New York’s Board of Elections Refuses to Correct Inaccurate Presidential Eligibility Term

by Sharon Rondeau

(Feb. 10, 2024) — Over more than a decade and a half, New York State citizen, Navy veteran and registered voter Robert C. Laity has attempted to see rectified the incorrect statement on the New York State Board of Elections (NYSBOE) website that one of three presidential eligibility criteria expressed in Article II, Section 1, clause 5 of the U.S. Constitution is “born a citizen.”

Rather, the clause states the requirement as “natural born Citizen,” prompted, at least in part, by a letter future New York Governor John Jay wrote to George Washington in July 1787, when the latter was presiding over the Constitutional Convention in Philadelphia to produce a permanent replacement for the Articles of Confederation.

Previous to his current complaint to the NYSBOE, Laity has filed numerous actions in state, federal and administrative courts challenging the presidential eligibility of Kamala Harris; former Louisiana Governor Bobby Jindal; U.S. Senator from Texas Ted Cruz; U.S. Senator from Florida Marco Rubio; Barack Obama; and the late Sen. John McCain.

Although he did not sue the NYSBOE, in 2019 Laity made that body aware of his past legal challenges asserting the above individuals did not meet the “natural born” eligibility criterion for president.

At the time, Laity added, “The NY State Board was apprised eleven years ago of the misrepresentation of eligibility criteria on it’s website. The States continued refusal to correct that error after eleven years is malfeasant.”

In 2021, Laity undertook a letter-writing campaign to all 535 members of Congress suggesting they craft a constitutional amendment to define “natural born Citizen” in the wake of considerable controversy and pushback from the mainstream press on the Founders’ intended meaning of the term.

At long last on Friday, Laity received a written response to his most recent complaint filed on January 2 not only with the NYSBOE, but also with the state’s Division of Election Law Enforcement, Laity’s local district attorney and New York State Attorney General Letitia James’s office.

“Over fifteen years ago, during the 2008 Federal Elections I formally notified the NYS BOE that they were misstating the criteria for being elected as President of the United States,” Laity wrote in his narrative in Section 3 of the complaint form. ”The site cited being ‘Born a Citizen’ as one of the criteria for becoming President. The actual criteria is that one be a ‘Natural Born Citizen’. As of TODAY, the BOE CONTINUES to misrepresent the US Constitutional mandatory requirement that a President and VP be a ‘Natural Born Citizen’ by having substituted that criteria with ‘Born a Citizen’. The two terms of art are NOT Tantamount. A natural born citizen IS ‘One born in the United States to parents who are both US Citizens themselves’- Minor v. Happersett, USSCt. (Unanimous, 9-0) (1874). The term of art ‘Born a Citizen’ can and does include people merely born on US Soil without regard to the citizenship of the parents. THIS ILLEGALLY STATED MISREPRESENTATION by the NY State Board of Elections CONTINUES TO THIS DAY. See: ‘Follow-up to NYSBOE Misstatement of Presidential eligibility’:
https://www.thepostemail.com/2023/12/12/follow-up-to-nysboe-misstatement-of-presidential-eligibility/
THIS INFORMATION IS BEING SIMULTANEOUSLY PROVIDED TO THE ATTORNEY GENERAL OF NY STATE AND THE DISTRICT ATTORNEY OF ALBANY AND ERIE COUNTIES, NY, ET AL.”

The email reply Laity received from the NYSBOE on Friday states:

Please find attached the Division of Election Law Enforcement’s determination in response to the complaint you submitted.

We thank you for bringing this matter to our attention and assure you that all complaints received by the Division are treated as serious matters.

In the attachment addressing Laity’s concern, Chief Enforcement Counsel Michael L. Johnson conceded the wording on the Board of Elections’ website, specifically the “webpage” titled, “Running for Office,” and a “guidebook” titled, “Running for Elected Office in New York State,” is imprecise but justified it by quoting from the booklet’s preface proffering the disclaimer, “information posted…is not used as a substitute for…specific petition requirements…”

The Post & Email found Johnson’s reference was to the “Guidance, Petition Information” section at the bottom of the “Running for Office” page and the first item, “Petitions Overview.” The first paragraph therein reads:

The information contained here is intended to provide general guidance for those who are preparing to circulate petitions, and is not to be used as a substitute for consulting the Election Law for specific petition requirements.

Johnson then addressed Laity’s interpretation of “natural born Citizen” by presenting the Board’s own version of the meaning, relying on a 2015 article published in the Harvard Law Review Forum by Neal Katyal and Paul Clement, both former solicitors general of the United States during different administrations. Often cited here by legal scholar Joseph DeMaio, the authors posit that a “natural born Citizen” includes a person born overseas to a single U.S.-citizen parent, relying on the repealed 1790 Naturalization Act, a fact the authors did not disclose in their oft-cited tome.

Johnson claims that “when adopting the U.S. Constitution, courts and other literature point to the meaning of a natural born citizen, as to include those born outside of the U.S., so long as at least one parent is a U.S. Citizen,” but he does not explain how “courts and other literature” “adopted” the U.S. Constitution. Rather, the courts are a creation of the U.S. Constitution’s Article III.

The Katyal/Clement article is the only source Johnson cited other than the same case Laity invoked, Minor v. Happersett, an 1874 U.S. Supreme Court case dealing primarily with voting rights. The court’s opinion did not affirm that children born to non-U.S.-citizen parents, within or outside the country, were, in fact, “natural born Citizens” or even, for that matter, U.S. citizens themselves. Instead, the court’s opinion stated:

…The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens…

It is the editor’s surmise that artificial intelligence (AI) was likely involved in crafting Johnson’s response based on interactions with the tool which she, Laity and others have had.

In the following paragraph, Johnson referred to a statute within the body of New York State election law, Section 6, #102 (p. 229 of 936 here), which states, in full:

Party nominations of candidates for the office of elector of president and vice president of the United States, one for each congressional district and two at large, shall be made by the state committee.

Yet another reference is to a lawsuit filed by the late Christopher Strunk which Johnson said “accused NYSBOE of failing to ascertain that President Obama was a natural-born citizen.”

The case, Strunk v. New York State Board of Elections, named not only the NYSBOE as a defendant, but also then-U.S. Senator John McCain; the Working Families Party of New York State; The New York State Republican State Committee; Democratic State Committee of the State of New York; then-New York Gov. Andrew Cuomo, and many other individuals and entities.

Strunk was unsuccessful in his complaint accusing the defendants of “fraud” in regard to the presidency and 2012 candidacy of Barack Hussein Obama.

The court’s opinion, Johnson’s missive states, was that “federal courts and state courts have no role” in “the Electoral College and its voting procedures for the president.”

“…based on the foregoing, this matter is closed with no further enforcement action,” Johnson’s letter concludes.