Failed ‘Birther’ Suit Against Cruz Appealed to Supreme Court

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Lazer Axelman (left) has Republican presidential candidate Ted Cruz autograph his cowboy hat on April 6, 2016, in the Bronx.

Photographer: Bryan Thomas/Getty Images
  • Suit in Utah is among several over Cruz's birth in Canada
  • Cruz was born to an American mother in Calgary in 1970

A Utah man became the first to ask the U.S. Supreme Court to take up a “birther” lawsuit against Ted Cruz which challenges the White House hopeful’s eligibility for office.

The request by Utah attorney Walter Wagner, who is representing himself in a case thrown out by a trial judge, was placed on the high court’s docket in Washington this week. The justices probably won’t take up the appeal in order to signal that such cases shouldn’t be taken seriously, said Nate Persily, a professor at Stanford Law School.

Wagner sued in January, arguing Cruz’s birth on Canadian soil disqualifies him from the presidency because the U.S. Constitution requires the nation be led by a “natural born citizen.” Similar cases have been filed in states including Alabama, Florida, Illinois and New York, so far without success. Cruz’s request to dismiss a Texas case is set for a hearing next week.

"It is a case of national importance, ergo straight to the Supreme Court," Wagner said in an e-mail. "We should not have a country where our president is illegal (ineligible), or skewing the results of the primaries/conventions."

The issue of Cruz’s birth gained traction after Republican front-runner Donald Trump questioned the senator’s eligibility in televised interviews. The real-estate mogul argued the uncertainty could lead to a years-long court battle if Cruz won the Republican nomination. Many legal experts contend Cruz is eligible for the presidency because his mother was an American citizen when he was born.

Cruz spokeswoman Alice Stewart didn’t immediately return a call for comment.

Case Tossed

U.S. District Judge Jill Parrish in Salt Lake City tossed out Wagner’s case on March 18, ruling he lacked standing to file suit because he hadn’t been personally harmed by Cruz, the junior senator from Texas.

"Like the courts that have ruled on this question, this court holds that Mr. Wagner lacks standing to bring his claim," Parrish said in her ruling.

"It is not enough for an individual to bring a lawsuit based on his status as a ’citizen’ or a ’taxpayer,’" Parrish said in her ruling. "The harms alleged by Mr. Wagner are conjectural and hypothetical at best."

Four days after that decision, Cruz won Utah’s caucuses and all of the state’s 40 delegates.

Trump previously raised the eligibility issue about President Barack Obama, who was born in Honolulu to an American mother and a Kenyan father. Trump challenged Obama to release his long-form birth certificate, which he did in April 2011. Birther conspiracy theories nevertheless persist.

The case is Wagner v. Cruz, 2:16-cv-00055, U.S. District Court, District of Utah (Central).

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