Birther Suit Against Ted Cruz Tossed On A Technicality – Eligibility Still An Issue

A variety of lawsuits challenging Canadian-born Senator Raphael “Ted” Cruz (R-Texas) and his eligibility to run for the presidency popped up all over the country starting in November 2015. A New York appeals court just tossed one suit that the lower court previously tossed on a technicality.

The court only dismissed the suit challenging Sen. Cruz’s request to be added to the ballot because the plaintiffs filed three weeks late, according to PoliticusUSA. Because the judges didn’t rule on the issue or even look at immigration law, the larger constitutional question of whether Sen. Cruz is eligible to be on the New York ballot or run for president or not is still unanswered.

Cruz’s Own Constitutional Crisis

Lawyers Roger Bernstein and Judith Hancock, representing New York residents Barry Korman and William Gallo, filed the initial birther lawsuit to keep Sen. Cruz off the April 19 New York primary ballot, but it was thrown out because the plaintiffs filed their suit late.

The lawyers took the case to the New York appeals court, hoping the five judge panel would overlook the late filing technicality, and instead rule on the more important issue of eligibility. Unfortunately, the judges refused to hear the merits of the case, and instead sided with Sen. Cruz’s lawyers. They noted that the lower court was right to dismiss the suit because of the late filing.

Any resident can challenge a candidate’s petition to be added to the New York ballot, but they must do so within three days from the date on which the candidate filed the official request. In this case, Sen. Cruz filed his official request to be added, and the plaintiffs filed their challenge 22 days later – 19 days after the cutoff.

Senator Ted Cruz Immigration Law Canadian Us Citizen
Ted Cruz Held Dual Citizenship By Mike Licht via Flickr/CC by 2.0

This is just one of a number of birther lawsuits filed against Sen. Cruz since he’s announced his candidacy for president.

Back in November 2015, Representative Allen Grayson (D-Fla.) filed a suit against the senator, alleging that Sen. Cruz does not meet the criteria of a “natural born citizen” because both his parents weren’t U.S. citizens when he was born in Calgary, Canada in December of 1970.

Immigration Law In A Nutshell

Although the senator held dual citizenship with the U.S and Canada until he relinquished his Canadian citizenship in 2014 as a result of the birther issue,  according to his spokesperson, the way he became a U.S. citizen is in question. Sen. Cruz’s mother would likely have had to file paperwork to claim the young Cruz’s U.S. citizenship, having been issued a Canadian birth certificate. This sole physical act taken on his behalf automatically precludes the senator from being a natural born U.S. citizen.

According to the Immigration and Naturalization Act, regulation 301(g) states a child born outside of the U.S. to one U.S. citizen and one alien parent must have been born to a U.S. citizen parent that resided in the U.S. for 10 years prior to the birth.

Sen. Cruz’s mother did not. Instead, she resided in Canada with Rafael Cruz Sr., Sen. Cruz’s father. He had fled Cuba and was granted Canadian refugee status.

Ted-Cruz-Birth-Certificate Immigration law says Cruz Not Naturalized Citizen
Ted Cruz Birth Certificate Screenshot Via Dallas News

Even under the more lenient rules, which went into effect in 2001, Sen. Cruz’s mother would have had to file paperwork to apply for the senator’s citizenship as a naturalized citizen, which is not the same as a natural born citizen.

Other Birther Issues

Some use the birther argument to say Senator John McCain (R-Az.) isn’t natural born, but the difference is that Sen. McCain was born in the Panama Canal Zone, which immigration law says is U.S. soil. Sen. Cruz was born in Canada – not U.S. soil – and issued a Canadian birth certificate. The difference is obvious.

Whether you agree Sen. Cruz is eligible to run for president or not, because the New York court didn’t touch the immigration law, or the eligibility issue, they left that door open for another court to tackle it, such as Texas or Pennsylvania, where two suits are still open and there’s still a chance that the courts could rule the senator ineligible.

It’s not over yet, and we don’t expect it to be any time soon, especially with Donald Trump and Rep. Grayson’s promises to file suit should Sen. Cruz become the Republican nominee to run for president.

Featured Image: Ted Cruz By Gage Skidmore Via Flickr/CC By SA-2.0, Screenshot Via Dallas News