“Birther bills” and their potential impact on state judicial candidates

Last night, the Arizona Legislature gave final approval of a bill (HB 2177) that would require presidential candidates to prove  they are natural born U.S. citizens (most likely through “long form” birth certificates) before their names can appear on the state’s ballot. At least 13 other states are considering or have considered and rejected such proposals this year. Several of these efforts, and related bills, would and could impact judicial candidates should they ultimately be adopted in 2011 or 2012.

Kansas HB 2224 would require candidates for state office to provide the Office of the Secretary of State a certified copy of the candidate’s birth certificate and the candidate’s drivers license or other government-issued identification. For judicial candidates, the birth certificate requirement would apply only if they are in a partisan election. For those courts (Supreme, Court of Appeals, and 17 of the state’s 31 District Court districts, and Municipal Courts) which use a merit selection system, candidates would not be required to produce the birth certificate.

Oklahoma SB 540 would allow any registered voter to challenge the U.S. citizenship of any candidate. The candidate would be required to produce documents supporting their citizenship, one of which may be a birth certificate.

Oklahoma SB 91 requires each candidate required to file a Declaration of Candidacy for any federal, state, county, municipal or judicial office, or for the nomination of a recognized political party, in any general, primary, or special election shall, at the time of filing the Declaration of Candidacy, provide proof of identity and eligibility to hold the office sought to the election board at which the Declaration was filed. Given that Oklahoma appellate judges must be at least 30 years of age this could possibly mean the production of a birth certificate (the bill lists other ways/documents to provide identity & eligibility).

While Oklahoma SB 91 may require a birth certificate for judicial candidates, Alabama SB 401 explicitly requires it.

Any person who seeks election and/or seeks ballot access for any election to any public office that has an age requirement for election to that office shall provide a certified copy of his or her birth certificate that includes the date and place of birth when the person qualifies for election to that office.

While there appears to be no minimum for Alabama appellate and most trial judges, there is a maximum of 70 (Amendment 328, Section 6.16). Could “age requirement” be construed to mean proof the judicial candidate has not reached the magic number of 70? The exception to the no-minimum-age-requirement is Alabama Municipal Court judges, who as I noted in a recent blog post do have a minimum (18).

Finally, Maine’s HB 27 would have the effect of requiring the state’s Probate Court judges provide birth certificates. The state’s other judges (Supreme, District, Superior) are all nominated by the state’s Governor and confirmed by the Senate and therefore not considered electoral candidates.

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