If Donald Trump really wants to challenge Ted Cruz’s citizenship in court, a past ruling on Barack Obama’s citizenship might be his best chance to make it past the courthouse door.
Trump has repeatedly raised Cruz’s Canadian birth in the context of some potential legal challenge—he initially said he was concerned that Democrats would get the courts to block Cruz from taking office, if he’s the nominee. And he “suggested” that Cruz should proactively seek a ruling on his eligibility. (Easier said than done, according to legal experts.)
At least two voters have already filed lawsuits claiming that Cruz isn’t eligible for the presidency because he was born in Canada. Most legal experts disagree. They say those lawsuits will almost certainly be dismissed, and would be dismissed even if Cruz’s argument were substantially weaker.
Even though the Constitution is vague about what constitutes a “natural-born citizen,” it’s almost impossible for an average voter to pursue a lawsuit that would allow the courts to interpret that phrase. Hardly anyone—potentially, literally no one—has the legal standing to bring such a challenge against a candidate.
To bring a lawsuit in federal court, you have to show you suffered a real injury—and having the option to vote for someone you believe to be ineligible is not a real injury.
The only way the courts would likely get involved in Cruz’s case, several legal experts said, would be for a state official somewhere to keep Cruz off the ballot in that state, and for Cruz to sue that official. He certainly would have an injury to point to, and thus would have standing.
“I think in federal court, it would be really real hard for someone other than Cruz to have standing,” said Jonathan Adler, a law professor at Case Western Reserve University.
But Derek Muller, a law professor at Pepperdine University, sees another, albeit even more remote possibility: Trump, or another of Cruz’s GOP rivals, could sue.
Trump would almost certainly lose, Muller said, but he might at least have the standing to bring a legal challenge and actually get the issue into the courts.
There’s a thin precedent from the challenges to President Obama’s eligibility—specifically, the suit filed by Alan Keyes, who ran for president in 2008 as the nominee of the American Independent Party. Keyes was one of the plaintiffs in one of the unsuccessful challenges to Obama’s citizenship, but the courts treated him somewhat differently because he was, at least technically, a rival candidate.
An opposing candidate might be able to argue that he or she lost votes—an injury—to someone who wasn’t eligible to appear on the ballot.
“The notion that you are on the ballot and there are other folks on the ballot who should not be there … that could be enough” to establish standing, Muller said. “It’s not wholly speculative that when you drop a candidate off the ballot, some of them are going to come toward you.”
In the Obama case, a federal district court said political opponents like Keyes were “the only category of plaintiffs who potentially satisfy the injury-in-fact requirement,” but that Keyes should have filed his suit before Obama took office, when there was something the courts could do.
Again, Muller said, nothing suggests that the courts would agree with Trump about Cruz’s actual eligibility for office. And he would not necessarily have the standing to bring a lawsuit.
But if the goal is to keep a political controversy alive and legitimize it with the appearance of an open legal question, Trump’s best bets might be either to file a lawsuit himself, or find a supportive state official willing to boot Cruz from the ballot. He might have a slightly better chance than anyone else to get the courts involved at all—but even those odds are still pretty terrible.
“It’s very unlikely. There are so many other stages in the political process where this can be resolved that I think the courts would be extremely reluctant to intervene,” Muller said.