Could a 2010 Idaho initiative require presidential candidates to file birth certificates with the Idaho Secretary of State to qualify for the ballot?

Plain-English summary

The petition would have required candidates for President, Vice President, and presidential electors to provide copies of their birth certificates to the Idaho Secretary of State as a prerequisite to ballot placement. This was one of several "birther" initiatives that surfaced in state legislatures and ballot offices in 2010-2011 against the backdrop of the political controversy about President Obama's birthplace.

Attorney General Lawrence Wasden's certificate concluded the initiative was unconstitutional. The federal Constitution sets the qualifications for federal office, and states cannot add to them. Powell v. McCormack, 395 U.S. 486 (1969), held that even Congress itself could not exclude a duly-elected member who satisfied the constitutional age, citizenship, and residency criteria. The Supremacy Clause analysis extends the same logic to states: a state cannot impose additional ballot-access requirements on candidates who already meet the constitutional qualifications.

For the presidency specifically, U.S. Const. art. II, § 1, cl. 5 sets three qualifications: natural born citizen, 35 years old, and 14-year U.S. resident. The Constitution does not require any particular evidentiary submission to a state Secretary of State. The proposed Idaho rule would impose an additional pre-ballot-access requirement that the federal Constitution does not authorize.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Multiple states proposed similar measures in 2010-2012, including legislative bills (rather than initiatives) in Arizona, Oklahoma, and elsewhere. The constitutional analysis is identical regardless of vehicle: states control their own elections under U.S. Const. art. I, § 4 (the Elections Clause), but that authority does not extend to imposing additional qualifications on federal candidates. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), reinforced this rule in the congressional-term-limits context (not cited in the certificate but on-point).

The Powell line of cases distinguishes "qualifications" (which states cannot add to) from "ballot access procedures" (which states can regulate). A state requiring all candidates to file a sworn statement attesting to their constitutional qualifications, for example, would likely survive review. A state requiring a documentary submission that effectively gates ballot access on the state's evaluation of underlying eligibility crosses the line.

Common questions

Q: Why can't a state require birth certificates from federal candidates?
A: The qualifications for federal office are set in the U.S. Constitution. States cannot add to them. Powell v. McCormack held that even Congress, the body voting to seat its own members, cannot exclude someone who meets the constitutional qualifications. The Supremacy Clause prevents states from imposing stricter requirements on the same candidates.

Q: Could a state require a sworn statement of qualifications instead?
A: A state ballot-access rule that requires all candidates to file a sworn affirmation that they meet the constitutional qualifications is generally permissible as a procedural mechanism. The line is between procedure (asking the candidate to certify) and substance (gating ballot access on the state's documentary review of birth records).

Q: Did this initiative reach the ballot?
A: This is the certificate of review, the first step. The reader should consult Idaho Secretary of State election records to confirm whether the petition advanced.

Q: How is this different from voter ID requirements?
A: Voter ID rules apply to voters and are subject to a different line of cases (Crawford v. Marion County Election Board, 553 U.S. 181 (2008)). The certificate addresses candidate qualifications, which are constitutionally fixed in a way voter rules are not.

Citations and references

Statutes and constitutional provisions:
- Idaho Code § 34-1809 (certificate of review)
- U.S. Const. art. II, § 1, cl. 5 (presidential qualifications)
- U.S. Const. art. VI, cl. 2 (Supremacy Clause)

Cases:
- Powell v. McCormack, 395 U.S. 486 (1969), Congress cannot add to constitutional qualifications
- Dodge v. Woolsey, 59 U.S. 331 (1855), federal Constitution binds state officers

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C021610b.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

February 16, 2010

The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE MAIL

Re:

Certificate of Review
Proposed Initiative Relating to the Certification of Candidates For President, Vice President and Presidential Electors

Dear Secretary of State Ysursa:
An initiative petition was filed with your office on January 19, 2010. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. Given the strict statutory timeframe within which this office must review the petition, our review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only." The petitioners are free to "accept or reject them in whole or in part." The opinions expressed in this review are only those that may affect the legality of the initiative. This office offers no opinion with regard to the policy issues raised by the proposed initiative.

BALLOT TITLES

Following the filing of the proposed initiative, this office will prepare short and long ballot titles. The ballot titles must impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure. While our office prepares titles for the initiative, petitioners may submit proposed titles for consideration. Any proposed titles should be consistent with the standard set forth above.

MATTERS OF SUBSTANTIVE IMPORT

No State May Add to the Constitutional Qualifications of Office for Federal Officers

You have presented an initiative petition that, if adopted, will require candidates for President, Vice President, and their electors to provide copies of their birth certificates to the Secretary of State to permit the candidates to be placed on the ballot. The Constitution of the United States is the supreme law of the land, and all legislative, executive, and judicial officers of the United States and of the several states and all the people in the land are bound thereby. Dodge v. Woolsey, 59 U.S. 331, 1855 WL 8235 (U.S. Ohio), 15 L. Ed. 401 (1855). The United States Supreme Court held in Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L.Ed.2d 491 (1969), that the United States House of Representatives had no power to exclude from its membership any person who was duly elected by his or her constituents and who met the age, citizenship, and residence requirements specified in the United States Constitution. Under the Supremacy Clause of the United States Constitution, the states may not impose additional restrictions or limitations. So long as a candidate for the Senate or House meets the requirements set forth in the United States Constitution, he or she is qualified to run for federal office.

The same analysis applies to the Office of President. Article 2, Section 1, Clause 5 of the U.S. Constitution lists the qualifications of office. Notably, a person must be a natural born citizen, 35 years old, and a resident of the United States for at least 14 years. No requirement that birth certificates be shown to the Secretaries of State is contained within that provision. Naturally, following the previous analyses of the United States Supreme Court with regard to heightened state restrictions for Federal candidates, whose qualifications are outlined within the United State Constitution, these added qualifications are unconstitutional.

CONCLUSION

Based upon the above analysis and existing case law, it appears that the substantive provisions of this initiative, if adopted, would be declared unconstitutional.

CERTIFICATION

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style, and matters of substantive import. The recommendations set forth above have been communicated to the Petitioner via a copy of this Certificate of Review, deposited in the U.S. Mail to Alana Grimm, 2817 E. St. James Ave., Hayden, Idaho 83835-7544.

Analysis by:

BRIAN P. KANE
Deputy Attorney General