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Cruz Control: Houston Lawyer Challenges Texas Senator’s Eligibility

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By Ryan M. Leach

Last month, a suit was filed in federal court challenging the constitutional eligibility of a presidential candidate to serve in the office, should he be elected. Do not adjust your watches, it isn’t 2008. This is happening (again) in 2016.

The candidate is yet another U.S. senator with a foreign-born father and an American mother—but one that is less charismatic and popular. Who would have guessed that Texas Senator Ted Cruz and President Barack Obama would lead such parallel lives? For many people on both sides of the aisle, there is sincere hope that the parallel ends there.

Ted Cruz, despite the many criticisms of his tactics and his personality, has surprised people before. In 2010, Cruz shot from relative obscurity in Texas politics to beat then-Lieutenant Governor David Dewhurst in the race to replace Senator Kay Bailey Hutchison. Cruz also faced a Democrat in the general election, but Texas elections have been won in the primaries in recent history. No Democrat has won statewide office in over two decades.

Despite his many obvious faults, Cruz is apparently reaching the hearts and minds of voters who see past his irritating exterior, as evidenced by his Iowa Caucus win last week. His base is the ultra-conservative Tea Party, borne out of the rise of Obama. Cruz has been able to capture and grow that party’s momentum during his time in the Senate. To their delight, he disregards his Republican colleagues’ open disdain for him while marching to the beat of his own drum—a quality popular with anti-establishment voters who are desperate for someone to “save their country.” (Exactly what the country needs to be “saved” from is open to discussion.)

Cruz’s growing momentum makes this federal lawsuit all the more relevant to the 2016 race. The question of a candidate’s eligibility to run for president is addressed in the Constitution, but its wording has never been directly reviewed by the courts. Those requirements would appear to be relatively straightforward:

  1. You must be a natural-born citizen;
  2. Thirty-five years of age;
  3. And you must have resided in the U.S. for at least 14 years.

It is the first requirement that seems to be the hang-up for “birthers,” or people who think President Obama and now Senator Cruz fail to meet the standard of “natural-born citizen.”

Generally speaking, a person is considered a natural-born citizen even if he or she is born abroad—as long as one parent is an American citizen. In the case of President Obama, people questioned both the place of his birth and the citizenship of his mother. The president eventually produced a birth certificate showing that he was indeed born in Hawaii after it had become the 50th U.S. state.

Turnabout is fair play in politics, and the Cruz campaign should have seen the questions about his eligibility coming, since the senator was born in Canada. There is also no dispute that his father, Rafael Cruz, was a Cuban national who did not become a U.S. citizen until 2005. And although his mother was born in Delaware, there is a question about her U.S. citizenship that this lawsuit intends to bring to light. If Cruz’s mother was indeed a U.S. citizen, then why does her name appear on Canadian voter rolls as having participated in Canadian elections—a right reserved only for Canadian citizens? Houston attorney Newton Schwartz would like to have this question answered, and that is why he has filed the suit against Cruz.

Schwartz has been a practicing attorney in Texas for over 60 years. He is a Houston native, a former Judge Advocate General (JAG) with the U.S. Air Force, and a self-proclaimed Independent (although he has primarily supported Democrats in recent elections). It is important to note Schwartz’s political leanings, as many view this lawsuit as a ploy by “the other side” to derail a legitimate candidate. Although derailment might be the outcome, Schwartz has tried to keep the focus on the legal question at hand. He is funding the entire cost on his own, and has accepted no money from people or organizations who would be very excited to see Ted Cruz barred from the presidential race, especially while he is winning primary elections. Schwartz intends to fight the case himself.

Newton Schwartz, a man of small stature, practices law out of a modest office between Montrose and Southampton near the neighborhood where he grew up. He has a strong pro-choice point of view and is progressive on issues like marriage equality. Ted Cruz, regardless of his eligibility, would probably not get Schwartz’s vote.

His legal practice boasts over 6,000 clients from all over the world. Most of his cases involve civil liability resulting from plane crashes. He shared an interesting story from the early days of his practice in the 1960s, when he represented a set of twins, who identified as being lesbian, in the Air Force when he was appointed defense counsel as a JAG. Both women were being court-martialed for their lives outside of their work. Schwartz won that case, quietly, and both women were able to remain in the Air Force. Years later, the issue of gays and lesbians serving in the military would be a defining battle for both President Clinton and President Obama.

Personal politics aside, Schwartz insists he brought this suit because he feels there is a legitimate question about Cruz’s eligibility that needs to be addressed. “I’ve filed this with the court, and Mr. Cruz has been served. If the judge dismisses it, then fine—but I am willing to argue this all the way to the Supreme Court if that’s what happens.”

For Schwartz, the outcome seems pretty clear. “Canadian law does not allow someone to have dual citizenship. By voting in Canadian elections, [Cruz’s] mother demonstrated that she had renounced her U.S. citizenship before giving birth to Ted. Neither of his parents was a citizen, and he wasn’t born in the U.S. This means that he is not a natural-born citizen, which means he can’t be president.”

Cruz had not responded to the lawsuit at press time, but Schwartz imagines he will try to have the case thrown out by arguing that Schwartz has no standing to file suit. Schwartz is not a candidate for president, so a weak argument could be made that he is therefore not in a position to file this suit.

Enter Terry Wheelock, 2016 Independent candidate for president. Wheelock, a Fort Worth native, recently intervened on the lawsuit and thusly legitimized whatever question there may have been regarding Schwartz’s standing to file the case. Between Wheelock’s campaign and Schwartz’s lawsuit, there may actually be a slim chance that Cruz will end up being disqualified from running. Stranger things have happened in America, and as we say in Texas, “Go big or go home!”

Ryan M. Leach is a community activist who currently serves on the board of Equality Texas. He is dedicated to the social and political advancement of the LGBT community.

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Ryan Leach

Ryan Leach is a frequent contributor to OutSmart magazine. Follow him on Medium at www.medium.com/@ryan_leach.
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