Get set for a constitutional crisis in America. It’s not a certainty, but it’s certainly a possibility following the decision of the Arizona state senate to enact a measure to require a presidential candidate to present a birth certificate before he or she can get listed on the presidential ballot in the Grand Canyon State. It comes at the start of a presidential campaign in which President Obama is brushing aside demands that he authorize the release of an original certificate of his birth at Hawaii. This is the issue that Donald Trump has been trying to stir up at a national level, and Arizona is not the only state looking at such a law. So we may yet be confronted with the question in respect of who gets to decides ballot access in the presidential contest.
It happens that this is dealt with in the Constitution. It is in section 1 of Article II, which sets up the presidency and requires that the president be a natural born citizen. It also sets up the electoral college. After the fiasco that paired John Adams as president and Thos. Jefferson as vice president, the 12th amendment was brought in to streamline the electoral college. But the method of choosing electors was unchanged. It says that they shall be appointed by each state “in such Manner as the Legislature thereof may direct . . .” The only restriction the Constitution puts on what the states can do is that no senator or representative or person holding an office of Trust under the United States can be made an elector.
This, incidentally, is different from the authority left to the states in the question of choosing members of the House of Representatives and the Senate. There the “Times, Places and Manner of holding Elections” for senators and representatives “shall be prescribed in each State by the Legislature thereof.” But the states have to do so in a way that the Congress sees fit, for the Constitution specifically says that the Congress “may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.” In other words, in the case of the manner of electing Congress, the congress gets to over-rule the states. In the case of the manner of electing the electors who elect the president, the states are sovereign.
So it’s up to Arizona and the other states how they want to run their elections for electors. No doubt there are things they can’t do. They can’t sent up a system that discriminates on the basis of, say, race, for that would be a plain language violation of the 14th Amendment’s equal protection clause. They can’t set up a religious test, requiring, say, that the electors aver a faith in God, for such tests are outlawed elsewhere, at Article VI, of the Constitution. But at the end of the day, in the matter of directing how elections for president are held in each state the Constitution gives the state legislatures sway.
Now, this newspaper is not a birther. If it were up to us, Mr. Obama would go on each of the ballots in each of the 50 states, no further questions. But the reporter in us can see that the states are in ferment over this question. More than a dozen states are reported to be looking — in the early stage — at the possibility of requiring candidates to present a birth certificate. It may well be that Arizona flinches and does not put through a requirement to that a birth certificate be presented for a candidate on the ballot. Or it may be that it enacts a requirement that could be satisfied with the certificate of live birth that Hawaii is prepared to show for President Obama.
But it may also be that Arizona — of any one or several of a number of other states — will try to deny a sitting president of America access to the ballot in a campaign for a second term. A spokesman for the Tea Party at Arizona was quoted the other day at by the New York Times saying the Arizona measure is “not a birther bill” and “not about Mr. Obama.” She called it “about preventing any questions from coming up in the future, putting something in place so no one could question it.” So we could be confronted with the basic bargain of the American founding, that it was a contract between the states and the people and the states. And it’s something to imagine how the constitutional sparks would fly.