yes, this is not exactly a high-profile group, but it plays a pretty important role in New Hampshire elections process. Its job is pretty straight-forward: to weigh in on election disputes in the state, stuff like recounts, whether a candidate is qualified to appear on the ballot, even what name a candidate can use on the ballot. So, typically, pretty dry stuff.

The commission’s five members are appointed by the speaker of the House, the senate president and the governor.  Members tend to include retired elected officials, connected political types, lawyers – at least one person with experience in election law. And, by law, it’s intended to be a fairly bipartisan group – with at least two members from each political party at any one time.

So what’s it like when this group gets together – what kind of authority do they actually have?

Well, as the current commission chairman Brad Cook told me, we’re not exactly a court, but we sort of act like a court. The commission’s job is simply to interpret state election laws as they apply in the case at hand. As part of that process, each side gets to get up before the commission, present evidence, call witnesses, make their case for why they should be on the ballot, or why someone else shouldn’t, or why some ballots that were tossed out during a recount should be reconsidered, that kind of thing.

They can also determine – and here’s one tricky thing – they can determine whether someone bringing a case before them has standing to do so – whether that person has a legitimate interest in the election at hand to bring a complaint to the commission. And there’s no set checklist for what gives someone standing, which means it’s up to the commissioners to decide. And that could be a factor this morning.

Yes, the commission has a full agenda today – digging into this insignificant election called the NH Primary.

Exactly. The two main cases center on Bernie Sanders and Ted Cruz. With Sanders, it’s a challenge to his filing as a Democrat on the New Hampshire Presidential Primary ballot. State law requires a candidate for president to swear that he or she is a registered member of whatever political party’s primary they running in. Sanders, of course, is a well-known independent; he’s rejected the nomination of the Democratic Party in Vermont in the past – but he caucuses with Democrats in the U.S. Senate, and this year, he says he’s running as a true-blue Democrat. Officials with the state and national parties have vouched for his allegiance to the party and Sanders’ lawyers say it’s a settled deal.

But….that hasn’t stopped a fellow named Andy Martin, an Illinois man who’s also running for president, from challenging Sanders’ party standing. Now, Martin is a Republican – and he also has a long history of filing protests like this, you could say he’s a bit of a gadfly  – he was one of the people to sue over access to President Obama’s original birth certificate several years ago.

Ah, yes. I remember that.

Yup. And this is where that question of “standing” could come in – since Martin is running as a Republican, does he have standing – does he have a legitimate interest – in what goes on in the Democratic primary ballot.

Ok. And the Ted Cruz case.

Yes, the question here is whether Cruz is qualified to run for president at all. So…it’s a fact that Cruz was born in Canada, to an American mother and a father born in Cuba. And while the U.S. Constitution says to be president, you have to be a “natural born citizen,” Cruz and his campaign say he’s a citizen, no matter where he was born, by virtue of his mother’s American citizenship – and that’s an opinion many legal scholars share.

So, case closed.

Not exactly. Children born to American citizens are considered citizens themselves. But in terms of what that means for eligibly to serve as president, this “natural born” qualifier, this question isn’t exactly settled. Does natural born citizen mean you have had American citizenship since birth – which is Cruz’s argument -- or does it mean something stricter, that you actually have to have been born on American soil? The Supreme Court has never definitely answered that.

Cook, the Ballot Law Commission chairman, indicated to me that commissioners might just avoid this question altogether, simply because one of the factors they weigh when taking up cases is whether it’s the best time for them to hear a complaint. It’s a long way between today and the White House for Cruz, and is a statutory commission in the state of New Hampshire the right place to determine whether or not someone should be allowed to run for president of the United States based on where his or her mother gave birth to him? So that’s a factor on the table today as well.

When can we expect answers on these questions?

Typically, the Commission hands down a decision the same day the case is heard, though a formal written opinion may come a bit later.

And what they say goes?

Generally speaking, when it comes to ballot access, yes. But there’s nothing to prevent someone from filing an appeal whenever they want.

Thanks Dan.

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