Lay aside the legal issues, of which there are many, that this raises vis-a-vis whether states can set their own standards for enforcing federal constitutional requirements. There’s another question that’s much more basic. Namely, what would this possibly accomplish?
B. The national political party committee for a candidate for president for a party that is entitled to continued representation on the ballot shall provide to the secretary of state written notice of that political party’s nomination of its candidates for president and vice‑president. Within ten days after submittal of the names of the candidates, the national political party committee shall submit an affidavit of the presidential candidate in which the presidential candidate states the candidate’s citizenship and age and shall append to the affidavit documents that prove that the candidate is a natural born citizen, prove the candidate’s age and prove that the candidate meets the residency requirements for President of the United States as prescribed in article II, section 1, Constitution of the United States.
C. The secretary of state shall review the affidavit and other documents submitted by the national political party committee and, if the secretary of state has reasonable cause to believe that the candidate does not meet the citizenship, age and residency requirements prescribed by law, the secretary of state shall not place that candidate’s name on the ballot.
If you’re going to push a law as contentious as a Birther bill, knowing full well the type of beating you’ll take for it in the media, wouldn’t you want to at least make sure it achieves what you want it to achieve? Dave Weigel’s right: If this law passes and somehow holds up, The One will comply with it by providing the same Certification of Live Birth he produced two years ago. There’s no demand here for anything more specific than that — no request for an “original birth certificate” or attending obstetrician’s affidavit, etc., just “documents” that prove to a “reasonable” degree that the candidate was born in the good ol’ U.S. of A. And since the COLB is an official state document endorsed by Hawaii, there’s no reason why it wouldn’t meet a reasonableness test. Which makes me think this bill is even more purely political than it seems, designed to pander to Arizona Birthers while slyly doing nothing to advance the ball on their behalf.
But there’s an even more basic question. Let’s say the statute did demand “original” documents and that, for argument’s sake, the only thing in Hawaii’s files is an affidavit signed by Obama’s now-dead mother attesting that she gave birth to him at home. (Hawaii’s director of health has said publicly that she’s personally seen The One’s “original vital records.”) Why wouldn’t that be proof enough for Arizona if it’s proof enough for Hawaii? It’s a sworn statement and you can’t cross-examine the person who gave it, so barring any conflicting evidence, you’d have no reason to doubt that it’s true. Is Arizona going to kick a sitting president off the ballot because his mother gave birth to him at home, on American soil, with only family in attendance as witnesses? The only hope Birtherism has, apart from the emergence of bombshell evidence that eliminates the possibility of a Hawaiian birth, is that there are no vital records whatsoever in Hawaii’s files and that the entire department of health is engaged in some sort of grand conspiracy. Which, I’m sure, some people will eventually believe.
What I will say in the Birthers’ semi-defense is that I think there are actually two camps inside the movement. One is the group that simply wants Obama out of office as soon as possible and has latched onto this thin, exceedingly lame reed as a way of making it happen. The other is a group that’s grown curious about the fact that … no official enforcement mechanism for the Constitution’s natural-born requirement seems to exist, even though it’s a baseline requisite for the presidency. To them, it’s not an Obama issue so much as a “shouldn’t someone somewhere be authorized to check this sort of thing?” thing. In which case, there’s an easy way to depoliticize this while creating a legislative fix: Simply have Congress pass enforcement guidelines and provide that they don’t take effect until 2016. That way The One is exempt and this problem doesn’t recur in the future. Easy peasy.