De mbsectel Bere Pact2, af Canrere Court cf the Tints of York, held in ané for the Courty nf Vorb nt the Court Iionea, Foley Seuare, New York, on the |@aiay oF 112A 0116,120014 THonecd $2) 2 g DAVID A. WEIN! A -against- STEIN Pueu fort Shute Board of Bectivd © (aspreder 4 eons a : s yon réading and fliing the anneved ecmearese rs Oe I 'shoo Caur’ 5 the fg@day of DDL FES, and uren all ore écPentttRecrney. for the plaintiff, an tha, within ection. to the clerk sf the, 1County of the Atbany ,‘uror navment to him of his feeaitif any, and services uhon hit. » conv of this order and it ds ORDPRED, that ‘all napers in. this action are eened arented igSupreme Court, County of Afbany » instead of Sunrene Courtr Of New, York. : " ORDERED, that a conv of this order he served on the attorney for, i detemtent within 20 days from the date hereof. ps Ce Spon ate Piven, SSE Hd 2 9349]TH OAL Lemire At TASS. Part __, of the Supreme Court of the State of New York, held in and for the County of New York, at the Courthouse thereof, located at 60 Centre Street, New York, New,York on the _/ day of. - 2016 PRESENT: Justice BARRY KORMAN and WILLIAM GALLO, é Index No, /2016 Petitioners, ORDER TO SHOW CAUSE -against- NEW YORK STATE BOARD OF ELECTION, Respondent Upon reading and filing the annexed Affirmation of Roger J. femstein, Esq., affirmed on February 17, 2016 and the exhibits annexed thereto, and upon all prior pleadings and proceedings had herein, and good cause appearing therefor, LET Respondent or its attorney sppear and show cause at JAS Part { of this Court, to be ALAR [County 4 Albany held at tiefcduatvage here located at Room?! [ip Encrt street, teen! New iy x Gg 7 Yorlyon the Mo day of February, 2016, at TL o’etock in the Guecnee A_ of that day, or as soon thereafter as counsel can be heard, why an order should not be made and entered herein ordering the New York State Board of Elections not to designate Rafael Edward (“Ted”) Cruz as SNOLL9315 20 duyog a candidate for Presidétt Sof Yho'United States in the Republican Presidential Primary Election to Sth Wd 81 435 9iaz aangbe held on April 19, 2016, SUFFICIENT CAUSE BEING ALLEGED THEREFOR, let a copy of this order and Bee Dy peoacd delver4 ‘ ‘he papers on which itis based be servedgipon respondent New York State Board of Elections oy okey pen Ve Bowyer Shue attorney Scneral on FD! 6 By facsimile transmission to the Board at the publi os fa erbee of its Executive Director on February 18, 2016; By delivery to an overnight deliyery Service on February 18, 2016 for next-day delivery to the New York State Board-of Elections, 40 North Pearl Street, Suite 5, Albany, NY 12207; and a By hand Gelivery in person to the Office of the Attomey General atthe location 2N7z01- Wodnntey a eee taon areas ery tien Nearer ian cewwerseniee > 2A62018- Tan anand enon com area ay tam hale ee mee $a enna Shipment Facts Naomna——raeeasnso ron soe nae oot amen 0z8b 4 eal gg caer poe Fann teens = My Profle Support Cosstans Engen Fedex Ofee ® ‘eta vary Wea 2772018 3:83 am v8 Board of Eectons ‘Air Eeocuve Deer sree AON PEAR st ‘Abba NVUS \z207 srearaaz0 Loonton Fede Stndaré Ovarght eat Spat NaN9 cee WennROGER J. BERNSTEIN ATTORNEY AT LAW 595 Frm Avenue. 98" Foon ‘New Yor. NEw Yor« 10017 TeLerhone, (212) 748-4800 TELECOPIER: (646) 964.6633 Ewan: February 16, 2016 By Fedex Overnight Service New York State Board of Elections 40 North Pearl Street, Suite 5 Albany, NY 12207-2729 Re: Republi lection on April 19, 201 Dear sirs: Enclosed please find: General Objection of Barry Korman to certificate of designation for Rafael Edward (“Ted”) Cruz (with Affirmation of Service); 2. Specific Objection to Candidacy of Rafael Edward (“Ted”) Cruz submitted by Mr. Korman in support of his General Objection (with Affirmation of Service); 3. General Objection of William Gallo to certificate of designation for Rafael Edward (""Ted”) Cruz (with Affirmation of Service); 4. Specific Objection to Candidacy of Rafael Edward ("Ted”) Cruz submitted by Mr. Gallo in support of his General Objection (with Affirmation of Service). Very truly yours, Roger J. Bernstein Enclosures (4) cc, Senator Rafael Edward Cruz, Washington, DC Cruz for President, Houston, TexasGENERAL OBJECTION FORM To: ‘The Board of Elections of the State of New York Opiector: Name: Bgary Koemey Residence Address: ‘OBJECTOR'S CONTACT PERSON: Name: Roger J. Bernstein Mailing Address: $35 Fifth Avenue, 35" Floor ‘New York, NY 10017 ‘Telephone Number: (212) 748-480 Fax Number: (646) 964-6633 Email Address: shernsteini¢ riblaw.com ‘The objector hereby objects to the certificate of designation filed with the Board of Elections which purports to name the following as a candidate in the Primary Election to be held on April 19, 2016 for the office indicated: ‘Name: Rafael Edward (“Ted”) Cruz, Addresses: Cruz for President P.O. Box 25376 Houston, TX 77265, Public Office: President of the United States of America Political Panty: Republican (Pram, Odjeciots Signature 7‘Specific Objection to Candidacy of Rafael Edward (Ted”) Cruz Rafael Edward Cruz is not eligible to run for President of the United States because he Is not a natural born citizen of the United States as Article Il, Section 1, Clause 5 of the U.S. Constitution requires." Instead, Cruz is @ natural born citizen of Canada, Cruz was born in Canada (in the city of Calgary in the Province of Alberta) on December 31, 1970. See Exhibit A (Cruz’ Canadian birth certificate). Because he was born in Canada, Cruz is @ natural born citizen of Canada as a matter of Canadian law, Canadian Citizenship Act, § 3(1)(a). He is also considered to be a natural born citizen of Canada under United States law, because place of birth determines whether a person is 3 natural born citizen under United States law. Under prevailing legal rules at the time the U.S, Constitution was adopted, a natural born citizen of @ country is a person born within the boundaries of that country. Since Cruz was not born in the United States, he is not a natural born citizen of the United States. Instead, Cruz is deemed to be a United States citizen — not a natural born citizen ~ only by reason of a later naturalization statute enacted by Congress. Cruz’ mother, Eleanor Elizabeth Wilson, was a native-born United States citizen from Delaware living in Canada when Cruz was born there, Because of his mother's United States citizenship, and only for that reason, Cruz was able to become a “citizen” of the United States under a law passed by Congress, that is, Section 320(a) of the Articie II, Section 1, Clause 5 of the U.S. Constitution provides: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shal be eligible to the Office of President; neither shall any person be aligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”Immigration and Nationality Act, 8 U.S.C. § 1431(a).? However, while conferring United States citizenship as such, this statute did not - and could not -- transform Cruz into a “natural born citizen” of the United States. Indeed, the Immigration and Nationality Act never described him as such. By its own terms the statute only made Cruz “a citizen of the United States”, not a natural born citizen of the United States. ‘The Supreme Court has clearly determined that, as a matter of law, a “natural born citizen” is a person born on United States territory, not a person born in another country. In United States v. Wong Kim Ark, 169 U.S, 649, 662, 18 S.Ct. 456, 462 (1898), the Supreme Court stated that the term “natural born citizen’ in the Constitution was used “in reference to that principle of public law, well understood in this country at the time of the adoption of the constitution, which referred citizenship to the place of birth.” ‘The United States Constitution makes an unambiguous distinction between being a citizen and being a natural born citizen, Article I of the Constitution provides that a “Citizen of the United States” may be a member of Congress. However, Article II of the Constitution required that only a “natural born Citizen” may be President of the United States. This distinction necessarily means that a citizen is legally different from a natural born citizen. The Board of Elections is required to give effect to the Constitutional requirement that a candidate for President of the United States be a natural born citizen. Section 6-122 of the N.Y. Election Law requires that a candidate be eligible to be elected to the public office he seeks and able to meet the constitutional qualifications for that office. Since Mr. Cruz is not a natural born citizen of the United Cruz’ father, Rafael Bienvenido Cruz, was a Cuban national when Cruz was born In Canada.States, he does not meet the constitutional qualifications to be President of the United ‘States and should be removed from the New York Presidential Primary Election ballot. ‘OBJECTOR'S CONTACT PERSON: Name: Roger 3. Bernstein Malling Address: 535 Fifth Avenue, 35” Floor New York, NY 10017 Telephone Number: (212) 748-4800 Fex Number: (646) 964-6633 Email Address: ——_rbernstein@rjblaw.comNew York Sra1k BOARD OF ELEC HONS AFFIRMATION Roger J. Bernstein, an attorney admitted to practice before the courts of the State of New York, affirms as follows under penalty of perjury: 1. lam not a party to this action and am over 18 years of age 2. On February 16, 2016, I served a true copy of the within General Objection Form signed by Barry Korman and Specific Objection to Candidacy of Edward Rafael ((Ted”) Cruz signed by Barry Korman as follows: i) by Fedex overnight delivery to Cruz tor President, P.O. Box 25376, Houston, TX 77265; and fi) by Fedex overnight delivery to Senator Rafael Edward Cruz, United States Senate, Russell Senate Office Building Room 404, Washington, DC 20510. Dated: New York, New York February 16, 2016 pS i Roger J. BernsteinGENERAL OBJECTION FORM To: ‘The Board of Elections of the State of New York OwwCrOR: Name Liha sn =f. ee Residence Address: _(C_FAC@ wy. Atauslacele LY 630 OpsecroR's Contact PERSON: Name: Roger J. Bernstein Mailing Address: 535 Fifth Avenue. 35" Floor New York, NY 10017 ‘Telephone Number: (212) 748-480 Fax Number: (646) 964-6633 Email Address: chermstein gl eiblny com The objector hereby objects to the ca vate of designation filed with the Board of on April 19, 2016 for the office indicated: Name: Ralael Edward (“Ted”) Cruz. Addresses: Cruz for President Houston, TX 77265 Public Office: President of the United States of America Political Party: Republican y bb Obiector's Seenaibieof Rafael Edward (Ted”) Cruz Rafael Edward Cruz Is not eligible to run for President of the United States because he is not a natural born citizen of the United States as Article Il, Section 1, Clause 5 of the U.S. Constitution requires.’ Instead, Cruz is a natural born citizen of Canada. Cruz was born in Canada (in the city of Calgary in the Province of Alberta) on December 31, 1970. See Exhibit A (Cruz’ Canadian birth certificate). Because he was born in Canada, Cruz is a natural born citizen of Canada as a matter of Canadian law. Canadian Citizenship Act, § 3(1)(a). He is also considered to be a natural bom citizen of Canada under United States law, because place of birth determines whether a person is a natural born citizen under United States law. Under prevailing legal rules at the time the U.S. Constitution was adopted, a atural born citizen of a country is a person born within the boundaries of that country. Since Cruz was not born in the United States, he is not a natural born citizen of the United States. Instead, Cruz is deemed to be a United States citizen - not a natural born citizen — only by reason of a later naturalization statute enacted by Congress. Cruz’ mother, Eleanor Elizabeth Wilson, was a native-born United States citizen from Delaware living in Canada when Cruz was born there. Because of his mother's United States citizenship, and only for that reason, Cruz was able to become a “citizen” of the United States under a lew passed by Congress, that is, Section 320(a) of the Article If, Section 1, Clause 5 ofthe U.S. Constitution provides: "No Person excent 2 natural born Ctizen, ora Citizen ofthe United States, at the time of the Adoption of this Constitution, shall be eligible tothe Office of President; netther shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”Immigration and Nationality Act, 8 U.S.C. § 1431(a).* However, while conferring United States citizenship as such, this statute did not - and could not ~ transform Cruz into @ “natural bom citizen” of the United States. Indeed, the Immigration and Nationality Act never described him as such, By its own terms the statute only made Cruz “a citizen of the United States”, not a natural born citizen of the United States. ‘The Supreme Court has clearly determined that, as a matter of law, a “natural born citizen” is a person born an United States territory, not 2 person born in another country, In United States v. Wong Kim Ark, 169 U.S. 649, 662, 18 S.Ct. 456, 462 (1898), the Supreme Court stated that the term “natural born citizen” in the Constitution was used “in reference to that principle of public law, well understood in this country at the time of the adoption of the constitution, which referred citizenship to the place of birth.” The United States Constitution makes an unambiguous distinction between being a citizen and being a natural born citizen. Article I of the Constitution provides that a “Citizen of the United States” may be a member of Congress. However, Article II of the Constitution required that only a “natural born Citizen” may be President of the United States. This distinction necessarily means that a citizen is legally different from 3 natural born citizen. The Board of Elections is required to give effect to the Constitutional requirement that a candidate for President of the United States be a natural born citizen, Section 6-122 of the N.Y. Election Law requires that a candidate be eligible to be elected to the public office he seeks and able to meet the constitutional qualifications for that office. Since Mr, Cruz is not a natural born citizen of the United Cruz father, Rafael Bienvenido Cruz, was @ Cuban national when Cruz was born in Canada.States, he does not meet the constitutional qualifications to be President of the United States and should be removed from the New York Presidential Primary Election ballot, ‘OsiecToR'S CONTACT PERSON: Name: Roger J, Bernstein Malling Address: 535 Fifth Avenue, 35° Floor New York, NY 10017 Telephone Number: (212) 748-4800 Fax Number: (646) 964-6633 Email Address: ernsteinGrjplaYork S141 AFFIRMATION Roger J. Bernstein, an attorney admitted to practice before the courts of the State of New York, affirms as follows under penalty of perjury: 1. Lam nota party to this action and am over 18 years of age. 2. OnFebruary 16, 2016, | served a true copy of the within General Objection Form signed by William Gallo and Specific Objection to Candidacy of Edward Rafael (Ted”) Cruz signed by William Gallo as follows: i) by Fedex overnight delivery to Cruz for President, P.O, Box 25376, Houston, TX 77265; and fi) by Fedex overnight delivery to Senator Rafael Edward Cruz, United States Senate, Russell Senate Office Building Room 404, Washington, DC 20510. Dated: New York, New York February 16, 2016 Roger J. BernsteinSUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK BARRY KORMAN and WILLIAM GALLO, Index No, 2016 Petitioners, -against- : VERIFIED PETITION TO INVALIDATE NEW YORK STATE BOARD OF ELECTION, : CANDIDATE DESIGNATION FOR PRIMARY ELECTION Respondent. TO THE SUPREME COURT OF THE STATE OF NEW YORK: Petitioners Barry Korman and William Gallo (“Petitioners”), by and through their attorney, Roger J. Bernstein, bring this Verified Petition pursuant to Article 16-116 of the New York Election Law and aver as follows: Facts 1. Petitioners are duly registered voters in the State of New York. 2. Oninformation and belief, Rafael Edward (“Ted”) Cruz, a self-designated candidate for the Republican Presidential nomination in the New York Republican Presidential Primary Election, has publicly admitted that he was born in Canada. A copy of his Canadian birth certificate as published by the Dallas Morning News on August 18, 2013 is attached as Exhibit A. 3, Pursuant to Article 6, Section 122 of the New York Election Law, “[a] person shall not be designated or nominated for a public office or party position who (1) is not a citizen of the state of New York; (2) is ineligible to be elected to such office or position; or (3) who, if elected will not at the time of commencement of the term of suchoffice or position, meet the constitutional or statutory qualifications.” 4. Article I, § 1, Clause 5 of the Constitution of the United States of America specifies that: 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; .... 5, By reason of being born outside the territorial jurisdiction of the United States in Canada, Cruz is not a natural born citizen of the United States. Since Cruz is not a natural born citizen of the United States, he is constitutionally ineligible for the office of President of the United States. WHEREFORE itis respectfully submitted that the New York State Board of Elections should be ordered not to designate Rafael Edward (“Ted”) Cruzas a candidate for President of the United States in the Republican Presidential Primary Election to be held on April 19, 2016. Dated: New York, New York February 17, 2016 Roger J. Bernstein, Esq. Attorney for Petitioners 535 Fifth Avenue, 35" Floor New York, New York 10017 Tol: (212) 748-4800 Fax: (646) 964-6633 rhernsteine:ribaw.comSTATE OF NEW YORK) ) ss. NEW YORK COUNTY} Barry Korman, being duly sworn, deposes and says: deponent is the petitioner herein; deponent has read the foregoing petition and knows the contents thereof; the same is true to deponent’s own knowledge, except as to the matters thercin stated to be alleged on information and belief or matters of law, and as to those matters deponent believes them to be true. Sworn to before me this _ day of February, 2016 Verification Roger J, Bernstein, an attorney admitted to practice in the courts of New York State, hereby affirms as follows under penalties of perjury: am the attorney of record for petitioner William Gallo. J have read the foregoing Petition and know the contents thereof and affirm that the same is true to my knowledge except as to the matters therein stated to be alleged on information and belief. This verification is made by affirmant and not by petitioner because affirmant maintains his offices in a county other than the address of petitioner. Dated: New York, New York February 17, 2016 Roger J. Bernstein aEXHIBIT ACertificate of Chie ie to lly te eeree igen methane ®NEW YORK COUNTY CLERK'S AFFIOE Fee 18 we SUPREME COURT OF THE STATE OF NEW YORK NOT GUMmraneD COUNTY OF NEW YORK WITH COPY FILE BARRY KORMAN and WILLIAM GALLO, Index No. 0824 2916 Petitioners, -against- VERIFIED PETITION TO INVALIDATE NEW YORK STATE BOARD OF ELECTION, CANDIDATE DESIGNATION FOR PRIMARY ELECTION Respondent. ‘TO THE SUPREME COURT OF THE STATE OF NEW YORK: Petitioners Barty Korman and William Gallo (“Petitioners”), by and through their attorney, Roger J. Bernstein, bring this Verified Petition pursuant to Article 16-116 of the New York Election Law and aver as follows: Facts Petitioners are duly registered voters in the State of New York. 2. On information and belief, Rafael Edward (“Ted”) Cruz, a self-designated candidate for the Republican Presidential nomination in the New York Republican Presidential Primary Election, has publicly admitted that he was born in Canada. A copy of his Canadian birth certificate as published by the Dallas Morning News on August 18, 2013 is attached as Exhibit A. 3. Pursuant to Article 6, Section 122 of the New York Election Law, “[a] person shall not be designated or nominated for a public office or party position who (1) isnotaa citizen of the state of New York; (2) is ineligible to be elected to such office or Position; or (3) who, if elected will not at the time of commencement of the term of suchVerification STATE OF NEW YORK) ) ss. NEW YORK COUNTY — ) Barry Korman, being duly sworn, deposes and says: deponent isthe petitioner herein; deponent has read the foregoing petition and knows the contents thereof: the same is true to deponent’s own knowledge, except as to the matters therein stated to be alleged on information and belief or matters of law, and as to those matters deponent believes them to be true, i‘ px, Cn ‘Am ‘Sworn to before me this Dfiey of February, 2016 de phe bemnstem NOTARY PUBLIC-STATE OF NEW YORK Verification No, o2ee4e 12395 sy NE) CER SOLE HY tomney actmitted to practice inthe courts of New York State, hereby affirms as follows under penalties of perjury: I am the attorney of record for petitioner William Gallo. Ihave read the foregoing Petition and know the contents thereof and affirm that the same is true to my knowledge except as to the matters therein stated to be alleged on information and belief. This verification is made by aftirmant and not by petitioner because affirmant maintains his offices in a county other than the address of petitioner. Dat : New York, New York February 17, 2016EXHIBIT ACertificate of Birth ExkuiRIe ASUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK BARRY KORMAN and WILLIAM GALLO, Petitioners, -against- : Index No. 100240/2016 NEW YORK STATE BOARD OF ELECTION, Respondent. PETITIONER'S MEMORANDUM OF LAW IN OPPOSITION TO DESIGNATION OF RAFAEL EDWARD ("TED") CRUZ FOR REPUBLICAN PRESIDENTIAL PRIMARY 535 Fifth Avenue, 35" Floor New York, New York 10017 Tel: (212) 748-4800 Fax: (646) 964-6633 rbernsteinerjbaw.com Benjamin Dictor, Esq. Eisner & Associates, P.C. 113 University Place New York, NY 10003 Tek: (212) 473-8700 ben@eisnerassociates.com Attorneys for PetitionersStatement of Facts The sole fact relevant to this proceeding is the fact that Rafael Edward (’Ted”) Cruz was not born inside the territorial jurisdiction of the United States of America, Ted ‘Cruz was bom in Calgary, Province of Alberta, Canada. See Bernstein Aff,, Exhibit A. (Cruz's Canadian birth certificate). Accordingly Cruz is a natural bom Canadian citizen at common law and also by statute under the Canadian Citizenship Act, § 3(1)(a). Although Cruz notes that one of his parents was an American citizen at the time of his Canadian birth’, that fact is irrelevant because it does not make him a “naturally born” American citizen. A child can be naturally born in only one place. Cruz was naturally born on the soil of Canada, not in the United States of America. Moreover, in American common law, hereditary citizenship from parent to child does not exist. Therefore the fact of Cruz's mother’s American citizenship has no bearing on whether Cruis a natural born citizen of the United States of America. Argument The rules for eligibility to be President of the United States are specifically enumerated in the U.S. Constitution: No person except a natural born Citizen, or a Citizen of the United States, atthe time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States, US. Constitution, Article TI, § 1, Cl. 5. The Constitution makes an unambiguous Cruz's mother, Eleanor Elizabeth Wilson, was a native-born United States citizen born in Delaware. She was living in Canada when Cruz was bom there. Cruz's father, Rafael Bienvenido Cruz, was a Cuban national when Cruz was born in Canada. 1distinction between being a citizen and being a natural born citizen, To be a member of Congress it is necessary to be a “citizen” of the United States. U.S. Constitution, Article 1, § 1, Cls. 2 & 3. However, Article II of the Constitution requires that only a “natural born Citizen” may be President of the United States. This distinction necessarily means that a citizen is legally different from a natural bom citizen. More specifically, the part of Article I which is pertinent to this case reads as follows: No person except a natural born Citizen... . of the United States. .. shall be eligible to the Office of President . .. Art II, § 1, Cl. 5. Petitioners have submitted uncontested evidence that Cruz was bon in " of Canada. As we show below, this means that Cruz was not a “natural born Citizi the United States. He is therefore ineligible for the office of United States President. I. Cruz Is Not a “Natural Born Citizen” of the United States Unde jection 1, Clause Natural born citizenship is, quite simply, citizenship which arises naturally. That is to say, it pertains to a citizenship which arises by itself without the need for any intervention on the part of the government, such as by an Act of Congress. Instead, it arises of its own natural accord, that is, birth, and is thus appropriately called natural bom citizenship. The only other form of citizenship arises solely by intervention of the government through an Act of Congress. Such citizenship does not occur naturally, of its own accord. This is naturalized citizenship. No amount of semantic gamesmanship can convert a naturalized citizen into a natural bom citizen, The Supreme Court has fully accepted this distinction, as outlined below.It is axiomatic that terms in the U.S. Constitution that have a common law history are to be interpreted in accordance with their meaning at the time the Constitution was adopted, “The language of the Constitution and of many acts of Congress could not be understood without reference to the common law.” Moore v. United States, 91 U.S. 270, 274, 23 L.Ed.346, 1875 WL 17916 at *3 (1875); see also Ex parte Grossman, 267 U.S. 87, 108-09 (1925) (“[t]he statesmen and lawyers of the Convention who submitted it to the :atification of the Conventions of the thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary”), In 1788 the term “natural bom citizen” had only one meaning at common law: the jurisdiction in which a person is bom is the sole criterion for determining citizenship. Put otherwise, the “jus soli” (law of the soil) determined citizenship in 1788. In 1789, James Madison, known for his central role in the drafting of the Constitution, had this to say in a speech before Congress: It is anestablished maxim that birth is a criterion of allegiance. Birth . . . derives its force sometimes from place, and sometimes from parentage; but . . . place is the most certain criterion; it is what applies in the United States....? Many courts have identified place of birth as the sole fact that determined whether a person was a natural born citizen at the time the Constitution was drafted. ‘The US. Supreme Court has spoken to this issue. One key point stressed by the Court is this: United States citizenship arises either by virtue of being born within the territorial limits of the United States, or by an act of naturalization provided for by the United MeManamon, The Natural Born Citizen Clause as Originally Understood, 64 Cath. Univ. Law Review 317, at p. 328,States Congress; the two routes are mutually exclusive and there is no hereditary citizenship: {United States citizens are] such only as are either born or made so, born within the limits and under the jurisdiction of the United States, or naturalized by the authority of law, either in one of the States before the Constitution, or since that time, by virtue of an act of the Congress of the United States .. . The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or itis given personally by statute. United States v. Wong Kim Ark, 169 U.S. 649, 665 (1898) (emphasis supplied; intemal quotations and citations omitted). The Court further explained that “[tJhe fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well considered opinions of the executive departments of the Government, since the adoption of the Fourteenth Amendment of the Constitution.” Id. at 688 (emphasis added). Importantly, the Supreme Court recognized that so far ass the common law is concerned, the rule of jus soli did not include conferring citizenship on children born abroad of American parents: The notion that there is any common-law principle to naturalize the children born in foreign countries, of native-born American father ‘and’ mother, father ‘or’ mother, must be discarded. There is not, and never was, any such common-law principle’ Binney, Alierigenae, 14, 20;2 Am. Law Reg. 199, 203. And the great weight of the English authorities, before and since he wrote, appears to support his conclusion. Calvin’s Case, 7 Coke, 17a, 18a; Co, Litt. 8a, and Hargrave's note 36; 1 Bl. Comm. 373; Barrington, Statutes (Sth Ed.) 268; Lord Kenyon, in Doe v. Jones, 4 Term R. 300, 308; Lord Chancellor Cranworth, in Shedden v. Patrick, 1 Macq. 535, 611; Cockb. Nat. 7, 9; De Geer v. Stone, 22 Ch Div, 243, 252; Dicey, Confl. Laws, 178, 741. ‘The acquisition,’ says Mr. Dicey (page 741), ‘of nationality by descent, is foreign to the principles of the common law, and is based 4wholly upon statutory enactments, Wong Kim Ark, 169 U.S. at 670 (emphasis supplied) In 1971 the Court was faced with a case pertai ig to a man who was born abroad to a U.S. citizen mother, as is the case with Cruz. The man failed to meet a condition subsequent to his birth that was required by the naturalization statute in order for him to retain the U.S. citizenship which he would otherwise have by statute. In deciding his case, the Court rejected the claim that parental citizenship conferred citizenship on a descendant as a common law matter: Not until 1934 would that person have had any conceivable claim to United States citizenship. For more than a century and a half no statute was of assistance. Maternal citizenship afforded no benefit. Rogers v. Bellei, 401 U.S. 815, 826 (1971). Citing Wong Kim Ark, the Court again concluded that “naturalization by descent’ was not a common-law concept but was dependent, instead, upon statutory enactment.” Rogers, 401 US. at 828 (internal citations omitted) The Court in Wong Kim Ark summed up its conclusions as follows: ‘The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient tal rule of citize with in the allegi the ‘protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, 169 U.S. at 693 (emphasis supplied).For the sake of emphasis, however, let us consider again what the Court said about whether at common law United States citizenship could arise by virtue of being bor to a mother or father who was a United States citizen: “There is not, and never was, any such common-law principle.” Wong Kim Ark, 169 U.S. at 670 (citations omitted). The Court’s statement of the law of citizenship is a statement about an accepted common law rule of citizenship which predates the Fourteenth Amendment and, in fact, is “ancient” in nature. 169 U.S. at 667. These statements must be taken as being the definitive statement by the Court on how natural born citizenship is acquired: it is not acquired by birth when foreign bom children of U.S. citizens obtain citizenship under a naturalization statute. IL The Naturalization Act of 1790 Does Not Convert Naturalization to Natural Birth ‘The Naturalization Act of 1799, itis said, supports the idea that Cruz is a natural bom citizen of the United States. Precisely the opposite is the case. As will be seen, the very existence of that Act reinforces the principle that individuals born abroad, regardless of parentage, must be naturalized pursuant to statute and do not meet the common law definition of a naturally born citizen. Only sleight of hand can convert citizenship by statutory naturalization into common law citizenship arising from birth within the relevant jurisdiction. ‘The specific provision of the 1790 Act which is claimed to support the idea that “natural bom citizen” somehow included individuals not born within the United States but having an American citizen parent was as follows: “And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, 6shall be considered as natural bom Citizens” (emphasis supplied). It is said that this provision sheds light on the meaning of “natural born’ in Article II because some (not all) of the authors of Article II constituted a few (again, not all) of the Senators and Congressmen in the First Congress. There are many flaws in this line of argument. First, the Naturalization Act of 1790 was repealed in 1795 at the behest of James Madison, a key author of the Constitution. It was re-enacted in the Naturalization Act of 1795. There the Fourth Congress changed the wording pertaining to citizenship for children born abroad to American citizens say that those born abroad to children of American parents“... shall be considered as citizens of the United States”. The deletion of the phrase “natural born” that had been used in the 1790 Act, is striking. Following the logic of the Cruz position, one must conclude that the members of the Fourth Congress, in deleting the phrase “natural born citizen” from the naturalization statute in 1795, intended to prevent the acquisition of natural bor citizenship for persons born after 1795 such as Cruz. For if the Act of 1790 had somehow transformed naturalized citizens born abroad into natural bom citizens born in the United States, then it follows that Congress was preventing natural bom citizenship from arising via naturalization by deleting that phrase in 1795. Cruz has no answer to this inconvenient corollary to his effort to invoke the Naturalization Act of 1790. 2 hitpy/www indiana. edul-kdhist/H105-documents-wel/week08/naturalization1790,h1m Id, There is reason to think that the change was simply the correction of an erroneous use of the term “natural born”. “Referring to ‘the inadvertent use of the term natural-born in the Act of 1790, one author averred that “it was Mr. Madison who had participated in the drafting of the Constitution who had discovered the error and authorized the bill to correct it by deleting the term from the act of 1795.'” McManamon, The Natural Born Citizen Clause as Originally Understood, supra, at p. 336, fn. 137.In fact, as McManamon has pointed out, there were several decades in the 1800s when there was no statute at all on the books to give U.S. citizenship to children born abroad to U.S. citizens. So if the theory about the 1790 Act embraced by Cruz is cortect, then this would be an example of Congress denying natural bom citizenship at the constitutional level during much of the nineteenth century. With that in mind, let us look once more examine the Supreme Court decision in Rogers v. Bellei. Bellei was bom in Italy in 1939 to a US. citizen mother. 401 U.S. at 817 Under the naturalization statute in effect at his birth, Bellei immediately gained US. citizenship; however, that statute also provided that Bellei would lose his U. S. citizenship ”, .. unless, after age 14 and before age 28, he shall come to the United States and be physically present here continuously for at least five years.” 401 U.S. at 816-817. Bellei failed to comply with this condition subsequent, and as the Supreme Court held, therefore lost his U.S. citizenship. Id. The cases proves that a child born abroad who, like Cruz, automatically gains U.S. citizenship under a statute by reason of being born to an American parent, does not at all gain the status of a naturally born citizen (who ‘would not lose his citizenship by reason of living abroad). One must ask: “If the citizenship which arises by statute is really natural bor citizenship at the constitutional level, then how is it that Congress could deny such status for years at a time by not providing for such status by statute, or by providing it only when subject to certain statutory limitations, as in the Bellei case? Or conversely, if natural bom status can be denied by the refusal of Congress to provide for it by statute, then how can it have meaning as a specific requirement in the Constitution itself? These hitps://Avww,washingtonpost.com/opinions/ted-cruz-is-not-eligible-to-be-president/2016/0 1/12/1484a7d0-b7al-1105-9913-184be37912d story. htm! 8questions answer themselves. In short, the phrase “natural bom Citizen” means something more than simply “bom a Citizen” or “a Citizen since birth”. It is instead a term of art in common law. If such were not the case, then why would not the Constitution have been worded to reflect that? Why would not the Constitution say: “No person except a person who has been a citizen since birth shall be eligible ., ”? The Constitution does not have this. concept (which is the one advocated by Cruz); instead, it expressly requires that the President be a natural born citizen. Second, there is a cogent alternative explanation to the idea that the Naturalization Act of 1790 extended natural born citizen status at the constitutional level. Consider what the Act itself had to say about how immigrants generally could become United States citizens: Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled. That any Alien being a free white person, who shall have resided. within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shalll have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States.26 It is clear that Congress was simply streamlining the process for children born abroad to USS. citizen parents to be able to enter the country and enjoy all the rights of citizenship (eg, the right to inherit property) without first having to go through the entire processand waiting, period of naturalization for other immigrants. Conversely, itis hardly reasonable to conclude that Congress somehow wanted to change the eligibility requirements in Article TI of the Constitution (first by supposedly granting such constitutional status by statute, and then by deleting it). Nor did Congress have any power to amend a provision of the Constitution by statute; only a super-majority of the states or a constitutional convention may amend it. U.S. Const., Art. V. ‘Third, the language of the Naturalization Act of 1790 itself does not support the idea that those who are made citizens under the statute are in fact natural born citizens, As the statute says, children born abroad to United States citizens and who are made citizens under that statute”... shall be considered as natural born” citizens (emphasis. supplied).* In like manner, one might say that one shall treat an artificial flower as if it ‘were a real flower. But that does not of course transform it into a real flower. Thus, the wording of the statute itself points to the conclusion that such citizenship is not true natural born citizenship, but rather that those who are made citizens under the Act shall simply be considered as natural born citizens for naturalization purposes. Fourth, perhaps the strangest aspect of this whole debate lies in the fact that, those who think that the Naturalization Act of 1790 supports the idea that Cruz isa natural bor citizen completely overlook the very name of the statute itself: the Naturalization Act of 1790 (emphasis supplied). Naturalization and natural born, as we have seen, are antithetical legal concepts. dhist/1105-cocuments-web/weck08/naturalization1790.ntm! 10 hitpy//www.indiana.edulII, The Common Law Meaning of the Phrase “Natural Born Citizen” Cannot be Determined by Reference to the Circumstances of hn Jay or John McCain, Let Alone Governor George Romney It apparently was John Jay who first suggested that the Constitution should contain a natural born citizen requirement in order to hold the office of President of the United States. At the convention in Philadelphia in 1787 where the Constitution was being drafted he made a request in writing to George Washington that the Constitution contain exactly this requirement.” One line of argument says that, as a good parent, Jay surely could not have intended to have his own foreign-born children be made ineligible to hold the office of President. The very unusual premise is that the possible careers of his children were part of Jay's object in recommending the inclusion of the “natural born citizen” requirement for the Presidency. We know, however, that this is not the ca ; Jay urged adoption of the requirement as “a. . . strong check to the admission of Foreigners into the administration of our national Government expres{s}ly that the Command in chief of the [A]merican army shall not be given to, nor devolve on, any but a natural born Citizen.”* Moreover, as the Supreme Court has recognized, the principle of jus soli has always considered children of the diplomatic servants of a government who are stationed abroad to be natural bom citizens . Wong Kim Ark, 169 U.S. at 683-685. This is an ancient principle of — again — common law. See McManamon, supra, at p. 331. Jay “McManamon, supra, at p. 329 n.80. © Id. at pp. 328-29. uncertainly knew of the exception to jus soli for children of a country’s diplomats when those diplomats were stationed abroad (an embassy being an extension of a country’s own jurisdiction). Thus the argument based on John Jay sub silentio contemplating his children’s careers has no merit. Another contention is that the meaning of natural born citizenship was somehow settled when John McCain ran for President of the United States in 2008, McCain was bom in within the Coco Solo Naval Air Station, a United States military installation in the Panama Canal Zone, while his father was serving there as an officer in the United States Navy, and on that basis some questioned whether McCain was a natural born citizen. However, a military installation in the Canal Zone was indisputably United States territory to which the principle of jus soli extended. The McCain situation has no precedential significance for this case, in which Cruz.at birth was a natural bom citizen of a foreign sovereign. As to George Romney's brief campaign for the Presidency, there was no occasion for any court to rule on his eligibility before he withdrew. IV. Article II of the Constitution Calls for the States, Not the Electoral College, to Determine Candidate EI ligibility in State Primary Elections NY Election Law, § 6-122 provides that: “[a] person shall not be designated .. for a public office ... who . (2) is ineligible to be elected to such office. ..; or (3) whi if elected will not at the time of commencement of the term of such office or position, meet the constitutional . .. qualifications thereof...” (emphasis supplied). Hence the Legislature has vested in this Court jurisdiction to determine the eligibility of Cruz for the office he is seeking.The Cruz campaign apparently contends that the Electoral College procedures contained in the Twelfth Amendment are the exclusive forum for determining a candidate's qualifications to hold the office of President of the United States. This contention has no merit. The Twelfth Amendment provides: The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as, Vice-President and of the number af votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. ‘The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted. ‘The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if xno person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. Clearly there is no provision in the Twelith Amendment for the electors to determine whether a President-elect meets the Article II qualifications for the office; their job is limited to voting for the candidate that prevailed in the election held in their state. Sez, eg, NY Election Law, § 12-100 et seq. Nor does 3 U.S.C. § 15, a 19 century statute enacted in the wake of the Hayes- Tilden contested election of 1876, provide for a determination by either the Electoral 1BCollege of Congress as to whether a candidate meets the Constitutional qualifications for the Presidency. That statute simply authorizes consideration of irregularities in the casting of Electoral College ballots. ‘The suggested procedure of awaiting post-election proceedings of the Electoral College is shot through with practical as well as legal disaster potential. The gist of the argument is that — after having gone through the entire general election process leading up to November of the Presidential election year, and the general voting public having selected a President-Elect, and the Electors having been designated to vote for the candidate prevailing in their state (NY Election Law § 12-100 et sep.) ~ the Electoral College shall be the first place to consider whether the President-elect is too young (age 34), or not resident in the United States for the required fourteen years, or not a natural ‘bom citizen of the United States. It would be a brave member of Congress indeed who, in the face of the post- election momentum afforded a President-elect, would challenge the President-elect’s qualifications so late in the process; there would instantly be a huge cry of “foul”. Moreover, the result would to create ongoing uncertainty as to who the next president would be. It is not realistic to think that the Electoral College should be the first place that considers eligibility for the office of President. The Cruz contention that this fundamental issue should not be heard until after the election is a thinly-veiled effort to insure that the issue of ineligibility because he is not a natural born United States citizen is never decided. A legally ineligible candidate cannot be allowed to participate in a presidential 4election without doing grave violence to the Constitutional qualifications clause. Certainly the authors of the Constitution and its amendments did not intend to leave this critical issue to be determined only after an election has already taken place. Indeed, there is not one word in the Twelfth or Twentieth Amendments that displaces, or even seeks to displace, state jurisdiction over elections within a state. In fact presidential elections are “an area over which the Constitution gives Congress no authority whatsoever.” Arizona v, Inter Tribal Council of Arizona, Inc, __U.S.__. 133 8, Ct, 2247, 2268 n.2(2013) (Alito, J., dissenting on other grounds). By contrast, Article If of the Constitution not only delivers to the states full control over the method of picking Presidential electors; it requires them to exercise that power: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, ....” (emphasis supplied). It is therefore abundantly clear that the Constitution was written to confer on the states the power, indeed the obligation, to enact laws such as NY Election Law § 6-122 which pertain to the Presidential election process within each state. There is no reason that this power should fail to include determining whether a candidate for President in a primary election meets the fundamental Constitutional requirements for that office. Otherwise voters could readily cast their votes for an ineligible person during the primary ~ and only after the general election would they find out that their candidate was disqualified. At that point it ‘would, of course, be far too late to vote in a primary for another candidate who is, eligible‘Conclusion The petition should be granted and the New York State Board of Election should be ordered not to include Cruz in the April 19, 2016 Republican Primary Election. Dated: New York, New York February 17, 2016 Respectfully submitted, f f FLV ELS 28,2 Roger J. Berpistein, Esq: 535 Fifth Avenue, 35" Floor New York, New York 10017 Tel: (212) 748-4800 Fax: (646) 964-6633 rbernstein@rjbaw.com Benjamin Dictor, Esq Eisner & Associates, P.C. 113 University Place New York, NY 10003 Tel: (212) 473-8700 benGeisnerass Attorneys for Petitioners 16Iv The paymonthas neen oppraved Transaction Information Transaction Type Sale Nome Foy Hoag LLP eCheck information Account Number outing Number Payment IDs Authorization Code. 545.427 Amount Date & Time Aczount Type ‘Tanesction 0 $100.00 carranor6- 1038 PST Checking torroores:sosar72z294545 2/18/16, 1:38 PM