Originally Posted by For the Congressional Research Service, Atty. Jack Maskell
Concerning the production or release of an original birth certificate, it should be noted that there is no federal law, regulation, rule, guideline, or requirement that a candidate for federal office produce his or her original birth certificate, or a certified copy of the record of live birth, to any official of the United States Government; nor is there a requirement for federal candidates to publicly release such personal record or documentation.(2) Furthermore, there is no specific federal agency or office that "vets" candidates for federal office as to qualifications or eligibility prior to election.(3)
The mechanics of elections of federal officials within the several states are administered under state law.(4) The quadrennial presidential election, although required since 1845 to be held on the same day in each state(5) is, in an administrative and operational sense, fifty-one separate elections in the states and the District of Columbia for presidential electors. States generally control, within the applicable constitutional parameters, the administrative issues, questions, and mechanisms of ballot placement and ballot access.(6)
State election officials under some state ballot laws might thus require candidate "statements" or "declarations" of candidacy attesting to and/or certifying certain facts as a condition to be on the ballot; in other states, representatives of the established political parties may certify names to the Secretary of State, or the designated elections official may place viable or "recognized" candidates on the presidential preference ballots.(7) In such cases, opposing political candidates or political parties may have "standing" to legally challenge the placement of a name of an opponent on the ballot,(8 ) or state law may specifically provide for a procedure for timely protests to be filed concerning the qualifications of candidates.(9) Additionally, the relevant election official in the state, such as the Secretary of State, may have authority to exercise discretion to challenge a self-certification or a certification by a political party of a candidate whom the election official believes is not eligible for the office. It would appear to be a matter of state law and interpretation as to whether election officials in a particular state have discretionary authority to question the certification of a party's nominated candidate, or even a self-certification of a candidate, if such election officials were presented with actual probative, documentary evidence to rebut any presumed or self-certified eligibility. In Keyes v. Bowen, the California Supreme Court dismissed a suit against the Secretary of State which challenged President Obama's eligibility and the California electoral votes for him, finding that: "Petitioners have not identified any authority requiring the Secretary of State to make an inquiry into or demand detailed proof of citizenship from Presidential candidates," and thus mandamus (a writ of mandate) was not granted.(10) However, although no "ministerial duty" or mandatory requirement exists to support a mandamus action, there may still exist discretionary authority in such elections official.(11)
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2 In addition to the "natural born Citizen" requirement for President, a United States Senator must be a "citizen" of the United States for nine years (Art. I, Sec. 3, cl. 3), and a United States Representative must be a "citizen" for seven years (Art. I, Sec. 2, cl. 2). No general requirement exists for candidates to the United States Senate or House of Representatives to produce an original, or a certified copy of a birth certificate.
3 The Federal Election Commission is authorized by law to administer and seek compliance with the campaign finance provisions of federal law for candidates to federal office, and to administer and seek compliance with the provisions for public financing of the nomination and election of candidates for President, but has no duties or responsibilities with respect to judging or verifying qualifications or eligibility of candidates to federal office. 2 U.S.C. § 437c.
4 Article II, Section 1, cl. 2, delegates authority to state legislatures to direct the manner of appointment of electors for President; and Article I, Section 4, cl. 1, delegates to the state legislatures the initial authority for the "Times, Places, and Manner" of elections to Congress, with residual authority in Congress to make such regulations.
5 5 Stat. 721, Ch. 1, January 23, 1845; see now 3 U.S.C. § 1.
6 Storer v. Brown, 415 U.S. 724 (1974); Jenness v. Fortson, 403 U.S. 431 (1971); Bullock v. Carter, 405 U.S. 134, 145 (1972); Lugin v. Panish, 415 U.S. 709, 719 (1974); Anderson v. Celebresze, 460 U.S. 780 (1983); Williams v. Tucker, 382 F. Supp. 381, 387-388 (M.D.Pa. 1974).
7 See, e.g., Senate Rules and Administration Committee, Nomination and Election of the President and Vice President of the United States, 2000, S. Doc. 106-16 (January 2000).
8 Texas Democratic Party v. Benkiser, 459 F.3d 582, 585-588 (5th Cir. 2006), Application for Stay to Supreme court, denied., No. 06-A-139 (2006), regarding ballot placement of a "substitute" opposition candidate under state law, and the constitutional "eligibility" of the original candidate; see also Fulani v. Hogsett, 917 F.2d 1028, 1030 (7th Cir. 1990), finding standing of opposition party to challenge ballot placement of opposing candidates; Schulz v. Williams, 44 F.3d 48, 52-53 (2d Cir. 1994) (discussion of "competitors' standing" in a political context).
9 Note, e.g., Ohio Revised Code, § 3513.05 (formerly Ohio Gen. Code § 4785-70), and McGowan v. Board of Elections, 105 N.E.2d 639 (Ohio 1952), appeal of voter protest of citizenship qualification in statement of candidacy of a federal candidate.
10 Keyes v. Bowen, Case No. 34-2008-80000096-CU-WM-GDS, Slip op. at 2 (Sup. Ct. Cal, March 13, 2009). Emphasis added.
11 See, for example, unreported case of Cleaver v. Jordan, Case no. 7838 (Calif. Supreme Court minutes, Sep. 26, 1968) cert. denied, 393 U.S. 810 (1968), where California court reportedly upheld discretionary authority of Secretary of State not to list ineligible candidate for President on the ballot; and Jenness v. Brown, also unreported, case no. civil 72-204 (S.D. Ohio Sep. 27, 1972), concerning ballot placement of an ineligible candidate in Ohio.