"This is not Trig Palin Truthism"

Roxanna de Luca offers a qualified defense of the Obama citizenship litigation: a "lawsuit of this nature isn’t about invalidating the election, or even about Barack Obama; it’s about ensuring that basic, explicit constitutional requirements mean something." (Note that this isn't a defense of these particular litigants or these particular cases.) As she points out, the trouble with a blanket condemnation of litigating a candidate's eligibility is that this is one of several structural limits that would become effectively advisory if the courts won't intervene - in my view, a far worse alternative than voiding one election. The same would go for the McCain citizenship litigation, although regular readers will recall that Pat and I looked at that question and concluded that McCain was eligible for two independently-sufficient reasons.

To be sure, there's an argument that when the question is close, dubious, and is widely-known (all three conditions holding here), the electorate should be assumed to have considered and settled the question. I'm not sure that I agree with that, but it's a position one could take. Similarly, there are obvious cases where I hope all would agree the popular vote should not be determinative. If the Governator won a Presidential election, for example, even if the vote was unanimous I would support a ruling voiding the outcome (it would, presumably, be litigated by the losing candidate, thus satisfying standing requirements).

All will agree, though, that the best solution is to avoid such situations entirely, and on that score, de Luca says:

A better solution would be ... to find other, more constructive ways of avoiding this problem in the future. One possible solution would be for citizens to lobby their state Elections Boards (and legislatures) to pass laws which would require that candidates supply definitive proof of eligibility before being put on the ballot. Some states, such as Massachusetts, do this for state elections.... In light of the allegations of voter fraud, voter registration fraud, and possible voting by illegal immigrants, it would behoove Americans to push their states for more rigourous polling measures. A voter ID law, coupled with a requirement for candidates to prove their eligibility, may unhinge certain groups, but that is certainly preferable to this business of litigating elections before the Supreme Court.

I'd certainly support that.

Post facto:
Establishing eligibility (1/26/2011)