Presidential Candidates Face Challenges to Eligibility

In an already strange election year, both major party candidates have faced challenges to their eligibility to run for president from members of their own party! The problem lies with Article II, Section 1 of the Constitution, which states that only a "natural born citizen" may hold the office of president of the United States. There have been suits filed against both John McCain and Barack Obama questioning their eligibility to run for president. The bizarre twist is that both suits have been filed by litigants who claim to be members of the same party as the candidate they seek to disqualify!

Challenge to McCain Eligibility Fails

In Sen. McCain's case, it is undisputed that he was born in the Panama Canal Zone to American parents. Republican Fred Hollander brought a suit against John McCain alleging that to be a "natural born citizen" as required by the Constitution, a person must have been born within the United States. Since the Constitution does not define "natural born citizen" or use the term in any other context, the question is open to debate. Interestingly enough, if Mr. Hollander's argument was correct, FDR (who was born in Canada to American parents) would not have been eligible to be president either.

Sen. McCain is safe for now. The suit against him was dismissed based upon lack of standing. Hollander v. McCain, 566 F.Supp.2d 63 (D. N.H. 2008). Standing is a legal concept which says that in order to bring a lawsuit, you must have been personally harmed in some way. While a rival party or candidate would have standing to challenge an ineligible candidate, a voter from the same party does not have standing because his interest is no different than any one of millions of other voters.

Obama Challenge Pending

In Sen. Obama's case, there are allegations of intrigue and obscure immigration law interpretations. Barack Obama was born to an 18 year old American mother and a Kenyan father. If he was born in the United States, then he would clearly have been an American citizen at birth. The Obama campaign has posted a copy of a birth certificate demonstrating that he was born in Hawaii. However, Philip Berg, a one-time Democratic candidate for Senator and Governor of Pennsylvania, has alleged a conspiracy. Mr. Berg has filed a lawsuit in U.S. District Court alleging that Sen. Obama's mother was not able to fly back to the United States in time for his birth and that he was really born in Kenya. He claims that the birth certificate posted by the campaign is a fake and has demanded that Sen. Obama produce the original. Berg v. Obama, No. 08-CV-4083 (E.D. Pa.).

The Kenya vs. Hawaii distinction is important because under federal law at the time, a child born to an American parent in a another country could only become a citizen as a matter of right if the American parent had lived in the United States for at least five years after the age of fourteen. In other words, in order for a child born overseas with only one American parent to automatically become a citizen, the American parent would have to be at least nineteen. Since Sen. Obama's mother was only eightteen (at least according to the lawsuit), he would not qualify.

The case gets even stranger based on the subsequent moves of Sen. Obama's globe-trotting mother. After Sen. Obama's birth, she divorced and remarried an Indonesian national. They resided in Indonesia where young Barack attended school. According to the Complaint, Indonesia did not allow foreigners to attend school at this time, so that Barack must have been adopted or acknowledged by his Indonesian step-father such that he became an Indonesian national and forfeited his American citizenship. The Plaintiff claims to have school records listing Barack Obama as an Indonesian citizen. Of course, it is also possible that school officials allowed him to attend school and listed him as an Indonesian without regard to whether he had become a citizen. The Complaint also alleges that Sen. Obama used an Indonesian passport to travel to Pakistan, India and Indonesia in 1981. However, this argument is based largely on the conjecture that Pakistan and Indonesia would have been more likely to allow him to travel to those countries if he had a passport from a Muslim country as opposed to an American passport. As a result, it is a pretty weak argument.

Sen. Obama and the Democratic National Committee have filed a motion to dismiss the case against Sen. Obama on the same standing grounds that were successfully urged by Sen. McCain. The case will likely have the same outcome. As a result, unless Sen. McCain or the Republican Party tries to challenge Sen. Obama's eligibility to run for president, the issue will likely die there.