1

Carmon Elliott, pro se :

105 Elmont St. Pittsburgh, PA 15205 :

v :

Ted Cruz :

:

: 2/16/16

Pro se Petition Objecting to Ted Cruz's Nominating Papers

Jurisdiction: The Commonwealth Court has jurisdiction in matters under

the Pennsylvania Election Code involving statewide elections and the

Pennsylvania Presidential primary is a statewide election.

Introduction

Petitioner, Carmon Elliott, a registered Republican living in Pittsburgh, prays the

Commonwealth Court direct the Commonwealth Secretary set aside the nominating

papers of, Canadian born, Ted Cruz, as they were filed under false, fraudulent pretenses,

for he is not, as he claims, eligible for the Office of President, Constitutionally, for he is

not a natural born citizen. Cruz is a naturalized citizen, naturalized by

the Immigration and Nationality Act, TITLE III, CHAPTER 1, - NATIONALITY AT

BIRTH AND BY COLLECTIVE NATURALIZATION, Act 301-NATIONALS AND

CITIZENS OF THE UNITED STATES AT BIRTH (g) a person born outside the

geographical limits of the United States and its outlying possessions of parents one of

whom is an alien, and the other a citizen of the United States. 8 U.S.C. 1401(g), a law

of collective naturalization,

because of his birth in Canada. Cruz needed a law of collective naturalization to be a

citizen. Natural born citizens do not. According to several US Supreme Court decisions,

1

persons not born in the jurisdiction of the United States must be naturalized to become

citizens. Petitioner will cite them herein. Nomination papers and petitions filed for Cruz

in Pennsylvania all suffer material error because they are fraudulent, and insufficient,

based on a false pretense, that he is Constitutionally eligible for the Office of President.

Relevant Pennsylvania Statutes:

Grounds for Petitioner: 25 PS Section 2937, 3) A challenge to nominating

papers may be made by any registered elector of the district. Petitioner, Carmon Elliott, a registered Republican living in Pittsburgh.

Pennsylvania Election Code, P.L. 1333, No. 320, ARTICLE II The Secretary of the

Commonwealth, Section 201. Powers and Duties of the Secretary of the

Commonwealth.(d) To receive and determine, as hereinafter provided, the sufficiency

of nomination petitions, certificates and papers of candidates for President of the

United States..

Pennsylvania Election Code, Art. IX, Nomination of Candidates, Section

951. Nominations by Political Bodies (e) There shall be appended to each nomination

paper offered for filing an affidavit of each candidate nominated therein, stating-(3) that

he is eligible for such office;

Pennsylvania Election Code, Art IX, Sec.976- no nominating paper can be filed by the

Secretary of the Commonwealth if it contains material errors.

PA. Election Code Section 976. Examination of Nomination Petitions, Certificates and

Papers; Return of Rejected Nomination Petition, Certificates and Papers.-- No

nomination petition or nomination paper or nomination certificate shall be permitted

to be filed if-- a) it contains material errors or defects apparent on the face thereof.--

Pennsylvania Election Code, Art. IX, Sec.977-nominating papers will be considered

valid unless a petition is presented to the court specifically setting forth the objections

thereto, and praying that the said petition or paper be set aside. If the objections relate

to material errors or defects apparent on the face of the nomination paper of petition.

1

I do swear (or affirm) that my residence, my election district and the name of the

office for which I desire to be a candidate are as specified below, that I am eligible for

said office,...I swear (or affirm) to the above parts as required by the laws applicable to

the office I seek.

http://www.legis.state.pa.us/WU01/LI/LI/US/PDF/1937/0/0320..PDF

Pennsylvania election code 910, Affidavits of Candidates; each candidate shall file with

his nomination petition his affidavit stating: d) -candidates are required to sign an

affidavit affirming their eligibility for such office...

Relevant clauses of US Constitution

US Constitution's Presidential eligibility clause, Article II, Section 1, clause 5,” No person except a

natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this

Constitution, shall be eligible to the Office of President;”

US Constitution, Art 1, Section 8, clause 4, To establish an uniform Rule of

Naturalization,

Amendment XIV Section 1. All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United States and of the state

wherein they reside.

The US Constitution Article 6 of has supremacy: all state laws comport to it.This

Constitution, and the Laws of the United States which shall be made in Pursuance

thereof; and all Treaties made, or which shall be made, under the Authority of the

United States, shall be the supreme Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary

notwithstanding.

Relevant US Law

The Immigration and Nationality Act, TITLE III, CHAPTER 1, - NATIONALITY AT

BIRTH AND BY COLLECTIVE NATURALIZATION, Act 301-NATIONALS AND

CITIZENS OF THE UNITED STATES AT BIRTH (g) a person born outside the

geographical limits of the United States and its outlying possessions of parents one of

whom is an alien, and the other a citizen of the United States.

1

Relevant State Court cases

Commonwealth Court of Pennsylvania. IN RE: Nomination Petition of John R. PIPPY,

4/7/98

Supreme Court of Pennsylvania.IN RE: Nomination Papers of Ralph NADER and Peter

Miguel Camejoas Candidates of an Independent Political Body for President-:

http://caselaw.findlaw.com/pa-supreme-

Court/1457210.html#sthash.peMu8Esv.mXOzp4C5.dpuf

Relevant US Supreme Court cases

Anderson v. Celebrezze, a case decided by the U.S. Supreme Court in 1983,

Lubin v. Panish, decided by the U.S. Supreme Court in 1974,

Rogers v Bellei(1971) the Supreme Court

United States v. Wong Kim Ark the Supreme Court in 1898, Miller v. Albright, 523 U.S. Supreme Court 420, 423-424 (1998).

Minor v. Happersett , 88 U.S. 162 (1875)

US Supreme Court decision Elk v. Wilkins, 112 U.S. 94 (1884)

According to published new accounts:

“Sen. Ted Cruz (R-Texas) felt compelled to release his birth certificate. The right-wing Texan was born

in Calgary, Alberta, to an American mother, which immediately made Cruz an American citizen. And

so, late yesterday, Cruz filled out this form (pdf),renounced any claim to Canadian citizenship, and

released a written public statement.” http://www.msnbc.com/rachel-maddow-show/ted-cruz-renounces-

canadian-citizenship

Ted Cruz renounced his Canadian citizenship in 2013

http://www.washingtonpost.com/news/post-politics/wp/2013/08/19/cruz-will-renounce-canadian-

citizenship/

Cruz's birth in Canada is undisputed and an established fact. Thus, Cruz's ineligibility

1

for the Presidency and insufficiency of his nominating papers to be on Pennsylvania's

Presidential Primary are obvious on their face, with an appropriate ruling of the

Pennsylvania's Commonwealth Court, Petitioner prays for such a ruling.

Interpreting Pennsylvania Statute

Whereas Pennsylvania election code 910 Affidavits of Candidates; each candidate shall

file with his nomination petition his affidavit stating: a) his residence, with street and

number, if any, and his post office address b)his election district, giving city, boro town

or township,. c) the name of the office for which he consents to be a candidate d) -

candidates are required to sign an affidavit affirming their eligibility for such

office....yet....j) …...in the case of a candidate for nomination as President of the

United States, it shall not be necessary for such candidate to file the affidavit required

by the other candidates, but the post-office address of such candidate shall be stated in

each nomination petition

Petitioner recognizes the importance of 910 d), for a qualified ballot is integral to a free

election, however, the final clause in 910 j), precludes the opportunity of challenges to a

candidate's affidavit's declaration of eligibility for the office of President. Petitioner

claims that interferes with his 1st Amendment Free Speech to challenge and 5

th

Amendment rights to due process and the 14th Amendment equal protection. Petition

prays that Commonwealth Court agree and declares it unconstitutional, if interpreted to

mean that they aren't required to swear they are eligible for the office of President in

clause d), for that prevents a possible challenge to the veracity of said declaration.

Where then can a Pennsylvania citizen challenge the eligibility of a party's candidate if it

were, for instance, Australian-born Arnold Swarzenneger? No venue but a Secretary of

1

State's office at primary filing can implement and actualize the US Constitution's

Presidential Eligibility clause, and the Supremacy clause of the US Constitution's 6th

Amendment requires the Court accommodate the US Constitution in its interpretation of

Pennsylvania statute. Petitioner begs Pennsylvania statute must be interpreted to allow

the Constitution's Presidential Eligibility clause to be effectual, not merely decorative.

However, the Court has the wisdom and power to reason that the legislature's intention

that included that last clause in j), that exempts a Presidential candidate from filing the

same affidavit required for other candidates, did so with thought that other clauses in this

section, a),b) and c), and clauses e) -i) were irrelevant for a Presidential candidate, and

simply made a blanket statement in the last clause of J), without realizing it would

impact clause d)'s declaration of eligibility. The Court can interpret that the last clause of

Sec. 910 J) to mean that a Presidential candidate need not file the same affidavit as other

candidates, with inclusion of irrelevant information such as residence and election

district. However, Sec. 910 d)'s declaration of eligibility is essential to ensuring the

integrity of the Pennsylvania Presidential primary ballot and Presidential election.

Petitioner has scrutinized the Pennsylvania Election Code and found more stringent

eligibility requirements for voters and every other elected office than for candidates for

the Presidency if Section 910 clause d)'s declaration of eligibility does not apply to

Presidential candidates. Proof of the Legislature's intent is that it was left in

1

Pennsylvania Election Code, IX Section 951 Nominations by Political Bodies (e)I do

swear (or affirm) that my residence, my election district and the name of the office for

which I desire to be a candidate are as specified below, that I am eligible for said

office,...I swear (or affirm) to the above parts as required by the laws applicable to the

office I seek..

Whereas Pennsylvania Supreme Court has ruled that the Election Code must have equal

applicability to candidates from Major Parties as Minor Parties:

Supreme Court of Pennsylvania. IN RE: Nomination Papers of Ralph NADER and Peter

Miguel Camejo as Candidates of an Independent Political Body for President

“Further, as noted by the Commonwealth Court, establishing a lesser standard for the

Candidates likely implicates significant equal protection issues. See Commonwealth

Court Opinion dated August 30, 2004, at 8. We cannot justify applying one set of

standards to the Candidates and more exacting requirements to all other persons

seeking ballot access.”

“Because, as noted, the term “party” is defined by the Election Code, and the definition

includes both major and minor parties, I see no reason to interpret that term more

narrowly for purposes of Section 951.1 simply because the relevant time period is

defined by reference to the date on which the primary election is held.”

“In the context of a Presidential election, state-imposed restrictions implicate a uniquely

important national interest. For the President and the Vice President of the United

States are the only elected officials who represent all of the voters in the Nation․ Thus

in a presidential election a State's enforcement of more stringent ballot access

requirements, including filing deadlines, has an impact beyond its own borders.” - See

more at: http://caselaw.findlaw.com/pa-supreme-court/1457210.html#sthash.peMu8Esv.dpuf

Lubin v. Panish, decided by the U.S. Supreme Court in 1974, held that, absent alternative means of ballot access, states cannot require indigent candidates to pay filing fees they cannot afford. To do so violates the Equal Protection Clause of the Fourteenth Amendment, as well as the rights of expression and association guaranteed by the First and Fourteenth Amendments of the U.S. Constitution.[10]

Anderson v. Celebrezze, a case decided by the U.S. Supreme Court in 1983, held that Ohio's early filing deadline for independent presidential candidates violated the First and Fourteenth Amendments of the U.S. Constitution, placing an

1

unconstitutional burden on the voting and associational rights of supporters of independent presidential candidates.

Petitioner begs the Court require all candidates sign the same, more stringent,

declaration of eligibility as the Political Body Candidate's affidavit, as required by

Section 951(e), or, recognize the candidate's filing as such affirmation, it itself.

Petitioner notes Republican Presidential candidates don't need to file any such affidavit

declaring their eligibility. Petitioner claims that negates his 1st Amendment rights to

challenge a candidate's declaration of eligibility, his 5th Amendment rights to due process

as well as 14th

Amendment equal protection guarantees. Petitioner pleads the

Commonwealth Court can grant that relief by requiring all candidates to sign the same,

more stringent, declaration of eligibility as the Political Body's affidavit, Sec. 951(e), or,

by recognizing that the act of filing nominating papers for the Office of President is an

equivalent, tacit, sworn declaration of eligibility in itself.

Pro se Petitioner has found a Commonwealth Court case describing the essential right

and need to challenge a candidate's declaration of eligibility:

http://caselaw.findlaw.com/pa-commonwealth-court/1318043.html …..case re: eligibility of

candidate, Commonwealth Court of Pennsylvania.IN RE: Nomination Petition of John

R. PIPPY,

“The provisions of the Election Code relating to the form of nominating petitions and

the accompanying affidavits are not mere technicalities, but are necessary measures to

prevent fraud and to preserve the integrity of the election process. In re Cianfrani, 467

Pa. 491, 359 A.2d 383 (1976);  In re Carlson, 60 Pa.Cmwlth. 170, 430 A.2d 1210 (1981),

aff'd, 494 Pa. 139, 430 A.2d 1155 (1981). The requirements of sworn affidavits in the

1

Election Code are to insure the legitimacy of information crucial to this process.

Cianfrani. Thus, the policy of liberal reading of this statute cannot be distorted to

emasculate those requirements necessary to assure the probity of the election process.”

Id.

“We now make clear that the judiciary has jurisdiction over a challenge to the

constitutional qualifications of a candidate for the General Assembly only prior to his or

her election, whether that candidate was nominated by his or her party at a primary

election, chosen by the political party to replace a nominated candidate, or is an

independent candidate whose name is on the ballot by way of having circulated

nominating papers.”

“In its present form, section 910 requires a candidate for state office to file with his

nomination petition an affidavit stating, inter alia, “that he is eligible for such office”.

25 P.S. § 2870. In addition, as presently enacted, section 977 states, in pertinent part:

All nomination petitions and papers received and filed ․ shall be deemed to be valid,

unless ․ a petition is presented to the court specifically setting forth the objections

thereto, and praying that the said petition or paper be set aside․ If the court shall find

that said nomination petition or paper is defective under the provisions of section 976 [8]

․ it shall be set aside. If the objections relate to material errors or defects apparent on

the face of the nomination petition or paper, the court, after hearing, may, in its

discretion, permit amendments within such time and upon such terms as to payment of

costs, as the said court may specify.”

“Reading all of the foregoing sections of the Election Code, and giving effect to all of

these provisions, it is apparent that this court has jurisdiction to consider the Objectors'

petition. Under section 910, the Candidate was required to execute the candidate's

affidavit and swear or affirm, inter alia, that he was eligible for the office of State

Representative. As the Pennsylvania Supreme Court has previously determined, an

affidavit executed pursuant to section 910 that contains a false statement “must be at

least equated with the failure to execute the affidavit”, and renders the candidate's

nomination petition “void and invalid”.” Cianfrani, 467 Pa. at 494, 359 A.2d at 384

(emphasis in original).

“Under section 977, the Candidate's nomination petition would be presumed to be valid

unless the Objectors presented the instant petition to this court specifically setting forth

this alleged patent defect. In addition, based on the incorporation of section 976,

section 977 requires this court to set aside the Candidate's nomination petition if we find

any material errors or defects on the face of the nomination petition or the appended or

accompanying affidavits. Clearly, such a patent material error or defect, if proven,

could compel this court to set aside the Candidate's nomination petition.”

“Section 3 of the Act of April 18, 1995, P.L. 5, No. 4 (Act 4 of 1985), and by amending

1

Section 977 of the [Election] Code to provide, that if this Court finds:

any accompanying or appended affidavit [to a nomination petition] contains a material

defect or error, it shall be set aside. For purposes of this section, a nomination petition

or paper shall include all affidavits required to be filed with such nomination petition or

paper under this Act.”

Whereas in US Supreme Court decision Elk v. Wilkins, 112 U.S. 94 (1884) The

Supreme Court refers to and quotes from the Constitution's Presidential eligibility clause

in distinguishing types of citizens, citing and quoting from the Constitution's

Presidential eligibility clause,

"No person, except a natural born citizen or a citizen of the United States at the time

of the adoption of this Constitution shall be eligible to the office of President," and

"The Congress shall have power to establish an uniform rule of naturalization."

Constitution, Article II, Section 1; Article I, Section 8. ....This section contemplates

two sources of citizenship, and two sources only: birth and naturalization. The

persons declared (Page 112 U. S. 102)to be citizens are "all persons born or

naturalized in the United States, and subject to the jurisdiction thereof”The evident

meaning of these last words is not merely subject in some respect or degree to the

jurisdiction of the United States, but completely subject to their political jurisdiction

and owing them direct and immediate allegiance. And the words relate to the time of

birth in the one case, as they do to the time of naturalization in the other. Persons not

thus subject to the jurisdiction of the United States at the time of birth cannot become

so afterwords except by being naturalized, either individually, as by proceedings under

the naturalization acts, or collectively,"

https://supreme.justia.com/cases/federal/us/112/94/case.htm

Whereas St. George Tucker, (known for editing Blackstone's Commentaries on the Laws

of England (Phil.1803) to put them in an American context), says in a footnote about

naturalized citizens:

"Persons naturalized according to these acts (Congressional Acts of Naturalization), are

1

entitled to all the rights of natural born citizens, except, first, that they cannot be elected

as representatives in Congress until seven years, thereafter. Secondly, nor can they be

elected Senators of the United States, until nine years thereafter. Thirdly, they are

forever incapable of being chosen to the office of president .https://en.wikipedia.org/wiki/St._George_Tucker

Whereas Rep. John Bingham(later an author of the 14th Amendment) stated in the House

of Representatives in 1862:

“The Constitution leaves no room for doubt upon this subject. The words 'natural born

citizen of the United States' appear in it, and the other provision appears in it that,

"Congress shall have power to pass a uniform system of naturalization." To naturalize a

person is to admit him to citizenship. Who are natural born citizens but those born

within the Republic? Those born within the Republic, whether black or white, are

citizens by birth—natural born citizens.” http://yalelawjournal.org/images/pdfs/pryor_note.pdf

Whereas the Supreme Court said in Rogers v Bellei '71 ,"The Fourteenth Amendment of

the Constitution . . . contemplates two sources of citizenship, and two only: birth and

naturalization. Citizenship by naturalization can only be acquired by naturalization

under the authority and in the forms of law. But citizenship by birth is established by the

mere (Page 401 U. S. 841) fact of birth under the circumstances defined in the

Constitution. Every person born in the United States, and subject to the jurisdiction

thereof becomes at once a citizen of the United States, and needs no naturalization. A

person born out of the jurisdiction of the United States can only become a citizen by

being naturalized, or by authority of Congress, exercised either by declaring certain

classes of persons to be citizens” ...”Every person born in the United States, and subject

to the jurisdiction thereof becomes at once a citizen of the United States, and needs no

naturalization." https://supreme.justia.com/cases/federal/us/401/815/case.html

Minor v. Happersett , 88 U.S. 162 (1875) “ 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.” https://supreme.justia.com/cases/federal/us/88/162/case.html

. Whereas, in Miller v. Albright 523 U.S. 420 (1998),Justice Scalia wrote in a concurring

opinion, 453, "The Constitution "contemplates two sources of citizenship, and two only:

birth and naturalization." citing United States v. Wong Kim Ark, 169 U. S. 649, 702

1

(1898). Under the Fourteenth Amendment, "[e]very person born in the United States,

and subject to the jurisdiction thereof, becomes at once a citizen of the United States,

and needs no naturalization. Ibid. and can only become a citizen by being naturalized,

either by treaty, as in the case of the annexation of foreign territory; or by authority of

Congress." Id., at 702-703; see also Rogers v. Bellei, 401 U. S. 815, 827 (1971). Here it

is the "authority of Congress" that is appealed to its power under Art. I, § 8, cl. 4, to

"establish an uniform Rule of Naturalization." If there is no congressional enactment

granting petitioner citizenship, she remains an

alien." https://supreme.justia.com/cases/federal/us/523/420/case.html

Cruz was born in Canada and not born in the jurisdiction of United States, thus he is a

naturalized citizen, not a natural born citizen, as the term is defined by the United States

Supreme Court, and is therefore ineligible to be on Pennsylvania's Presidential primary

ballot because Art 2, Sec. 1, cl.5 of the US Constitution says, "only persons who are

natural born citizens.. are eligible to the office of President". While it is true that the

United States Supreme Court has yet to decide a case regarding the term natural born

citizen in a Presidential eligibility context, the Supreme Court has defined the term

natural born citizen as distinguished from naturalized citizens in a number of contexts,

clearly, consistently and unambiguously. Any court can be confident in applying the

same definition here, in a Presidential eligibility context. Therefore, plaintiff begs the

Court to keep Ted Cruz from the Presidential Primary Ballot in Pennsylvania for he is

not eligible, according to the US Constitution, because he is a naturalized citizen. The

Constitution's Presidential eligibility clause is not decorative, but needs to be actualized

by Pennsylvania's Commonwealth Court by setting aside Cruz's nominating papers. Had

1

the Political party's Candidate's Affidavit form included 910 d), it would be fatally

flawed and invalid, for being materially in error. Cruz's nomination papers are

insufficient because he is Constitutionally ineligible due to his Canadian birth, he is a

naturalized citizen, not a natural born citizen. It is undisputed that Cruz was born in

Canada and the Court and Commonwealth Secretary cannot pretend to not know that,

Petitioner has included published articles documenting that fact. On their face then,

Cruz's nomination paper's lack sufficiency.

Whereas, according to Pennsylvania Election Code Art 2, Sec.976- no nominating paper

can be filed by the Secretary of the Commonwealth if it is insufficient

The false, mistaken presumption of Cruz's Presidential eligibility in accepting

nominating papers by the Secretary of the Commonwealth does not mean he should or

can file nomination paper, if found to be fraudulent and insufficient. Had he filed an

affidavit including Sec. 910 d), a sworn declaration that he is eligible for the office of

President that would be a material error, so that cannot be filed by the Secretary of the

Commonwealth and must be set aside. Petitioner pleads the Commonwealth Court and

the Secretary of the Commonwealth need to set aside nominating papers of candidate

Cruz when a challenge demonstrates that Cruz is ineligible for the office for which he

filed, the President of the United States, and that that furthermore, signatures on all of

Cruz's nominating petitions were fraudulently obtained, based on the false assumption

that Cruz was eligible for the Office of President and must be put aside.

1

Whereas Cruz is not eligible to be on Pennsylvania's Presidential Primary ballot for he is

Constitutionally ineligible because he is a naturalized citizen, not a natural born citizen,

Petitioner prays that Commonwealth Court direct the Secretary of the Commonwealth

set aside all of Ted Cruz's nominating papers and nominating petitions.

Whereas Petitioner is aware of seemingly impressive sources for arguments Cruz's

attorneys will use, The Harvard Review(online) and the 2011 Congressional Research

Service. Petitioner will include herein his own reviews of these materials, while noting

they both are lacking in substance, and strain to reach contrived conclusions, perhaps out

of regard for their colleague Panama-born John McCain. They fail to appreciate the

effort, research, and authority of the US Supreme Court in reaching its numerous

decisions regarding distinguishing natural born citizens from naturalized citizens:

http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/

HARVARD LAW REVIEW FORUM "On the Meaning of Natural Born Citizen"

This article was remarkably superficial and disingenuous considering it was from

a prestigious source. The authors make no attempt to refer to any decision or

opinion of the US Supreme Court regarding its interpretation, which is the

ultimate legal authority on interpreting the meaning of the Constitution. Instead,

the authors offer their opinion that an archaic 1790 Law of Naturalization that

1

emphasized naturalized citizens were to be considered as natural born citizens

(meaning legally equal), justifies the conclusion that any child of a US citizen

born outside the United States is a natural born citizen.That that 1790 law was a

law of naturalization, itself and replaced in 1795 by subsequent Laws of

Naturalization was not mentioned by the authors.The 1790 Law of Naturalization

was Congress' first use of its power, granted by the Constitution to establish an

uniform Rule of Naturalization(Article 1 Section 8 Clause 4). Anyone who

obtains citizenship from an act of Congress like Cruz, is a naturalized citizen,

while those born in the jurisdiction of the US are, Constitutionally, naturally

citizens, natural born citizens. Congress has been granted the power, by the

Constitution, to establish an uniform rule of naturalization, Not the power to

make someone born outside the United States a natural born citizen.

The authors make sweeping, erroneous statements of assumed authority that

completely contradict Supreme Court decisions. For instance the authors state,

" a person born abroad to a US citizen parent is generally a US citizen from birth

with no need for naturalization." However, in

Rogers v Bellei(1971) the Supreme Court says, "A person born out of the jurisdiction of the United States can only become a citizen by being naturalized. Every person born in the United States, and subject to the jurisdiction thereof becomes at once a citizen of the United States and needs no naturalization." http://www.scribd.com/doc/74176180/Qualifications-for-President-and-the-Natural-

Born-Citizenship-Eligibility-Requirement

1

2011 The Congressional Research Service Congress sponsored this report which has the virtue of examining both sides of

the controversy over the definition of "natural born" as used in the Constitution's

Presidential eligibility clause. However, by giving scant regard to Supreme Court

decisions while citing lower court decisions and granting them more weight in

their conclusion, a pre-determined, biased finding was revealed.

This analysis seems to have been written by two authors, Congressional

staffers, with divided responsibilities, each presenting arguments on each side of

the controversy. At page 20 of the report it becomes substantive at, “Citizenship

at Birth: Case Law and Interpretation” Whom I'll call the the first author has a

much easier job, which he does well, because he has a wealth of weighty legal

opinion including from James Madison and several Supreme Court decisions,

which I'll selectively quote and underline, presenting the side of the controversy

which he calls the "narrow interpretation" of the term "natural born".

However, the second, staff-author of the Congressional Research

study, struggles to reach an erroneous conclusion he'd been told to come to,

the "broad interpretation", using sources of little legal value, including the

admonition a judge once gave to a jury and a quote from an appeals court

decision. He is unable to refer to even one Supreme Court decision to justify his

argument and instead tries to split legal hairs on whether naturalization occurs

1

at birth or after birth. Yet the Supreme Court has explicitly said,

"A person born out of the jurisdiction of the United States can only become a citizen by

being naturalized, Every person born in the United States, and subject to the jurisdiction

thereof becomes at once a citizen of the United States, and needs no

naturalization." Rogers v Bellei 401 US 815,828 (1971) In this case, "the Court has

recognized that, until the 1934 Act, the transmission of citizenship to one born abroad

was restricted to the child of a qualifying American father, and withheld completely

from the child of a United States citizen mother and an alien father."Montana v.

Kennedy, supra." Rogers v Bellei

This happens to be Cruz's situation, needing a law of naturalization to be a US citizen,

so, surely he is a naturalized citizen and not a natural born citizen eligible to be

President.

Citizenship at Birth: Case Law and Interpretations, page 24-36(which is the meat of this

article)

excerpts of 1st author of "Citizenship at Birth: Case Law and Interpretations", 2011 Congressional Research Service

"There appears to be little scholarly debate that the English common law at the time of independence included at least all persons born on the soil of England (jus soli, that is, “law of the soil”), even to alien parents, as “natural born” subjects (unless the alien parents were diplomatic personnel of a foreign nation, or foreign troops in hostile occupation). As noted by the Supreme Court of the United States, this “same rule” was applicable in the colonies and “in the United States afterwards, and continued to prevail under the Constitution” with respect to “natural born” U.S. citizenship.(5)

The Supreme Court of the United States, in its landmark opinion on birthright

citizenship authored by Justice Gray in United States v. Wong Kim Ark, citing both the common law and numerous legal precedents in the United States, explained in 1898 that a child born of alien parents within the country and subject to its jurisdiction (that is, whose parents are not diplomatic personnel representing a foreign nation or troops in hostile occupation) is considered a “natural born” citizen (in the United States) or subject (in England),(58) as that term has been used over the centuries in England and the United States: It thus

1

clearly appears that by the law of England for the last three centuries every child born in England of alien parents was a natural born subject, The Court noted “persons born within the realm, although children of alien parents, were called ‘natural-born subjects.’”(60) the Court noted Justice Story’s opinion that the principles of common law “treated it as unquestionable that by that law a child born in England of alien parents was a natural born subject.”61 The Court referenced with approval an earlier decision of a federal circuit court, written by Supreme Court Justice Swayne sitting on circuit, explaining that “the rule of the common law” of England, and now “of this country, as well as in England,” is that “all persons born in the allegiance of the United States are natural born citizens. . James Madison, often referred to as the “Father of the Constitution,” expressly explained in the House of Representatives in the First Congress, in 1789, that with regard to citizenship the “place” of birth, and not “parentage” was the controlling concept adopted in the United States. Additionally, the Supreme Court in Roger v Bellei (1971) simply and succinctly explained, after citing historical legal precedent: “We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, the place of birth governs citizenship status except as modified by statute.”(112) Again in 1998, the Supreme Court expressly recognized jus soli, the place of birth, as controlling in the United States, noting that in this country “citizenship does not pass by descent” except as provided by Congress in statute.” “Although the Supreme Court ...for more than a century have used the term “natural born citizen” to describe a person born in this country and under its jurisdiction, ... Additionally, several Supreme Court cases, as well as numerous constitutional scholars, have used the term “native born” citizen to indicate all of those children physically born in the country (and subject to its jurisdiction), without reference to parentage or lineage, and employed such term in reference to those citizens eligible to be President under the “natural born” citizenship clause, as opposed to “naturalized” citizens, who are not.”

“The Constitution itself does not make the citizens; it is, in fact, made by them. It only intends and recognizes such of them as are natural—home-born; and provides for the naturalization of such of them as were alien—foreign born ....” “I have no better title to the citizenship which we enjoy than the “accident at birth”—

the fact that we happened to be born in the United States. And our Constitution, in

1

speaking of natural-born citizens, uses no affirmative language to make them such, but

only recognizes and reaffirms the universal principle ... that the people born in a country

do constitute the nation, and, as individuals, are natural members of the body

politic....[I]t follows that every person born in the country is, at the moment of birth,

prima facie a citizen; and he who would deny it must take upon himself the burden of

proving some great disfranchisement strong enough to override the “natural-born” right

as recognized by the Constitution ...”

“the Court explained: 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,”

“in 1898, in United States v. Wong Kim Ark, ...holding, that every person born in the

United States and subject to its jurisdiction (that is, not the child of foreign diplomats or

of troops in hostile occupation), regardless of the citizenship of one’s parents, is a

“natural born” citizen, and that the Fourteenth Amendment merely affirmed the common

law and fundamental rule in this country that one born on the soil of the United States

and subject to its jurisdiction is a “natural born” citizen:

As explained by the Supreme Court in 1998: There are “two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person “born in the United

States, subject to the jurisdiction thereof, becomes at once a citizen of the United States,

and needs no naturalization.” 169 U.S. at 702. Persons not born in the United States

acquire citizenship by birth only as provided by Acts of Congress. Id. at 703.(*135) The

interpretation that one who obtains “citizenship by birth” is a “natural born” citizen

eligible to be President, as distinguished from one who derives “citizenship by

naturalization” and who is not so eligible, was discussed by the Supreme Court as early

as 1884: The distinction between citizenship by birth and citizenship by naturalization is

clearly marked in the provisions of the Constitution, by which “no person, except a

natural-born citizen, or a citizen of the United States at the time of the adoption of this

Constitution, shall be eligible to the office of President;” and “the Congress shall have

the power to establish an uniform rule of naturalization.” Constitution, art. 2, Sec.1, Art. 1, sect. 8.(136)” 135 Miller v. Albright, 523 U.S. 420, 423-424 (1998). See also Scalia, J. and Thomas, J., concurring: “The Constitution ‘contemplates two sources of citizenship, and two only: birth and naturalization.’” When one is born “in” the United States and “subject to the jurisdiction” of the United States that person becomes a citizen “at birth,” that is, “becomes at once a citizen of the United States, and needs no naturalization.” 523 U.S. at 461, citing Wong

1

Kim Ark, 169 U.S. at 702.” “It should be noted that numerous constitutional scholars and commentators have used the term “native born” or “native citizen” in a manner which might in some contexts be considered synonymous with “natural born,” to indicate a U.S. citizenship from birth in relation to Presidential eligibility, and to distinguish such eligibility from one who is a “naturalized” citizen. James Kent, for example, in his Commentaries on American Law, explained: “As the President is required to be a native citizen of the United States, ambitious foreigners can not intrigue for the office, and the qualification of birth cuts off all those inducements from abroad to corruption, negotiation, and war....”142 Similarly, Justice Joseph Story used the term “native citizen” in a treatise on the Constitution: “It is not too much to say that no one but a native citizen, ought ordinarily to be entrusted to an office so vital to the safety and liberties of the people.”(143) The Supreme Court of the United States has on several occasions also used the terminology “native born” citizens or “native” citizens to distinguish such citizenship “at birth” from those who have obtained U.S. citizenship through “naturalization.” Even considering that the Court was using the terms in a narrow sense, and putting aside for the moment the issue of children born abroad of U.S. citizens, it is clear that the Supreme Court in these instances indicated that, at the

least, all of those persons obtaining citizenship by birth within the geographic area of the

United States (i.e., “native born” citizens) were eligible for the presidency (as being

within the category of “natural born” citizens), as opposed to “naturalized” citizens. In

Schneider v. Rusk, the Supreme Court appeared to use the term “native born” as

synonymous and interchangeable with the term “natural born” in referencing those

citizens eligible for the presidency, as opposed to “naturalized” citizens who are not

eligible: "We start with the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the “natural born” citizen is eligible to be President. Art. II, § 1." “A similar distinction between “naturalized” citizens who are not eligible to the Presidency, and those who are “native” citizens (that is, those who are citizens by birth in the country) who are eligible was made in the earlier Supreme Court case of Luria v. United States: "Citizenship is membership in a political society, and implies a duty of allegiance on the part of the member and a duty of protection on the part of society. These are reciprocal obligations, one being a compensation for the other. Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency. The Supreme Court in 1929, in United States v. Schwimmer, had stated in a similar manner that “Except for eligibility to the Presidency, naturalized citizens

1

stand on the same footing as do native born citizens,”(148) and noted again in 1931 that, “The alien, when he becomes a naturalized citizen, acquires, with one exception, every right possessed under the Constitution by those citizens who are native born.”United States v. MacIntosh, 283 U.S. 605, 623-624 (1931)(149) “Although a small faction of advocates now apparently attempt to cast doubt as to whether every native born U.S. citizen is a “natural born” citizen under the Constitution, all doubt in the judicial arena has been resolved for more than a century in favor of “natural born” status of such individuals who are citizens “by birth” or “at birth” (as having been born in and under the jurisdiction of the United States). As discussed in more detail in the following section of this report, there have been some legitimate legal arguments and varying opinions about the status of foreign born children of U.S. citizens as being either “natural born” citizens under common law principles, or citizens who are “naturalized” by statute. There appears, however, to be no legitimate legal issue outstanding concerning the eligibility of all native born citizens of the United States to be President. The case law in the United States, as well as the clear historical record, does not support the argument or contention that there is some further or additional “subcategory” of “citizen” of the United States who, although native born and subject to the jurisdiction of the United States, is neither a “natural born” citizen nor a “naturalized” citizen.(150) It has been noted by certain proponents of a narrow interpretation of natural born citizen

(to include only those born in the United States) that the Fourteenth Amendment now

clearly provides that a U.S. citizen is one who is either “born or naturalized in the United

States.” Under such reasoning, it is argued that a “citizen” of the United States would be

a citizen only or exclusively by virtue of either being “born ... in” the United States

(under the common law principles of jus soli as reflected in the Fourteenth Amendment),

or by virtue of being “naturalized” in the United States, which some argue means that

one is made a citizen by the operation of statutory law. Earlier federal court cases gave

credibility to this version of who would be a native or natural born citizen, as opposed to

a “naturalized” citizen. As explained by the Supreme Court in Wong Kim Ark: "Every

person born in the United States, and subject to the jurisdiction thereof, becomes at once

a citizen of the United States, and needs no naturalization. A person born out of the

jurisdiction of the United States can only become a citizen by being naturalized, either

by treaty, as in the case of annexation of foreign territory, or by authority of Congress,

exercised either by declaring certain classes of persons to be citizens, as in the

enactments conferring citizenship upon foreign-born children of citizens, or by enabling

foreigners individually to become citizens by proceedings in the judicial tribunals, as in

the ordinary provisions of the naturalization acts."

Under such argument, a person who is born of American parents abroad, although clearly a “citizen” of the United States by law, is one who is not a

1

citizen by virtue of being “born ... in” the United States, and must, therefore, be one of those citizens who has been “naturalized” by the operation of law, even though such naturalization was “automatic” at birth. It is therefore argued that such citizen should not be considered a “natural born” citizen, but rather a “naturalized” citizen who is not eligible for the Presidency.” Conclusion

Petitioner begs the Commonwealth Court direct the Secretary of the

Commonwealth to set aside the nominating papers and petitions of Ted Cruz as

he files to be on Pennsylvania's Presidential Primary ballot as he is

Constitutionally ineligible for that office according to how the US Supreme Court

has consistently defined the terms natural born and naturalized citizen. The

Constitution's Presidential eligibility clause specifies that only natural born

citizens are eligible for the office of President. Whereas, Ted Cruz, by virtue of

his birth in Canada, is and always will be a naturalized US citizen.

Petition respectfully submitted, Pro se, by Carmon Elliott, 105 Elmont Street Pittsburgh, PA 15205

412-576-9091, Wizdym4@aol.com