Delph Legislation Addresses Ballot Eligibility For Presidential Candidates

Sen. Mike Delph has introduced SB 114, which addresses a big hole in Indiana election law discovered during the 2008 presidential election. Current Indiana clearly requires the Indiana Election Division to deny ballot access to any presidential candidate who fails to meet the constitutional eligibility requirements for holding that office; however, it makes no provision for requiring candidates to furnish any evidence with their declaration of candidacy to indicate whether they are eligible to hold the office. Article II, Section 1 of the U.S. Constitution requires a person to be a natural born citizen, at least 35 years of age and have resided within the United States for at least 14 years in order to be eligible to be president. Under Delph's legislation, no major party candidate will be eligible for the Indiana presidential primary unless they file a declaration of candidacy attesting that he or she meets the constitutional eligibility requirements and furnish the state election's division with a certified copy of the candidate's birth certificate and any other evidence the Commission may require to establish the candidate satisfies the constitutional eligibility requirements.

The 2008 election presented an unprecedented situation where the candidates nominated by both major parties for president had questions raised by citizens about their eligibility, which resulted in dozens of lawsuits being filed across the country. Sen. John McCain's birth in Panama where his father was serving his country in the Navy led to lawsuits being filed against his candidacy, while questions about the birthplace of Barack Obama, resulted in even more lawsuits being filed challengin his eligibility. All of the lawsuits were brought by citizens or members of the military, and all were dismissed for lack of standing without deciding the cases on the merits. Sen. McCain sought to reassure voters by having his colleagues in the Senate pass a non-binding resolution finding that the term "natural born citizen" extended to the children of U.S. citizens born abroad while in service to their country. Obama furnished to Factcheck.org  what was purported to be a certified copy of his birth certificate, although questions lingered about his natural born status because his father was not a U.S. citizen and persistent Internet rumors that he was actually born in Kenya and not Hawaii as he claimed.

Neither McCain nor Obama were required to furnish any election authority with any document such as a birth certificate to establish their eligibility to gain access to a ballot. After McCain was nominated at the Republican National Convention, Republican officials filed with the Elections Division a Certificate of Nomination that attested both he and his Vice Presidential candidate, Sarah Palin, met the eligibility requirements set out in the U.S. Constitution. The certificate of nomination filed by Democratic Party officials for Obama and his running mate, Joe Biden, contained no similar attestation. Sen. Delph's legislation will require the certificate of nominations for the major party and third party candidates to include an attestation of eligibility, as well as a certified copy of their birth certificate or such other documentation as may be required by the Elections Division. Candidates who previously filed the documentation for the primary election will not be required to resubmit the evidence of their eligibility.

By way of disclosure, I suggested this legislation to Sen. Delph, who graciously agreed to sponsor it. It should be made clear SB 114 does not define the term "natural born citizen", a term that appears only once in the U.S. Constitution in the presidential eligibility clause. The U.S. Supreme Court has never directly addressed the meaning of the term. Some argue it includes all persons born on U.S. soil, while others contend it includes only children born to U.S. citizens. In the case of McCain, many legal scholars believe it includes children born abroad to U.S. citizens in service to their country. SB 114 will provide evidence with the candidate's filing to at least satisfy the age of the candidate, his or her place of birth and the identity of his or her parents. From that basic information, the Elections Commission at least has evidence with a candidate's filing for determining their eligibility in the event it is contested, or for determining whether more information is needed from the candidate to establish their eligibility.

Critics will no doubt poke fun at SB 114 and label Delph and those who support it as "birthers." To them I say it is no more absurd than the documentary proof required under state law for persons seeking a driver's license, or requiring all registered voters to present a valid picture ID in order to cast a vote in person at an election. And it certainly is no more burdensome than evidence required of ordinary citizens in any number of transactions. As an immigration lawyer, my clients who wish to sponsor family members for an immigrant benefit are required to produce a certified copy of their birth certificates in order to prove their eligibility to sponsor them for an immigration benefit. Surely we can require such basic proof from any person who would seek to hold the most powerful elected office in this country. If Indiana and other states had this requirement in 2008, the doubts about the candidate's eligibility could have been dispelled in large part. The persistent rumors and doubts about Obama's eligibility has further undermined public confidence in his presidency following his election, and he has made no effort to assuage doubters by opening up his Hawaii birth records. State laws generally prohibit persons from gaining access to another person's birth record. News reports indicate legislators in at least four other states, including Arizona, Georgia, Pennsylvania and Texas plan to introduce legislation similar to SB 114 in their state legislatures during their upcoming legislative sessions.