HOUSTON (CN) - A Houston attorney lacks standing to contest Texas Sen. Ted Cruz's eligibility for the White House, the presidential hopeful claims in a dismissal motion.
Newton Boris Schwartz Sr., 81, sued Cruz on Jan. 15 in Federal Court in the Texas senator's hometown of Houston.
Schwartz seeks a declaration "adjudicating and deciding whether or not defendant Cruz is eligible to be elected," according to his second amended complaint.
Rafael Edward "Ted" Cruz was born Dec. 22, 1970, in Calgary, Canada, to an American mother and a Cuban father.
Schwartz told Courthouse News he filed the lawsuit for the greater public good "to avoid a futile election," and the potential for political mayhem if Cruz is elected president or vice president and he's later disqualified.
Schwartz says his status as an eligible voter for the Nov. 1 presidential election gives him standing to bring the lawsuit.
But Cruz argues in the dismissal motion that Schwartz's case is precluded by Article III of the Constitution, under which a plaintiff must demonstrate an "injury in fact" to establish standing.
"Nowhere does plaintiff, who acknowledges that he is a Democrat, explain how he is harmed by Sen. Cruz's presence on the Republican primary ballot," the Feb. 22 motion states.
Cruz's motion cites numerous cases in which federal courts dismissed similar challenges to President Barack Obama's rights to the White House. Obama's presidency has been dogged by a similar "birther" conspiracy theory that contends he is an illegitimate president because he was born in Kenya, his father's homeland, and not in Hawaii like his birth certificate says.
Cruz has carefully cultivated an image of an anti-establishment Christian conservative. He's known for his strict reading of the Bible and the U.S. Constitution and his impressive legal credentials.
After graduating from Harvard Law School, he became the first Hispanic to clerk for a chief justice of the U.S. Supreme Court in 1996. He broke more ground when he became the first Hispanic and longest-serving Texas solicitor general, from 2003 to 2008, a job that required him to represent Texas before the Supreme Court.
Cruz says the Constitution gives the Electoral College and Congress - not federal courts - the authority to vet a presidential candidate's eligibility.
Besides that, Cruz argues, Schwartz lacks standing because the case isn't "ripe" for a decision.
"As Sen. Cruz has not yet been officially nominated as the Republican Party's candidate-or yet elected president-it would be 'premature,' as a constitutional matter, for a court to address the issue," the 36-page motion states.
And regardless of the arguments over standing, Cruz claims, the crux of Schwartz's lawsuit is a nonstarter.
"The gravamen of plaintiff's argument is simply incorrect: Sen. Cruz is a 'natural-born citizen' eligible to serve as president of the United States," the motion states.
Cruz says the U.S. Senate passed a resolution in 2008 confirming that Sen. John McCain R-Arizona is a natural-born citizen, despite his birth in the Panama Canal Zone, because his parents are U.S. citizens. The decision dispelled doubts that McCain could run for president that year.
"Gov. George Romney, born in Mexico to U.S.-citizen parents, was also understood to be a natural-born citizen when he ran for president in 1968," the motion states.
Cruz's motion delves back to the founding of the nation. It states that the Framers of the Constitution included a "Natural Born Citizen Clause" in response to a 1787 letter from John Jay to George Washington, in which Jay suggested the Constitution should prohibit "foreigners" from becoming president.
Jay didn't mean to disqualify people like Cruz, the motion claims, because at the time Jay was serving abroad as the U.S. Secretary of Foreign Affairs and he had already fathered three kids abroad.
"Moreover, note what the text of the Constitution does not say: The Constitution also requires that a person have 'been 14 years a resident within the United States' to serve as President. It does not say that a person must be 'born' 'within the United States,'" the motion states. (Emphasis in original).
Donald Trump, the current front-runner for the Republican presidential nomination, has repeatedly questioned whether Cruz is eligible to be president.
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