“WE’RE INTERESTED IN WHETHER THE GUY IS A NATURAL BORN CITIZEN”
by Sharon Rondeau
(Apr. 11, 2016) — A hearing was held at the Office of Administrative Law in Mercerville, NJ on Monday morning resulting from two challenges filed against the presidential candidacy of Sen. Ted Cruz, who was born in Canada and, the challengers contend, is not a “natural born Citizen” as required by Article II, Section 1, clause 5 of the U.S. Constitution.
Apuzzo represented a group of three New Jersey citizens, with the second challenger write-in presidential candidate Victor Williams of Maryland.
The Post & Email interviewed Williams on Saturday. Apuzzo told us that the two challenges were “consolidated” and that he argued first of the two.
Of the hearing, which lasted two hours, Apuzzo began by stating, “I thought it went well.”
“Cruz filed an opposition asking that the whole thing be dismissed, so he had to go first. But we took one issue at a time. We started with ‘standing,’ then we went to ‘political question,’ then we went to ‘natural born Citizen.’ So when Cruz argued ‘standing,’ I argued ‘standing,’ then Professor Williams argued ‘standing.’ Then we repeated that for ‘political question’ and ‘natural born Citizen.’
Administrative Law Judge Jeffrey Masin presided, who Apuzzo noted was the same judge who heard his ballot challenge to Barack Hussein Obama four years ago nearly to the day. “This is a different case from Obama’s case,” Apuzzo told us. “In the other case, the judge said that Obama did not have the burden of proof. They conceded that there was no evidence of who Obama was or where he was born. Then the judge came out with his famous line that ‘Mickey Mouse could run for president.’ It was just unbelievable.”
Apuzzo then explained the three-pronged process of declaring oneself a candidate for office in the Garden State. “In New Jersey, first you have to certify that you are eligible to the office. Second, you have to consent to stand for that particular office, and finally, you have to accept that if you get the nomination, you’re going to take it. What happens is when it comes to the president, he doesn’t have to consent to stand for the nomination. Because of that, they declared that he doesn’t have to certify that he’s eligible. But if he’s not eligible, it doesn’t matter whether or not he’s certifying it.”
Apuzzo continued, “That makes perfect sense, because can you imagine… he would have to consent in every state. But if he’s eligible or not eligible? That can’t disappear.
Of Masin’s approach to the arguments presented by both sides, Apuzzo told us:
The judge was scratching his head because the lawyer for Cruz said, “Well, judge, you already decided this four years ago, that there’s no burden (of proof).” However, I was not willing to concede that Cruz was born to a U.S.-citizen mother, because the judge wanted me to concede that. I told the judge, “I’m not saying he’s not, but he has the burden. Why doesn’t he just conform with a little paperwork? There are rumors that she (Cruz’s mother) was registered to vote in Canada…I don’t know. It’s a very complex thing.” I said, ‘I’m not willing to concede that. I think he has a burden to satisfy that particular condition, but that doesn’t make him a natural born Citizen in any event.”
I said to the judge, “If someone is 20 years old, do you mean to tell me that the Secretary of State can’t do anything about that? This person is good to go; they don’t have to be eligible?” The president has to be 35 years old. So the judge started scratching his head and said, “You know something? Maybe it was different four years ago.” I said, “Back then, there was a dispute as to where Obama was born; here, there’s no dispute. Cruz was born in Canada. We know the facts, and the law says he has to be eligible.”
Apuzzo told us that Shalom Stone, Cruz’s attorney, included a two-and-one-half-page footnote in his brief with “every case under the sun with Obama and Cruz saying that nobody has standing.” “He was arguing political question but he sneaked in a footnote on standing,” Apuzzo said. “Those are two different things.”
“I addressed both issues. He put in two issues: one is political question, and the other is that he’s a natural born Citizen. But he sneaked in standing under political question, which is a different thing.
We talked about standing. I said, “Judge, the lawyer has this killer footnote. It’s not going to be possible for you to read all the cases that are in there by the time you have to render a decision, which is tomorrow,” and he said, “Well, my law clerk is going to have to help me.” And I said, “It’s not going to be humanly possible, but don’t worry about it, because most of it is not relevant.r
He hasn’t shown that New Jersey follows the federal standard under Article III. New Jersey doesn’t follow that. Some states in the country adopt the federal standard; some don’t. I said, “New Jersey is very liberal in that respect,” and the judge agreed with that. He said, “New Jersey has pretty liberal standing, doesn’t it?” and I said, “Absolutely; we don’t have Article III standing. Most of those cases that he’s citing there are all federal.”
Then I went into how New Jersey has a special statute that doesn’t even say a an objection must be filed by a “voter” or a “citizen;” it just says you can file an objection. I said, “Judge, it doesn’t say yo have to have a yellow hat or a green hat; it just says you can file an objection.” They were trying to knock out Williams saying that he’s not a resident or voter in New Jersey, and he said, “I have competitive standing.” He made a point to say that the statute doesn’t say you have to be a resident or a voter or anything.” I said, “Well, whatever it says, my client is a resident, he’s a citizen, he’s a voter; they got everything. They’re good to go. The state legislature said they can do it; they’re good to go; the standing is satisfied.”
I think we’re going to get standing.
The next thing was political question.
I said, “Judge, political question — that’s a red herring. It’s not a political question. Look at all the cases where the courts decide whether somebody’s a citizen or not. The elephant in the room: Wong Kim Ark, and before that, Minor (v. Happersett). And they say that was a political question? They decide whether you’re a citizen or not. Just because it’s an election year, that makes it a political question? The court’s not being asked to vote for the president. We’re not interested in who wins or who loses the election; we’re interested in whether the guy is a natural born Citizen.”
If that’s a political question, then the court can never decide anybody’s a citizen. It’s absurd.
They’re thinking, “This guy’s running for president; I’m not going to get involved in that.” But it doesn’t matter if he’s running for president; we want to know if he’s a natural born Citizen or not.
Then the Electoral College — “Oh, they’re fully committed.” I said, “Judge, the Electoral College? They’re not going to sit there and analyze what the Constitution means. They’re voters. When you’re an Elector, all you are is a voter, except that you’re voting for the president. The meaning is determined by the judiciary.”
If we can’t agree, who decides? You have to have some neutral magistrate, or we’re going to have a civil war.
It was very interesting when we got to “natural born Citizen.” But you just don’t know.
The Post & Email mentioned to Apuzzo that it has filed approximately a dozen FOIA requests in an attempt to obtain documentation on Cruz, to which Apuzzo responded, “I didn’t remember that it was you who did that, but I made a point of saying that in the hearing. I said, ‘Judge, there have been requests of this campaign to bring forward the registration, the passport. There’s no paperwork, absolutely nothing.” That’s why I’m not willing to concede that his mother was a citizen. I’m not saying that she’s not, but it’s not my burden of proof. He never really addressed that. Actually, that’s still very important; I said, “If his mother was not a citizen (at the time of his birth), then that’s it; the whole thing is over.”
A decision is expected from Masin sometime on Tuesday.
Williams was unavailable for comment for this article.