The bar exam is a week away, and what is my mind on? Gloating that I was probably right about legally challenging John McCain’s eligibility for the Presidency.
Around this time last year I was completely obsessed by the idea that John McCain’s eligibility for the Presidency could be legally challenged based on his birth outside of the United States’ limits but within its jurisdiction. As many noted at the time, this raised a serious legal question about whether he is in fact a natural born citizen, a Constitutional prerequisite for being President. I wrote about it on another blog. But legal authorities who were quoted in support of the proposition that McCain’s eligibility was in doubt would always add that it was doubtful that there was any real way to legally challenge his eligibility, because of justiciability issues. The main concern that they cited was standing: what individual would be injured by a wrongful Presidency? Gabriel Chin, who wrote what was probably the best argument for McCain’s ineligibility, suggested that it might be the vice president alone who would have standing. Federal lawsuits filed by various individuals were dismissed just for that reason - lack of standing.
I argued at the time that while the federal courts were right to dismiss the cases, the state courts provided a plausible forum for challenges. The reason is that while a Constitutional plan exists for determining the winner of the Presidential election based on the states’ winners, each state is responsible internally for its election rules and procedures, including for federal elections. And many states, including several red states with significant electoral college representation, permitted challenges to the nomination and/or election of candidates who were not eligible for the office. Some of the states were very strict in terms of who had standing to file such a challenge, while others were more generous.
So my idea was to organize legal challenges to McCain’s nomination or election in various states. It seemed like a pretty reasonable approach, with a plausible chance of success. I reasoned that the state courts would have jurisdiction over the question because it was essentially a state election question. Given that the eligibility issue was an important federal ingredient, the case might be removed (or appealed) to the federal system, but crucially the standing problem would be bypassed. And we might have been treated to the sweet, sweet irony of the same court that appointed George W. Bush in 2000 having to resolve the issue of McCain’s eligibility in 2008. (This scenario would make an excellent exam question for a Federal Courts class, by the way.)
The legal challenge went nowhere. Almost nobody was interested, for different specious reasons, and those who were somewhat sympathetic were not in a position to help. But here’s the gloating part: when I tried to organize people on Facebook, in the main Obama group, I was treated to an extraordinary level of idiotic vitriol. To the extent that there was any substance to what people were saying, it was that the legal scholars who believed that McCain’s eligibility is a real issue were mistaken, and that I was mistaken about the procedural approach that I was promoting.
But then this came along: An article by Dan Tokaji, a leading election law expert, suggesting essentially what I had been suggesting.
And that’s why I gloat. I love being right.
Postscript:
I was reminded of this issue while browsing Stuff White People Do, an excellent blog about race I just discovered, whose title parodies Stuff White People Like, a rather stupid blog about race.