Reply Brief for 3rd Dept. 2016 03 16 - final filed for petitioners-appellants.pdf

8/19/2019 Reply Brief for 3rd Dept. 2016 03 16 - final filed for petitioners-appellants.pdf

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To be Argued by:R OGER J. BERNSTEIN

(Time Requested: 20 Minutes)

522647

New York Supreme CourtAppellate Division—Third Department

BARRY KORMAN and WILLIAM GALLO,

Petitioners-Appellants,

– against –

NEW YORK STATE BOARD OF ELECTIONS

and RAFAEL EDWARD (“TED”) CRUZ,

Respondents-Respondents.

For an Order directing the New York State Board of Elections not to designateRafael Edward (“Ted”) Cruz as a candidate for President of the United States in

the Republican Presidential Primary Election to be held on April 19, 2016.

REPLY BRIEF FOR PETITIONERS-APPELLANTS

Of Counsel:JUDITH L. HANCOCK , ESQ.

R OGER J. BERNSTEIN, ESQ.535 Fifth Avenue, 35th Floor

New York, New York 10017

(212) 227-8383

– and –

EISNER & ASSOCIATES, P.C.113 University Place, 8th Floor

New York, New York 10003

(212) 473-8700

Attorneys for Petitioners-Appellants

Albany County Clerk’s Index No. 707/16


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TABLE OF CONTENTS

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. NEITHER THE CASE LAW NOR THE ELECTION LAW CALLS FOR

REJECTING A PETITION ON THE BASIS OF OBJECTIONS THAT

THE BOARD OF ELECTIONS CANNOT ADJUDICATE. . . . . . . . . . . . . . . . 1

II. THE POLITICAL QUESTION DOCTRINE DOES NOT APPLY . . . . . . . . . . . 5

III. CRUZ HAS FAILED TO DEMONSTRATE THAT HEMEETS THE ARTICLE II “NATURAL BORN CITIZEN”

QUALIFICATION FOR THE PRESIDENCY. . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. The American Common Law Definition of “Natural Born Citizen”

in 1787 Did Not Encompass the British Parliament’s Naturalization

Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B. The Framers’ Intent in 1787 Cannot Be Ascertained From a 1790

Statute. Moreover, with Framer James Madison’s Active Leadership, the

1790 Statute Was Repealed in 1795 and Replaced by a StatuteWhich Deleted the Very Text That Cruz Cites in the 1790 Statute. . . . . 11

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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TABLE OF AUTHORITIES

Cases: Page No.

Baker v. Carr, 369 U.S. 186 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Bowhall v. Obama, 2010 WL 4932747 (M.D. Ala. Nov. 30, 2010) . . . . . . . . . . . . . . . . . . . . . . 7

Cozzolino v. Columbia County Bd. of Elections,

218 A.D.2d 921 (3d Dept.), lv. denied, 86 N.Y.2d 704 (1995) . . . . . . . . . . . . . . . . . . . . 2

Elliott v. Cruz,

2016 WL ___ (Comm. Ct. Pa. March 10, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Grinols v. Electoral Coll., 2013 WL 2294885 (E.D. Cal. May 23, 2013),

aff’d , 622 Fed. Appx. 624 (9th Cir 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Gross v. Hoblock, 6 A.D.3d 933 (3d Dept. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Kerr v. Hickenlooper, 744 F.3d 1156 (10th Cir. 2014),

vacated on other grounds, 135 S.Ct. 2927 (June 30, 2015) . . . . . . . . . . . . . . . . . . . . . . 7

Levy’s Lessee v. McCartee, 31 U.S. 102 (1832) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Lewis v. State, 68 A.D.3d 1513 (3d Dept. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Lindsay v. Bowen, 750 F.3d 1061 (9th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Mackay v. Johnson , 20 Misc.2d 1136[A], 2008 WL 3865214

(Sup. Ct. Nassau Cty. 2008), aff’d, 54 A.D.3d 428 (2d Dept. 2008) . . . . . . . . . . . . . . . 4

Matter of Bennett v. Justin, 77 A.D.2d 960, 961 (3d Dept 1980),

aff’d , 51 N.Y.2d 722 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Matter of Breitenstein v. Turco, 254 A.D.2d 566 (3d Dept. 1998) . . . . . . . . . . . . . . . . . . . . . . . 4

Matter of Esiason v. Washington Cty. Bd. of Elections,

220 A.D.2d 878 (3d Dept.), lv. denied, 86 N.Y.2d 709 (1995) . . . . . . . . . . . . . . . . . . . 2

Matter of Green v. Mahr, 231 A.D.2d 480 (2d Dept. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Matter of Scaringe v. Ackerman, 119 A.D.2d 327 (3d Dept 1986),

aff’d , 68 N.Y.2d 885 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

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Murphy v. Acito, 65 A.D.2d 661 (3d Dept 1978),

lv. denied, 45 N.Y.2d 712, appeal dismissed , 45 N.Y.2d 897 (1978) . . . . . . . . . . . . . . . 3

R.A. Bronson, Inc. v. Franklin Correctional Facility,

255 A.D.2d 723 (3d Dept. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rodgers v. New York City Fire Dept., 80 A.D.3d 1091 (3d Dept 2011) . . . . . . . . . . . . . . . . 1, 2

State of Kansas v. State of Colorado, 206 U.S. 46 (1907) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Strunk v. New York State Bd. of Elections,

35 Misc 3d 1208(A) (Sup. Ct. Kings Cty. 2012),

aff’d , 126 A.D.3d 777 (2d Dept. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United States v. Wong Kim Ark, 169 U.S. 649 (1898) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Western Union Tel. Co. v. Call Pub. Co. , 181 U.S. 92 (1901) . . . . . . . . . . . . . . . . . . . . . . . . . 10

Wicksel v. Cohen, 262 N.Y. 446 (1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statutes:

3 U.S.C. § 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

3 U.S.C. § 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1790 Naturalization Act, 1 Stat. 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 14

1795 Naturalization Act, 1 Stat. 414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

British Nationality Act of 1730, 4 Geo. 2, c. 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Election Law § 1-106(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Election Law § 6-122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Election Law § 6-154(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-4

Election Law § 16-100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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U.S. Constitution:

Article II, §1, cl.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14

Amendment XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Amendment XX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Legislative Materials:

Journal of the House of Representatives of the United States . . . . . . . . . . . . . . . . . . . . . . . 12-14

Journal of the Senate of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Other Authorities:

James Madison, Notes on the Constitutional Convention of 1787 (for August 31, 1787),

at: http://avalon.law.yale.edu/18th_century/debates_831.asp. . . . . . . . . . . . . . . . . . . . . 12

Mary Brigid McManamon, “The Natural Born Citizen Clause as Originally Understood”,

64 Catholic Univ. L. Rev. 317 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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ARGUMENT

I. NEITHER THE CASE LAW NOR THE ELECTION LAW CALLS FOR REJECTING A PETITION ON THE BASIS OF OBJECTIONS THATTHE BOARD OF ELECTIONS CANNOT ADJUDICATE.

Respondent Cruz fails to respect well-established rules of statutory interpretation,

misinterprets the meaning of “ministerial”, and fails to recognize that the sole purpose of

the three-day rule is to avoid delay of those matters that a board of elections has power to

adjudicate. Cruz seeks to render sacrosanct a deadline that cannot affect the election

schedule, while ignoring the fact that petitioners fully complied with the only filing

schedule that can matter here. Cruz fails to cite any court that has dismissed a petition on

objection grounds where a board of elections was powerless to act. He also mis-cites the

Scaringe and Bennett cases.

First, Cruz’s attempted interpretation of Election Law § 6-154(2) flies in the face

of well-established case law in this Court and elsewhere concerning the principles of

statutory interpretation. Section 6-154(2) contains only one dismissal sanction, and that

sanction is found in its third sentence concerning the six-day deadline for filing

specifications. No such sanction appears in the preceding sentence concerning the timing

of an initial (“general”) objection. Claiming to understand “the structure of the statute”,

respondent Cruz makes a strained and unconvincing effort to treat the second and third

sentences in Election Law § 6-154(2) as if they were the same. However, the Legislature

has treated the two matters differently. Respondent Cruz asks this Court to treat them

identically, but identical treatment would violate the dual principles that effect must be

given to all parts of a statute and that the omission in one part of a statute of an item that

is found in another part must be considered to be intentional. Rodgers v. New York City

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Fire Dept ., 80 A.D.3d 1091, 1094 (3d Dept. 2011) (citation omitted). Moreover, this

Court has on more than one occasion looked to the Legislature to determine whether a

late filing is a “fatal defect” as specified in other provisions of the Election Law. See,

e.g., Matter of Esiason v. Washington Cty. Bd. of Elections, 220 A.D.2d 878, 879 (3d

Dept.), lv. denied, 86 N.Y.2d 709 (1995) (applying “fatal defect” rule prescribed by

Legislature in Election Law § 1-106(2)). The Legislature did not provide a fatal defect

rule for objections filed with the State Board of Elections, see Election Law § 1-106(2),

and the Court should therefore be chary about imposing a sanction not provided for in the

statute.

Contrary to respondent Cruz’s theory, petitioners’ construction of Election Law §

6-154(2) is not an interpretation that will render the three-day schedule for general

objections “meaningless”. (Opp. Br. at 7). Petitioners do not suggest that this schedule

should be overlooked when ministerial matters within the competency of a board of

elections are at issue, since – in those situations – delay can result if the filing schedule

for objections is not adhered to. However, in situations where a board of elections is

powerless to act, adherence to the three-day schedule for filing objections can make no

difference whatsoever. Since it is apparent from the text of Section 6-154(2) that its sole

purpose is to avoid delay of elections, there is no ground for applying the three-day rule

where it does not and cannot affect the timing of an election. Just as this Court has

recognized that a filing deadline “having no logical bearing upon the underlying purpose

of preventing fraud” should not carry a drastic sanction, Cozzolino v. Columbia County

Bd. of Elections, 218 A.D.2d 921, 923 (3d Dept.), lv. denied, 86 N.Y.2d 704 (1995), so a

deadline having no logical bearing on the statutory purpose of preventing delay also

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should not carry a drastic sanction.

Under respondent Cruz’s interpretation, late filing of an objection precludes

resolution of the issue that it raises even though the Board is powerless to act on that

objection. As this Court has held, however, statutes are not construed to lead to such

meaningless results: “It is axiomatic that in interpreting a statute, we should not do so in

such a way as to reach an absurd result, . . . , nor should we construe one portion of the

statute in such a manner as to render another portion thereof meaningless.” R.A. Bronson,

Inc. v. Franklin Correctional Facility, 255 A.D.2d 723, 724 (3d Dept. 1998) (citations

omitted).1 Election Law §§ 6-122 and 16-100, which permit voters to go to court when a

proposed candidate is ineligible for the office he or she seeks, should not be rendered

meaningless by an empty formality that has nothing to do with preventing delay.

Cruz incorrectly maintains (Opp. Br. at 16-17) that the Board could have acted

upon petitioners’ objections. This argument cannot be seriously entertained. The

constitutional question that petitioners raise is not even remotely capable of being

resolved by application of ministerial rules. It is long established that “where the law

prescribes the rule to be followed so as to leave nothing to the exercise of judgment or

discretion, the act is a ministerial act, but where the act involves the exercise of judgment

or discretion in determining whether the duty exists, the act is judicial.” Wicksel v.

Cohen, 262 N.Y. 446, 449 (1933). This Court follows the same rule: “[D]iscretionary or

quasi-judicial acts involve the exercise of reasoned judgment which could typically

1 Similarly, this Court held in Murphy v. Acito, 65 A.D.2d 661, 662 (3d Dept. 1978), lv. denied, 45 N.Y.2d 712, appeal dismissed , 45 N.Y.2d 897 (1978), that “[c]ourts should construe statutes to avoid an

unreasonable result and should, if necessary, depart from the literal words of the statute to comply with

the legislative intent.” Because of the difference in the two sentences in Section 6-154(2), it is not even

necessary to depart from the literal words of the statute in order to avoid an unreasonable result.

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produce different acceptable results whereas a ministerial act envisions direct adherence

to a governing rule or standard with a compulsory result.” Lewis v. State, 68 A.D.3d

1513, 1514 (3d Dept. 2009). Interpretation of Article II of the Constitution involves the

exercise of reasoned judgment and therefore ineluctably falls outside the purview of the

Board of Elections. The Board itself recognized this in deciding not to consider petition-

ers’ objections because they raised an issue outside its ministerial function. R93,94.2

This fact sets this case apart from every case cited by Respondent Cruz concerning

the three-day objection schedule. None of those cases (and there are only four) involved

subjects outside the institutional competence of a board of elections.3 In no prior case has

this Court or any other New York court ruled that a challenge to a candidate’s

fundamental constitutional qualifications must be dismissed because of an issue involving

objections that a board of elections is powerless to hear. Since the second sentence of

Election Law § 6-154 (2) does not require such an absurd result, respondent Cruz’s

interpretation should be rejected.

Although Cruz cites Matter of Scaringe v. Ackerman, 119 A.D.2d 327 (3d Dept.

1986), aff’d , 68 N.Y.2d 885 (1986), there is no holding or even comment in Scaringe that

concerns the objection schedule in Election Law § 6-154 (2). Rather, this Court expressly

2 The Board’s counsel confirmed this again at oral argument below: “The general substance, the notionthat the Board is ministerial and that it doesn't engage in fact finding on issues of interpretation of law, the

applications of law to those sort of situations is true.” Tr. at 27-28. Petitioners have just obtained the

transcript of the oral argument and will file and serve it expeditiously.

3 See Matter of Breitenstein v. Turco, 254 A.D.2d 566 (3d Dept. 1998) (petition signatures); Matter of Green v. Mahr , 231 A.D.2d 480 (2d Dept. 1996) (petition signatures); Mackay v. Johnson, 20 Misc.3d

1136(A), (Sup. Ct. Nassau Cty. 2008), aff’d, 54 A.D.3d 428 (2d Dept. 2008) (petition contained

“numerous irregularities” and invalid certificate of authorization); Matter of Bennett v. Justin, 77 A.D.2d

960, 961 (3d Dept. 1980), aff’d , 51 N.Y.2d 722 (1980) (error in authorizing certificate filed with Board of

Election).

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stated that its holding concerned the time frame for instituting court proceedings: “We

hold that this proceeding . . . is subject to the 14-day period of limitations provided for in

Election Law § 16-102 (2).” Nor does the brief decision in Matter of Bennett v. Justin, 77

A.D.2d 960, 961 (3d Dept. 1980), aff’d , 51 N.Y.2d 722 (1980), which was a challenge by

one political party to another party’s internal proceedings, contain a holding that controls

this case. In Gross v. Hoblock , 6 A.D.3d 933, 935 (3d Dept. 2004), this Court

authoritatively stated that its decision in Bennett “held that a candidate of one party has

no standing to challenge the designating petition of another party’s candidate where such

challenge is founded upon a lack of compliance with Election Law § 6–120.” Thus

Bennett cannot be taken to be a holding as to the implications of the three-day objection

schedule.

Finally, Cruz asserts that the cases petitioners have cited where filing deadlines

were not enforced were “extreme”. (Opp. Br. at 12). However, there is nothing more

extreme or absurd than dismissing on the basis of an objection that could not be acted on

no matter when it was filed.

II. THE POLITICAL QUESTION DOCTRINE DOES NOT APPLY.

As the court recently held in Elliott v. Cruz , 2016 WL ___ (Comm. Ct. Pa. March

10, 2016) (Slip. Op. provided to this Court on March 14, 2016), “the political question

doctrine is invoked only when the framers of the Constitution made clear their intention

that the judiciary abstain from resolving a particular question of constitutional inter-

pretation.” Slip Op. at 5. Contrary to Cruz’s contention, nowhere does the Constitution

textually or otherwise reveal an intention to preclude judicial interpretation of the

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requirements of Article II. As the Elliott decision observes, Article II and Amendment

XII “do not vest the Electoral College with power to determine the eligibility of a

Presidential candidate since it only charges the [m]embers of the Electoral College to

select a candidate for President and then transmit their votes to the nation’s ‘seat of

government.’” Elliott , Slip Op. at 7. Elliott ’s analysis of the political question doctrine is

well-grounded both in textual analysis of the Constitution and in decisions of the

Supreme Court defining the scope of this doctrine.

Although Cruz invokes the Twentieth Amendment, he fails to cite or distinguish

the decision in Lindsay v. Bowen, 750 F.3d 1061 (9th Cir. 2014). As noted in petitioners’

opening brief, the Ninth Circuit rejected the very argument Cruz makes here. It held:

“. . . nothing in the Twentieth Amendment states or implies that Congress

has the exclusive authority to pass on the eligibility of candidates for

president. The amendment merely grants Congress the authority to deter-

mine how to proceed if neither the president elect nor the vice president

elect is qualified to hold office, a problem for which there was previously

no express solution. . . . Candidates may, of course, become ineligible to

serve after they are elected (but before they start their service) due to illness

or other misfortune. Or, a previously unknown ineligibility may bediscerned after the election. The Twentieth Amendment addresses such

contingencies. Nothing in its text or history suggests that it precludes state

authorities from excluding a candidate with a known ineligibility from the

presidential ballot.” Lindsay, 750 F.3d at 1065 (emphasis in original).

Finally, Cruz cites cases from 2008 and 2012 brought by misguided “birthers”

challenging President Obama’s eligibility for office on a variety of theories. Many of

these cases were brought by pro se litigants who apparently did not bring the nature and

functioning of the so-called “Electoral College” to the attention of those courts.4 None of

4 See, e.g., Strunk v. New York State Bd. of Elections , 35 Misc.3d 1208(A), 2012 WL 1205117 (Sup. Ct.

(continued...)

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those cases analyzed the six-factor test set out in Baker v. Carr , 369 U.S. 186, 217 (1962),

and applied in subsequent cases such as Kerr v. Hickenlooper , 744 F.3d 1156, 1179-80

(10th Cir. 2014), vacated on other grounds, 135 S.Ct. 2927 (June 30, 2015), for

determining whether the political question doctrine applies.

Cruz misleadingly contends that members of the House and Senate “may submit

objections to the electoral vote for consideration by each chamber.” Opp. Br. at 24, citing

3 U.S.C. § 15. However, any such objections are limited to “any vote or paper from a

State”, id., and may not entertained at all if a State has previously provided for procedures

for the “final determination of any controversy or contest concerning the appointment of

all or any of the electors of such State.” 3 U.S.C. § 3. Cruz fails to show that the

Electoral College is a substitute for judicial interpretation of the Constitution.

III. CRUZ HAS FAILED TO DEMONSTRATE THAT HEMEETS THE ARTICLE II “NATURAL BORN CITIZEN”QUALIFICATION FOR THE PRESIDENCY.

A. The American Common Law Definition of “Natural Born Citizen” in 1787Did Not Encompass the British Parliament’s Naturalization Statutes.

Respondent Cruz asserts that “[a]though the Constitution does not define the

phrase [“natural born citizen”], its meaning is not difficult to determine.” (Opp. Br. at 28).

Tellingly, Cruz turns first for guidance not to case-law but to modern-day dictionaries,

modern-day colloquialisms, and modern-day commentators. (Opp. Br. at 28-9) However,

it is the common law in America in 1787 that is determinative. To define “natural born,”

4(...continued)Kings Cty. 2012), aff’d , 126 A.D.3d 777 (2d Dept. 2015); Grinols v. Electoral Coll., 2013 WL 2294885

(E.D. Cal. May 23, 2013), aff’d , 622 Fed. Appx. 624 (9th Cir 2015); Bowhall v. Obama, 2010 WL

4932747 (M.D. Ala. Nov. 30, 2010) (noting that complaint was “frivolous”).

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the Supreme Court has held that “it must be interpreted in the light of the common law,

the principles and history of which were familiarly known to the framers of the

constitution.” United States v. Wong Kim Ark , 169 U.S. 649, 654 (1898).

As petitioners’ opening brief (at pp. 35-39) established – and respondent Cruz does

not rebut with case-law – the Supreme Court has recognized that the common law rule of

jus soli (right of soil) does not confer citizenship on children born outside of the

sovereign’s territorial limits:

The notion that there is any common-law principle to naturalize the children born in foreign countries, of native-born American father ‘and’ mother,father ‘or’ mother, must be discarded. There is not, and never was, any suchcommon-law principle …. ‘The acquisition,’ says Mr. Dicey (741), of ‘nationality by descent, is foreign to the principles of the common law, andis based wholly upon statutory enactments.’

Wong Kim Ark , supra, 169 U.S. at 670, 683-685 (emphasis supplied). As the Court

recognized in Wong Kim Ark , the common law rule of jus soli contains an exception for

children born overseas to citizens serving as diplomatic envoys of their sovereign. This is

an ancient principle of the common law. See Mary Brigid McManamon, “The Natural

Born Citizen Clause as Originally Understood”, 64 Catholic Univ. L. Rev. 317, at p. 331

(2015). Parroting an inexplicable argument made by some commentators, Cruz contends

(Opp. Br. at 32) that the Framers could not have understood “natural born citizen” to

exclude foreign-born children of U.S. citizens because John Jay proposed the requirement

to George Washington, the President of the Constitutional Convention (Jay letter was

quoted in petitioners’ opening brief, at p.34). So, according to this bizarre theory, John

Jay had fathered three children while serving abroad as a U.S. diplomat and thus could

not possibly have intended to exclude his children from the Presidency. However, John

Jay was not a delegate to the Constitutional Convention (see n. 6 below) and thus not a

Framer. Accordingly, any definition of “natural born” that someone might imagine he had

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in mind is irrelevant. Moreover, there is absolutely no basis for rank speculation that

John Jay, a prominent lawyer who became the first Chief Justice of the United States, was

unaware of the common law rule of jus soli and its ancient exception for the foreign-born

children of diplomats such as himself serving abroad.

Finding the common law rule of jus soli inconvenient for their purpose, respondent

Cruz and certain modern-day commentators make the patently inaccurate argument that

the common law was understood in America in 1787 to include Acts of the British

Parliament, including British naturalization statutes. This theory – which Cruz does not

support with a single citation to any decision by the Supreme Court or any other court in

this country – is historically very dubious given that the United States had only recently

fought a bloody revolution in large part because of the oppressive Acts of the British

Parliament. Moreover, this theory is rebutted by the British statute which Cruz failed to

quote accurately and by Supreme Court decisions.

Cruz misleadingly cites the British Nationality Act of 1730, 4 Geo. 2, c. 21, for the

proposition that “English law at the time of the Founding” provided that foreign-born

children of a Crown Subject were “natural-born Subjects” (Cruz Reply Br 30) (emphasis

supplied by Cruz) Cruz egregiously omits key words when allegedly quoting from the

1730 Act. In fact, the 1730 Act (whose preamble states it was being enacted “to explain”

a Clause in an earlier Act “ For naturalizing Foreign Protestants”) provided in relevant

part that foreign-born children of fathers who were “natural-born Subjects of the Crown”

at the time of the birth of such children

shall and may, by virtue of said recited Clause in the said Act [of Parliament] of the seventh Year of the Reign of her said late Majesty[Queen Anne], and of this present Act, be adjudged and taken to be, and allsuch Children are hereby declared to be natural-born Subjects of the Crownof Great Britain, to all Intents, Constructions and Purposes whatsoever.(emphasis supplied)

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(A copy of 1730 Act may be found at: http://www.uniset.ca/naty/BNA1730.htm.) That an

affirmative act by Parliament was necessary to confer status as a “natural born” subject

demonstrates that such a designation was known to be in derogation of the common law.

Simply put, the very existence of British statutes “adjudging” and “declaring” such

children to have natural born status belies the contention that the common law was in

accord with those statutes.

Furthermore, the Supreme Court has repeatedly articulated its understanding that

the American common law exists as a body of law independent from statutory law. A

notable case is Levy’s Lessee v. McCartee, 31 U.S. 102, 110-11 (1832). Therein, litigants

argued that certain British statutes continued “in full vigour and operation” as part of the

common law of New York even though the New York Legislature had, pursuant to

explicit authorization in the New York Constitution of 1777, passed a statute providing

that “none of the statutes of England or Great Britain shall be considered as laws of this

state”. Speaking through Justice Joseph Story, the Court flatly rejected the argument that

British statutes antecedent to the American Revolution were, separately, part of the

common law: “The common law is constantly and generally used in contradistinction to

statute law…. It is too plain for argument, that the common law is here spoken of in its

appropriate sense, as the unwritten law of the land, independent of statutable enactments.”

For further supporting authority, see Western Union Tel. Co. v. Call Pub. Co., 181 U.S.

92, 101-02 (1901) (agreeing with Chancellor Kent that the common law’s principles,

usages and rules “‘do not rest for their authority upon any express or positive declaration

of the will of the legislature’”); State of Kansas v. State of Colorado, 206 U.S. 46, 96

(1907) (“As [the common law] does not rest on any statute or other written declaration of

the sovereign . . . .”).

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Accordingly, British naturalization statutes antecedent to the Constitutional

Convention are irrelevant for purposes of construing the Constitution. Equally irrelevant

is the U.S. naturalization statute enacted three years after the Constitution was written, for

the reasons set forth below.

B. The Framers’ Intent in 1787 Cannot Be Ascertained From a 1790 Statute.Moreover, with Framer James Madison’s Active Leadership, the 1790Statute Was Repealed in 1795 and Replaced by a Statute Which Deletedthe Very Text That Cruz Cites in the 1790 Statute.

The 1790 Naturalization Act (1 Stat. 103) (the “1790 Act”) included a provision

that foreign-born children of U.S. citizens “shall be considered as natural born citizens”.

(emphasis supplied) Although not directly positing that the Congress can authoritatively

interpret, or amend, the Constitution5, respondent Cruz nonetheless contends (Opp. Br. at

31) that the 1790 Act’s enactment by the First Congress sheds light on the Framers’

understanding of “natural born citizen” supposedly because the First Congress included

eight of the eleven members of the Convention committee that drafted the “natural born”

requirement.

In fact, neither the make-up of the First Congress nor its actual proceedings

support the view that the Framers of the Constitution6 considered the term “natural born”

5 Although Cruz does not contend that Congress can authoritatively interpret the Constitution, he wouldhave this Court rely on modern-day commentary prepared by persons paid by Congress, i.e., the

Congressional Research Service (“CRS”). Cruz cites a CRS essay which was issued on the eve of the

2012 Presidential election (and re-issued on the eve of the 2016 Presidential election), when, on each

occasion, both Houses of Congress were controlled by the same party and a Senator of such party was

confronting questions about his “natural born citizen” eligibility. Moreover, the responsibility for

interpreting the Constitution is vested in the courts, not Congress or its helpers at the CRS.

6 55 delegates (“Convention delegates”) attended at least some of the sessions of the 1787 Constitutional

Convention (the “Convention”), but only 39 signed the final document. A full list of Convention

delegates (identifying the 16 who did not sign) may be found at:

http://www.archives.gov/exhibits/charters/constitution_founding_fathers.html . Only 8 of the 55

Convention delegates were born outside of the United States:

http://www.archives.gov/exhibits/charters/constitution_founding_fathers_overview.html .

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to encompass foreign-born children of a U.S. citizen. When the 1790 Act was approved

by the First Congress in March 1790, only 23% of the combined membership of the

House and Senate had been Convention delegates.7 Further, the 1790 Act originated in

the House of Representatives, where only 14% of the Members had been Convention

delegates, and the 1790 Act was drafted by a House committee of three,8 none of whom

had been a Convention delegate. The committee’s draft was later referred to a larger

House committee of ten – and only one of that committee [Roger Sherman, CT] had

attended the Convention. See House Journal , Vol. 1, p. 152 (Feb. 4, 1790).

Thus, to be clear, none of the members of the Convention committee that drafted

the “natural born” requirement9 served on the House committee that drafted the 1790 Act,

and only one of them [Roger Sherman, CT] served on a subsequent House committee that

secondarily worked on the bill. The House Journal contains no record of the substance of

any committee work or floor debate on the terminology used in the 1790 Act. Id ., pp.

152, 160, 162-3, 164 & 167. When the House passed the bill without a recorded vote on

7 The 23% figure is derived by comparing the list of Convention delegates (n.6 above) with the roster of

the First Congress [http://history.house.gov/Congressional-Overview/Profiles/1st/ ]. When the 1790 Act

was enacted in March 1790, there were 64 Representatives and 24 Senators (Rhode Island was not

represented in the Congress at that time because Rhode Island did not ratify the Constitution until May

28, 1790).

8 The committee [Thomas Hartley (PA) (chair), Thomas Tudor Tucker (SC), and Andrew Moore (VA]

was appointed on January 15, 1790. See Journal of the House of Representatives of the United States

(“ House Journal ”), Vol. 1, p. 141, available at: https://memory.loc.gov/cgi-

bin/ampage?collId=llhj&fileName=001/llhj001.db&recNum=138&itemLink=r%3Fammem%2Fhlaw%3

A%40field%28DOCID%2B%40lit%28hj001178%29%29%3A%230010132&linkText=1. Due to space

limitations, all other citations to the House and Senate Journals will not include website links, but the

relevant House and Senate Journals are at: https://memory.loc.gov/ammem/amlaw/lawhome.html.

9 The Convention committee that inserted the “natural born citizen” requirement into Art. II, §1, cl.5 hadthese members: David Brearley (NJ), Abraham Baldwin (GA), Pierce Butler (SC), Daniel Carroll (MD),

John Dickinson (DE), Nicholas Gilman (NH), Rufus King (MA), James Madison (VA), Gouvenour

Morris (PA), Roger Sherman (CT), and Hugh Williamson (NC). See James Madison’s Notes on the

Constitutional Convention of 1787 (for August 31, 1787), at:

http://avalon.law.yale.edu/18th_century/debates_831.asp.

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March 4, 1790, id ., p. 167, 86% of the House members (i.e., 55 out of 64) had not been

Convention delegates.10 With no recorded vote, there is no record of whether the small

minority of Representatives who had been Convention delegates voted for or against the

1790 Act.11

In the Senate the House bill was reported out by a Senate committee of five, four

of whom had attended at least some of the Convention sessions. See Journal of the

Senate of the United States (“Senate Journal ”), Vol. 1, p. 119 (Mar. 9, 1790). There is no

record of the substance of committee work and virtually no record of the floor debate, and

there was no recorded vote when the Senate passed the bill on March 19, 1790.12

Thirteen of the 24 Senators had not been Convention delegates.13 With no recorded vote,

there is no record of whether the minority of Senators who had been Convention

delegates voted for or against the 1790 Act.

In sum, there is nothing in the legislative history of the 1790 Act evidencing that

the minority of Representatives and Senators who had been Convention delegates actually

voted for the 1790 Act. Nor is there any record to indicate that the legislators who voted

for the 1790 Act had meant to reflect the Framers’ understanding of the common-law

definition of “natural born citizen” when voting on the 1790 Act. On the contrary, by its

terms the 1790 Act evidences that the First Congress knew that foreign-born children of

10 Ascertainable by comparing list of Convention delegates (n. 6) with the roster of the first House (n. 7).

11 The impetus for the House bill to draft a naturalization bill was President Washington’s first State of the Union address, wherein he said: “Various considerations also render it expedient that the terms on

which foreigners may be admitted to the rights of citizens, should he [ sic] speedily ascertained by a

uniform rule of naturalization.” House Journal , Vol. 1, p. 135 (January 8, 1790) (emphasis supplied).

12 Senate Journal, Vol. 1, p. 122 (Fri., Mar. 19, 1790) (Senate passed House bill with an unspecified

amendment and returned to the House). The House, in an unrecorded vote, approved the unspecified

Senate amendment. House Journal , Vol. 1, pp. 178-9 (Mon., Mar. 22, 1790).

13 Ascertainable by comparing list of Convention delegates (n. 6) with the roster of the first Senate (n. 7).

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U.S. citizens were not “natural born citizens” under existing law. Otherwise there would

have been no need for the 1790 Act to provide that such children “shall be considered as

natural born citizens”. (1 Stat. 103) (emphasis added).

Further diminishing whatever significance that can be attached to the 1790 Act, it

was repealed and replaced by the 1795 Naturalization Act (1 Stat. 414) (the “1795 Act”).

Significantly, the 1795 Act removed the 1790 Act’s provision that foreign-born children

of U.S. citizens “shall be considered as natural born citizens,” and replaced it with a

provision that such children “shall be considered as citizens”.14 Unlike the 1790 Act,

which was drafted by a committee that included no Convention delegates, the 1795 Act

was drafted by a three-man committee led by none other than James Madison.15 Not only

did Madison play a pre-eminent role overall in the Convention, he was also a principal

member of the Convention committee that inserted the “natural born citizen” requirement

into Art. II, §1, cl.5 (see n. 9). Thus, the Third Congress not only removed the 1790 Act’s

reference to “natural born”, it did so in a bill that was prepared by and shepherded

through the House by Madison, a principal author of Article II’s “natural born citizen”

requirement.

Since 1975 at least eight Congressional proposals16 have been introduced to amend

Article II, §1, cl.5 to remove the “natural born citizen” requirement and replace it with a

14 House Journal , Vol. 2, pp. 259, 272, 275, 277-282, 284-287, & 304; Senate Journal , Vol. 2, pp. 143-5,

& 148-149.

15 House Journal , Vol. 2, p. 259.

16 H.J.R. 33 [introduced by Rep. Jonathan B. Bingham (D-NY-22) on Jan. 14, 1975] and H.J.R. 38

[introduced by Rep. Bingham on Jan. 4, 1977]; H.J.R.59 [introduced by Rep. Vic Snyder (D-AR-2) onJune 11, 2003 (with 4 Democratic co-sponsors and 2 Republican co-sponsors)]; H.J.R.67 [introduced by

Rep. John Conyers, Jr. (D-MI-14) on Sept. 3, 2003 (with 1 Democratic co-sponsor)]; H.J.R.104

[introduced by Rep. Dana Rohrabacher (R-CA-46) on Sept. 15, 2004]; H.J.R.2 [introduced by Rep.

Conyers on Jan. 4, 2005 (with 1 Democratic co-sponsor)]; H.J.R.15 [introduced by Rep. Dana

Rohrabacher (R-CA-46) on Feb. 1, 2005], and H.J.R.42 [introduced by Rep. Snyder on April 14, 2005

(with 1 Democratic co-sponsor)].

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Documents

Reply Brief for 3rd Dept. 2016 03 16 - final filed for petitioners-appellants.pdf