SALON

Wednesday, Jun 19, 2013 3:42 PM UTC

What if we demanded Ted Cruz’s papers?

Canada-born senator wants to require documentary evidence of citizenship for voting. Maybe he should think again

By

Topics: Ted Cruz, Arizona, Supreme Court, Canada, Delaware, Naturalization, Cuba, Citizenship, Antonin Scalia, Voting Rights Act, Voting Rights,

What if we demanded Ted Cruz's papers?Ted Cruz (Credit: Jeff Malet, maletphoto.com)

Sen. Ted Cruz (R. Tex) is very unhappy about this week’s Supreme Court ruling, which held that Arizona cannot demand “documentary evidence” of United States citizenship as a condition of registering to vote in federal elections. The ruling has opened a “hole” in the law, he says, that will allow “non-citizens to register and thereby encourages voter fraud.” He has therefore vowed to “file a commonsense (sic) amendment to the immigration bill that permits states to require I.D. before registering voters.”

This raises a fascinating question. How would Cruz himself go about providing “documentary evidence” of his own citizenship?

As it happens, he was born in Canada, where his parents were working at the time. Thus, his birth certificate cannot provide any such proof. And because he claims citizenship by birth, he would never have had any reason to obtain a certificate of naturalization. According to Cruz’s official website, however, his mother was born and raised in Delaware, which is quite sufficient under the law to confer citizenship on Ted – if we take his word for it. On the other hand, what if we demanded the fabled documentary evidence?

I suppose Cruz could produce his mother’s birth certificate as well as his own, thus establishing his descent from a citizen.  Alas, things are more complicated than that.  Cruz’s father is a Cuban émigré who was not yet a U.S. citizen when Cruz was born in 1970. Thus, Cruz himself falls under a special section of the Immigration and Nationality Act that governs “Birth Abroad to One Citizen and One Alien Parent.” Under that provision, Cruz only qualifies for citizenship if his mother was “physically present” in the United States for ten years prior to his birth, five of which had to be after she reached the age of fourteen. How is he going to document that?

Now, I do not doubt that Cruz’s mother lived here most of her life. She graduated from Rice University in 1956, so that’s obviously four years right there.  But we’re not talking about things that are obvious – at least if Cruz succeeds in passing an amendment restoring the Arizona law – we’re talking about documentary evidence.  So it would not be enough to assume that Cruz’s mother lived in the United States for at least ten years, we would need some proof.  Maybe school registration records or utility bills.

Or perhaps Mrs. Cruz could simply provide an affidavit, explaining that she lived in either Delaware or Texas until she turned nineteen. While that would be adequate under a system such as the National Voter Registration Act, it would not constitute documentary evidence. Remember, it is the sufficiency of affidavits that Arizona objected to in the first place (and which Cruz calls an invitation to fraud).

Well, what about Cruz’s own passport? Wouldn’t that just cut through the whole mess, since passports are only issued to U.S. citizens. Sorry, but we again run into that sticky evidence problem. Because Cruz lacks a U.S. birth certificate, he could only have gotten a passport by establishing those same complicated underlying facts about his mother’s early life.

And how would he have done that? According to the State Department, he could have provided a statement from his “U.S. citizen parent detailing all periods and places of residence or physical presence in the United States and abroad before [his] birth.” (Cruz might alternatively have submitted a “Consular Report of Birth Abroad,” but that would also have rested on his mother’s statement of residency.)

In other words, Cruz’s passport was supported by one of those suspect affidavits; you know, the sort that are deemed completely untrustworthy for voting purposes by the Arizona legislature. In fact, Cruz’s citizenship-proving passport would only have needed a “statement” from his mother, rather than the stricter averment “under penalty of perjury” as required by the NVRA and the Supreme Court. So sure, a passport is a document, but it can’t be any more reliable than the unsworn statements that produced it.

Sen. Cruz would probably get very upset if anybody questioned his mother’s word, but that is just the point. Eleanor Darragh Cruz is no more inherently credible than an average person. If her simple statement was sufficient to confer citizenship on her foreign born son, then a similar statement ought to be enough to allow an aspiring voter to register in Arizona or Texas.

Of course, there is no real reason to doubt Ted Cruz’s citizenship, and I do not want to suggest otherwise. But that does not mean it would be easy for him to provide actual documentation if anybody demanded that sort of proof – especially if we disallowed the averments of his mother. To be sure, Cruz is a remarkably driven individual – highly successful at a young age – who could no doubt dig up as much accurate evidence as needed to maintain his Senate seat.  Ordinary people, however, will usually lack Cruz’s knowledge, time, and resources.  Even a passport costs $165.  How much effort and expense is it reasonable to demand from folks who only want to vote?

As a legal matter, you might think it is obvious that Congress would set the standards for federal elections, as in fact it did when passing the National Voter Registration Act of 1993 (NVRA). And that is just what the Supreme Court held, in a 7-2 opinion that was written by Justice Antonin Scalia. As Scalia put it, in Arizona v. Intertribal Council,  the Constitution gives Congress the authority “to provide a complete code for congressional elections [including] regulations re­lating to ‘registration.’” And because the NVRA calls only for an affidavit of citizenship, Arizona could not tack on an additional requirement of further documentation.

As for Cruz personally, the fact is inescapable that his citizenship – solid as it is – ultimately rests on his mother’s say-so. That’s plenty good enough for me, and it is evidently quite good enough for the United States Senate. I only wish Sen. Cruz would recognize as much when it comes to letting other people vote.

Steven Lubet

Steven Lubet is the Williams Memorial Professor of Law at Northwestern. He is the author of "John Brown’s Spy: The Adventurous Life and Tragic Confession of John E. Cook" (Yale University Press, 2012) More Steven Lubet.

You Might Also Like

More Related Stories

Featured Slide Shows

7 motorist-friendly camping sites

close X
  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 9

Sponsored Post

  • White River National Forest via Lower Crystal Lake, Colorado
    For those OK with the mainstream, White River Forest welcomes more than 10 million visitors a year, making it the most-visited recreation forest in the nation. But don’t hate it for being beautiful; it’s got substance, too. The forest boasts 8 wilderness areas, 2,500 miles of trail, 1,900 miles of winding service system roads, and 12 ski resorts (should your snow shredders fit the trunk space). If ice isn’t your thing: take the tire-friendly Flat Tops Trail Scenic Byway — 82 miles connecting the towns of Meeker and Yampa, half of which is unpaved for you road rebels.
    fs.usda.gov/whiteriveryou


    Image credit: Getty

  • Chattahoochee-Oconee National Forest via Noontootla Creek, Georgia
    Boasting 10 wildernesses, 430 miles of trail and 1,367 miles of trout-filled stream, this Georgia forest is hailed as a camper’s paradise. Try driving the Ridge and Valley Scenic Byway, which saw Civil War battles fought. If the tall peaks make your engine tremble, opt for the relatively flat Oconee National Forest, which offers smaller hills and an easy trail to the ghost town of Scull Shoals. Scaredy-cats can opt for John’s Mountain Overlook, which leads to twin waterfalls for the sensitive sightseer in you.
    fs.usda.gov/conf


    Image credit: flickr/chattoconeenf

  • Nordhouse Dunes Wilderness Area via Green Road, Michigan
    The only national forest in Lower Michigan, the Huron-Mainstee spans nearly 1 million acres of public land. Outside the requisite lush habitat for fish and wildlife on display, the Nordhouse Dunes Wilderness Area is among the biggest hooks for visitors: offering beach camping with shores pounded by big, cerulean surf. Splash in some rum and you just might think you were in the Caribbean.
    fs.usda.gov/hmnf


    Image credit: umich.edu

  • Canaan Mountain via Backcountry Canaan Loop Road, West Virginia
    A favorite hailed by outdoorsman and author Johnny Molloy as some of the best high-country car camping sites anywhere in the country, you don’t have to go far to get away. Travel 20 miles west of Dolly Sods (among the busiest in the East) to find the Canaan Backcountry (for more quiet and peace). Those willing to leave the car for a bit and foot it would be remiss to neglect day-hiking the White Rim Rocks, Table Rock Overlook, or the rim at Blackwater River Gorge.
    fs.usda.gov/mnf


    Image credit: Getty

  • Mt. Rogers NRA via Hurricane Creek Road, North Carolina
    Most know it as the highest country they’ll see from North Carolina to New Hampshire. What they may not know? Car campers can get the same grand experience for less hassle. Drop the 50-pound backpacks and take the highway to the high country by stopping anywhere on the twisting (hence the name) Hurricane Road for access to a 15-mile loop that boasts the best of the grassy balds. It’s the road less travelled, and the high one, at that.
    fs.usda.gov/gwj


    Image credit: wikipedia.org

  • Long Key State Park via the Overseas Highway, Florida
    Hiking can get old; sometimes you’d rather paddle. For a weekend getaway of the coastal variety and quieter version of the Florida Keys that’s no less luxe, stick your head in the sand (and ocean, if snorkeling’s your thing) at any of Long Key’s 60 sites. Canoes and kayaks are aplenty, as are the hot showers and electric power source amenities. Think of it as the getaway from the typical getaway.
    floridastateparks.org/longkey/default.cfm


    Image credit: floridastateparks.org

  • Grand Canyon National Park via Crazy Jug Point, Arizona
    You didn’t think we’d neglect one of the world’s most famous national parks, did you? Nor would we dare lead you astray with one of the busiest parts of the park. With the Colorado River still within view of this cliff-edge site, Crazy Jug is a carside camper’s refuge from the troops of tourists. Find easy access to the Bill Hall Trail less than a mile from camp, and descend to get a peek at the volcanic Mt. Trumbull. (Fear not: It’s about as active as your typical lazy Sunday in front of the tube, if not more peaceful.)
    fs.usda.gov/kaibab


    Image credit: flickr/Irish Typepad

  • As the go-to (weekend) getaway car for fiscally conscious field trips with friends, the 2013 MINI Convertible is your campground racer of choice, allowing you and up to three of your co-pilots to take in all the beauty of nature high and low. And with a fuel efficiency that won’t leave you in the latter, you won’t have to worry about being left stranded (or awkwardly asking to go halfsies on gas expenses).


    Image credit: miniusa.com

  • Recent Slide Shows

  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 9

Related Videos

Comments

 102 Comments

Comment Preview

Your name will appear as username ( settings | log out )

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>

follow salon

Most Read

Popular on Reddit

links from salon.com

From Around the Web

Presented by Scribol
listener_new_rect The Listener: "The Joker": Laughing at life's deepest sorrows