Arizona Birther Bill Is Unconstitutional, Legal Scholars Say

Arizona Birther Bill Is Unconstitutional, Legal Scholars Say

2012 presidential candidates could have one more challenge to getting their name on the ballot: proving to Arizona’s secretary of state that they are natural-born U.S. citizens.

Yet lawmakers and experts from across the country are saying that the bill, which passed Arizona’s House of Representatives in a landslide vote late Thursday evening, is blatantly unconstitutional.

“It wouldn’t hold up for a nanosecond,” said Laurence Tribe, a professor at Harvard Law School and one of the nation’s leading constitutional scholars who has worked for the Justice Department under President Obama. “I’m not even sure if it’s intended seriously.”

The bill, which passed 40-16, would require presidential candidates to provide the Arizona secretary of state proof of citizenship before their names could appear on the state ballot. The proof could take the form of a birth certificate, baptismal or circumcision certificates, hospital birth records or other documents -- but if the candidate failed to sway the secretary of state, his or her name could be barred.

Thirteen other states have proposed similar legislation this year, spurred by the so-called “birthers” movement that claims that President Obama was born in Kenya, not the United States, despite the fact that his birth certificate has been made available by the state of Hawaii on multiple occasions. The constitution requires an individual be a natural born U.S. citizen to hold the country’s highest office.

Legally, national political parties have the right to put forth presidential candidates, and many view Arizona's legislation as a classic example of a state's attempt to encroach on federal power.

“It’s an interference with federal supremacy. It’s not up for a state to decide who is qualified to run for president,” said Tribe.

Political commentators expect that if Gov. Jan Brewer allows the law to take effect, the courts will immediately challenge it.

“I think this is going to go on a rapid trip up the Appeals ladder,” said Richard Parker, a public policy lecturer at the Harvard Kennedy School of Government. “I don’t think the Justice Department is going to let this sit idly by. It’s way too off-the-rails.”

Which raises the question: Why bother with legislation that is practically begging for a costly lawsuit -- especially in a state like Arizona, where lawmakers have been grappling with a budget deficit so extreme that Gov. Jan Brewer proposed to eliminate health insurance for more than 160,000 of the poorest and sickest Arizonans just two weeks ago.

Frustrated Arizona Democrats say the bill is just one more attempt to placate the state’s radical right-wing conservatives at the expense of serious legislative action.

“It’s particularly targeted to appease conspiracy theorists and to target one president,” said state Rep. Ruben Gallego (D), who did not support the bill. “This is absolutely not a good allocation of resources, our time and our emotions.”

It’s unclear, however, that the far right-wing needs appeasing in Arizona. Gun-rights advocates hit it big last week with a bill that will allow guns on college campuses, and last summer’s immigration law put the state at the forefront of conservative immigration policy.

“Unfortunately I do feel we’re on a [conservative] streak. Yesterday was one bill of many bad bills,” said Gallego, who also spent the week fighting to keep guns off campuses.

Inside Arizona, the perception that the legislature is misusing precious resources is indeed vexing some voters.

"This bill would be laughable if the core of it all was not so tragic,” said Gary Grossman, president of the Arizona State University Senate, a body that represents all academic units in the university. “In the midst of Arizona's very serious problems, our legislature produces bills like this. It is indicative, I think, of some very misplaced priorities and that does damage to all of us.”

Popular in the Community