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Saturday, February 13, 2016

Does Donald Trump Have Standing to Keep Ted Cruz off of the Ballot?

The other day Donald Trump claimed, on Twitter, that he has standing to challenge Ted Cruz's eligibility to be president.  The substantive question revolves around whether Cruz is a "natural born citizen" because he was born in Canada.

Rick Hasen, who should always be trusted when it comes to matters of election law, suggests that Trump would have standing based on the notion of "competitive standing": in essence, Cruz's (improper) appearance on the ballot makes the election more competitive for Trump.  Trump is therefore injured by having to run a campaign against an opponent who might not be eligible for the office. 

I'm not convinced.

Most fundamentally, the cases invoking the "competitive standing" doctrine all involved the government providing some benefit on some candidates but not others, thereby putting the candidate at a "competitive" disadvantage in the campaign.  In one case, Ralph Nader had standing because he objected to participating in a presidential debate sponsored by corporate donors.  He suffered an injury, as compared to his rivals, because of the decision to hold the debate in a manner that was contrary to the message of his campaign -- making the election fundamentally less competitive for him because he could not reach voters who would watch the debate.  In the cases giving "competitive standing" to political parties, there was direct evidence that the governmental action would directly cause added expenses: for example, when the Republican Party in Texas sought to remove Tom DeLay from the ballot and substitute a new candidate, the Texas Democratic Party suffered an injury-in-fact in the need to mount a completely different campaign against a different opponent.  Courts have also found an injury to a political party when the party's nominee will face stiffer competition, i.e., leading to added expenses, but this relates to the general election, when ideological lines are clearer.

Here, the added expense to Trump seems fairly speculative.  How can he demonstrate that Cruz's placement on the ballot has harmed him directly?  Maybe all of Cruz's supporters would vote for Ben Carson. Can he point to any direct campaign expenses that he has incurred, and would not have, if Cruz were not on the ballot?  That is, how does Cruz's placement on the ballot directly cause any injuries to Trump? Is it because he is the front runner, meaning that Jim Gilmore would not have had standing (before he dropped out, of course)? Further, this situation seems different from the government sponsoring a debate but having rules that effectively exclude one candidate, providing a clear competitive disadvantage to that candidate.

At a minimum, this does not seem to be a clear-cut case.  To be sure, Trump could sue in state court under various state standing doctrines, or have a state's ballot commission rule on Cruz's eligibility.  (Derek Muller is compiling these various lawsuits, brought by voters, here.)  And he could sue after the election in each state, saying that his loss of delegates was caused directly by Cruz winning some of those ballots when Cruz was ineligible.  But I think that a pre-election suit to try to take Cruz off of the ballot is a much harder road. Trump would need to show that this "competitive standing" doctrine should extend beyond political parties at a general election, beyond a conferral of actual benefits to some candidates but not others, but to the mere appearance of an additional candidate on the ballot, when the election has not yet taken place.

My guess is that a federal court will not want to wade into the murkiness of Trump's standing and will wait for the political process to play out, or for after the election in that state, to make a ruling. If it does reach the question of Trump's standing, then there are good arguments against his ability to bring this suit.

[Update: Rick Hasen responds here. We certainly agree on one point: Trump will lose this case one way or the other, whether it is on standing or the merits.]

Posted by Josh Douglas on February 13, 2016 at 12:31 PM in Law and Politics | Permalink


Hmmmm. Interesting. Why a county clerk? A state board of elections for a statewide effect. Mandamus in state or Federal court?

Posted by: jcargh | Feb 14, 2016 11:24:31 PM

Scott, he could sue for mandamus against a county clerk to remove Cruz's name from the ballot.

Posted by: Rick Hasen | Feb 14, 2016 7:59:37 PM

Interesting. Trump might also be able to assert third-party standing on behalf of the Trump voters in Iowa whose votes were diluted by the presence of an ineligible candidate. But forget standing (or ripeness) for a moment here. Even if he's competitively injured, what's Trump's cause of action?

Posted by: Scott Dodson | Feb 14, 2016 6:37:26 PM

It seems to me that the way to challenge this is to get some state election official, maybe backed up with a state attorney general's opinion, to refuse to put Cruz on the ballot and force Cruz to sue in federal court to get on the ballot and to prove that he is a natural born citizen. This avoids the standing issue.

Posted by: jcargh | Feb 13, 2016 11:36:18 PM

I'm guessing either standing goes off on causation/redress grounds, or it goes off as a flat-out political question.

Posted by: Paul Gowder | Feb 13, 2016 5:52:19 PM

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