Having read through the bulk of the Illinois Board of Elections Hearing proceedings on the matter of
Joyce v. Cruz, 16SOEBGP526, I can share the following summary.
(As an aside, there are approximately 20 odd challenges to Mr. Cruz’s eligibility in various stages of process throughout several states. Most of which have been brought by other ‘minor’ candidates (i.e., relatively unknown people that have paid the fees and met the requirements to secure a position on a primary ballot). None of the challenges have been brought by any of the ‘major’ candidates in the race.)
BackgroundThe Objector, Mr. Joyce (Pro Se), filed a “Verified Objector’s Petition” on January 6, 2106, seeking to have the BoE remove Mr. Cruz’s name from the March 15, 2016 Illinois presidential primary ballot, based on the contention that Mr. Cruz is not a “natural born Citizen” and is hence not eligible to hold the Office.
Mr. Cruz, represented by Ms. Langenstein, responded with a Motion to Dismiss, and subsequently a "Memorandum of Law," and Mr. Joyce also filed another document in support of his initial Objection. (The details of the document filling schedule can be found in the beginning pages of the PDF file I linked above.)
Motion to DismissWhat is significant about Mr. Cruz’s initial response to the Objector’s petition is two-fold:
1. The fact that he initially countered the Objection with a Motion to Dismiss, while understandable, is a bit of a disappointment to the people that have been hoping that Mr. Cruz will let this process ‘play out’ and get a decision. Note, that there are two divisions in this camp: A. those that believe Mr. Cruz to be eligible, and B. those that believe Mr. Cruz is
not eligible; both claim to “just want the matter to put to rest.”
2. The fact that the Board of Elections
rejected Mr. Cruz’s three part Motion to Dismiss on all three points.
(Many of you will recall the mounting frustration that built 7-8 years ago with respect to the numerous challenges to Obama’s eligibility. With the exception of a small handful, every challenge was successfully dismissed prior to adjudication (with the vast majority of the dismissals being for a lack of Standing on the part of the challenger). A constant refrain was along the lines of “If he thinks/believes that he is eligible, then why not let it get into a court and secure a favorable judgement? Why stop this proceeding on a technicality?” I think that many people are hoping that Mr. Cruz does not attempt to meet any
court challenges with similar Motions to Dismiss.)
In summary, Candidate Cruz offered three reasons supporting his Motion to Dismiss:
1. Dealing with the matters raised in the Objection is beyond the state Board of Elections’ Scope of Inquiry.
2. The Objector does not fully state the nature of the Objection.
3. The question of whether a Candidate for POTUS is eligible to hold the Office is beyond the scope of the Election board.
The board rejected all three elements of the Motion to Dismiss. Both “sides” can not help but observe, that the BoE simply manufactured their ‘denials’ out of whole cloth (without offering any substantive underlying reasoning or citation of case law, or other sources of precedent). I am sure that this was disappointing to Mr. Cruz and his campaign, if only for the fact that he will have to pay non-trivial attorney fees to represent himself in each of these challenges that proceed to a hearing.
(Again, what follows is my brief summary of what I was able to glean from a rather compressed study of the proceedings of the Hearing Board. Anyone with a serious interest in the matter is encouraging to wade into the document on their own, to avail themselves of a full understanding of each document and its content.)
The Objection (and Supplemental Filing)Mr. Joyce’s Objection can be summarized as:
A. Natural Born citizenship, as denoted in the Constitution as a requirement for the POTUS Office, is a construct of Natural Law. It is
inherited by natural born Citizens solely (and
naturally) by the circumstances of birth, and no Positive (i.e., manmade) Law constructs are required, nor operative.
B. All other citizenship is acquired through the intervention of government, as constituted in the various
naturalization acts of Congress throughout history.
C. Multiple citations of
U.S. v. Wong Kim Ark regarding the statutory differences between
naturalized citizenship and natural born citizenship.
(I am leaving out the citations for two reasons: 1. sake of brevity, and 2. this isn’t intended to be an advocacy piece for either side of the issue. Most of all the case law cited in this hearing has been covered in the multi-page “Coulter” thread that anyone can reference for a fairly substantive discussions of the issues.)
D. A citation from
Rogers v. Bellei regarding the fact that prior to the 1934 version of the INA, a person with Mr. Cruz’s birth circumstances would have no claim to US citizenship (a form of my Winston Churchill example, described elsewhere).
E. A somewhat drawn out description of the
legal fiction (this is a term of art) that was created in the 1790 INA and altered in the 1795 version.
(My Opinion on Mr. Joyce’s Objection: he did a fairly good job at bringing some of the case law precedents to the fore, even if many sections of his document were a bit tortured in their presentation. His Objection would have been more relevant for adjudication of the issue in a court of law, not a state Board of Elections hearing. I doubt that much of his content was consumed or understood by the hearing officer.)
Ms. Langenstein’s (Mr. Cruz’s) Submitted “Memorandum of Law”This document is noticeably lean on citations of case law (no real surprise). It is actually built upon many of the discussion topics that have been presented in the recent popular media publications that have been flying around since the topic was raised (beyond the academic discussions that started back in 2008).
Items that are presented in Langenstein’s memorandum include:
A. The non-binding Senate Resultion 511 that was drafted in support of John McCain’s eligibility.
B. The HLR article by Kaytal & Clement.
C. A lengthy argument that natural born Citizenship remains undefined.
D. A discussion of George Romney’s eligibility issues.
E. The 1790 INA as a source of a “definition” (in contrast to the counter position of the term remaining undefined).
F. The Congressional Research Service publication from 2011 on “Natural Born Citizenship.”
G. An internally conflicting citation from
Zivotofsky v. Kerry regarding a CRBA’s (Consular Report of Birth Abroad) association with naturalization.
H. They also attempt to create numerous equivalencies and “truths” out of thin air (i.e., with no case law citations), and mis-reference multiple parts of the Constitution.
(My opinion on the Memorandum is that it is pretty much what one would expect. It relies almost exclusively on non-binding and non-precedential opinions, most of which anyone following this topic has already seen discussed in numerous places. It is fairly lengthy and undoubtably was not well understood by the hearing board. It served its purpose, it presented enough discussion surrounding a host of issues to create an air of doubt regarding the content of the Objection. This will likely be used a template for defense of eligibility in any other hearings, outside the realm of a court room. IF the issue ever proceeds to court, its content will not be useful as an eligibility defense in its present form.)
As Bigun mentioned above, neither he nor I, wish to re-engage in a re-hash of this topic, especially in this thread. The
"Coulter" thread is a good place to get caught up on what has previously been discussed. I understand that this summary, while an objective outlining of the main points raised in the hearing materials, paints a less than flattering picture of Mr. Cruz's main source of defense. All that I can say, is that "it is, what it is." If there are any points of discussion that I failed to bring into the summary, feel free to present them!
There are a lot more interesting documents in the PDF file for anyone that has a keen interest in this topic, including the material presentations and dispositions of 3 other Objections.
