Sen. Delph earlier this session introduced SB 114, which would establish a mechanism in Indiana law for the first time to allow the Indiana Elections Division to gather the necessary documentation from presidential candidates seeking placement on Indiana's election ballot to ascertain they meet the age, natural born citizenship and 14-year residency requirement set out in the U.S. Constitution. Currently, no federal or state law provides any mechanism for ascertaining a candidate meets the eligibility requirement to hold the most important elected office in the free world. The U.S. Constitution vests broad discretion in the states to determine ballot access requirements for candidates and the process through which each state selects its electors, who actually cast the votes that decide who becomes president and vice-president every four years as part of the electoral college process.
While SB 114 did not receive a hearing, similar legislation has been making its way through several state legislatures this year. Arizona became the first state in the nation to pass a comprehensive presidential qualification bill; however, Gov. Jan Brewer vetoed the bill out of concern that it imposed too great a burden on the state's secretary of state to decide what documentation to accept from presidential candidates for placement on Arizona's ballot. While Delph's legislation merely allowed a candidate to satisfy filing requirements by presenting the same documentation a citizen requires to obtain a driver's license, passport or social security number, the Arizona legislation went much further. Arizona's legislation requires a candidate to furnish a certified, long-form birth certificate that is filed originally with the state's vital records agency that includes "at least the date and place of birth, the names of the hospital and the attending physician, if applicable, and signatures of any witnesses in attendance." If a candidate is unable to produce a long-form birth certificate, he or she would be required to produce two or more other forms of documentation, including a baptismal record, circumcision record, hospital birth record or early census record. As with Delph's legislation, the Arizona bill also required the candidate to sign an attestation swearing he met the constitutional eligibility requirements.
In vetoing the legislation, Gov. Brewer stated, “As a former Secretary of State, I do not support designating one person as a gatekeeper to the ballot for a candidate, which could lead to arbitrary or politically-motivated decisions. She added, “I never imagined being presented with a bill that could require candidates for President of the greatest and most powerful nation on earth to submit their ‘early baptismal or circumcision certificates’ among other records to the Arizona Secretary of State. This is a bridge too far.” Of course, what Sen. Delph has proposed is no different than what ordinary citizens are required to do to perform any number of transactions, including getting a driver's license. Delph distinguished his proposed legislation under questioning by Sen. Zakas. Sen. Delph pointed out the problem that arose in 2008 was an issue for both the Republican and Democratic candidates. Sen. John McCain's eligibility was challenged in court because he was born in Panama, while Barack Obama was challenged based on claims he was not born in Hawaii or, alternatively, he was ineligible because his father's Kenyan citizenship made him a dual citizen at birth. Some legal scholars believe only persons born to two U.S. citizens can be a natural born citizen, while others contend one only needs to be born on American soil. No federal court has ever decided the meaning of the requirement within the context of a presidential candidate.
Elections law expert Rick Hasen agreed that such legislation could be on firm constitutional grounds so long as it does not impose an additional qualification to hold the office beyond what is set out in the U.S. Constitution. Hasen told the Arizona Republic:
Rick Hasen, an election-law specialist and visiting professor at University of California-Irvine School of Law, said he believes the bill's constitutionality is uncertain because there is a conflict between two different parts of the U.S. Constitution.I appeared at today's hearing to testify in support of Delph's and Landske's resolution calling for the appointment of a study committee to further study the issue. Barack Obama's 2008 Indiana Chairman, Kip Tew, spoke in opposition to the resolution. Naturally, Tew tried his best to divert attention away from the issue at hand and insisted the legislation was nothing more than a partisan attempt to de-legitimize Obama's presidency. Tew proclaimed that Obama had already proven his eligibility by producing a Certificate of Live Birth issued by the state of Hawaii, which Delph had already explained would be acceptable documentation under the legislation he proposed. Tew seemed uninformed on the challenges McCain had faced on the same issue in 2008. Delph reminded him that Sen. McCain had to resort to a resolution approved by his Senate colleagues to put to rest the issue of whether he was a natural born citizen. Tew also lacked knowledge of the fact that Democrats, unlike Republicans, filed a certificate of nomination with state election's authorities, including Indiana's, that neglected to include an affirmation that Obama met the constitutional eligibility requirement as had occurred in similar filings made by the respective parties in previous elections. Numerous lawsuits filed against both Obama and McCain by citizen activists were uniformly dismissed by federal courts as lacking standing to assert a legal challenge.
One part gives state legislatures broad powers to set rules for their presidential electors who, under the Electoral College system, actually cast the official votes for president.
"That gives the Legislature power to make the rules," he said. "A legislature could say it's not even going to hold an election for president and could pick who it is going to support."
Under that portion of the Constitution, Hasen said, Arizona could be within its power.
But, he said, the problem may be the part of the Constitution that lists the set qualifications for president. He said a U.S. Supreme Court ruling said states don't have a right to add to those presidential qualifications.
"If Arizona passed a law saying the president has to be 50, that would be unconstitutional," he said. "So, the question is whether this is simply implementing the constitutional provision or whether it creates additional qualifications."
UPDATE: Senate Democratic Leader Vi Simpson has come unhinged over Senate Republicans' efforts to clear up the Charlie White eligibility issue to avoid election chaos and today's hearing on the resolution. As can be expected, she seeks to misinform rather than inform voters on the issue under discussion in an e-mail to her Democratic supporters sent late this afternoon:
Today, they held a hearing on a “birther” resolution requiring Presidential candidates to prove their citizenship for ballot access. They have gone too far!Simpson, who is an attorney, flat out lies in her claim that the purpose behind the legislation is to require a presidential candidate to prove their citizenship. She obviously hasn't bothered to read the U.S. Constitution or she would understand there is a constitutional distinction between a citizen and natural born citizen. Simpson reminds us at the close of her e-mail what her true motivation behind her inflammatory rhetoric to her fellow Democrats is: " Since there are 37 Republicans in the State Senate, can you spare $37 to tell them you've had enough of their empty rhetoric and right-wind agenda?" Gotcha, Vi.
As Senate Democratic Leader, I’m embarrassed on behalf of my GOP colleagues.
Under President Obama’s leadership, the economy is heading in the right direction, and people are feeling better about the future, but that’s no excuse for this kind of legislative tomfoolery.
Republicans control everything, but they’re not leading us anywhere. No jobs plan. No focus on critical statewide issues. Just more wedge issue grandstanding.