States Open Door To Foreign-Born Presidential Candidate

Shiva Ayyadurai has a very interesting political story to tell. He was born in 1963 in Bombay (now Mumbai) “a low-caste untouchable in India’s caste system” and moved with his family to the United States and a better life when he was seven years old. He graduated with an undergraduate diploma in computer science and electrical engineering from MIT, where he holds advanced degrees, according to his bio, including a PhD in biological engineering. 

He claims to have invented email and was reportedly briefly married to television star Fran Drescher. 

Now Ayyadurai wants to be president of the United States. But he can’t. While he became a naturalized U.S. citizen in 1983, he’s not a natural-born U.S. citizen — one of three requirements to be president. It’s clearly spelled out in Article II, Section 1, Clause 5 of the U.S. Constitution:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Ayyadurai has spent much of his campaign fighting that restriction with what one constitutional law expert describes as “bizarre” legal arguments. And, strikingly, some state election officials seemingly don’t know or care about the citizenship qualification that Americans have abided by for the better part of 240 years. 

Perhaps such lack of care on constitutional detail speaks to a bigger citizenship issue: The Democrat Party’s quest to involve foreign nationals in U.S. elections. 

‘Erroneous Placement’

Minnesota resident and conservative activist Jesse Smith last week filed with the Minnesota Supreme Court a petition “to correct the erroneous placement” of Ayyadurai on the November ballot. The petition, which names Democrat Secretary of State Steve Simon as the defendant, asks the court to force Simon to remove Ayyadurai from the general election lineup. 

Why? Because the Constitution disqualifies him. While the independent candidate may have compelling policy ideas and an understandable contempt for Dr. Anthony Fauci and lockdowns, Ayyadurai is not a natural-born citizen. 

“Because Dr. Shiva Ayyadurai is a naturalized, but not natural born citizen, under Article II, he is ineligible to hold the office of President under the ‘natural born Citizen’ requirement,” states the petition, filed on behalf of Smith by election integrity attorneys Erick Kaardal and Elizabeth Nielsen. The filing also argues that Simon has errors under state statute, which prohibits “placement of a candidate on the official ballot who is not eligible to hold the office for which the candidate is filed.”

Time is of the essence, the plaintiff argues. 

“Because the early voting in Minnesota begins on September 20, 2024, meaning ballots are to be printed soon or are being printed, this Court must take immediate action to direct Secretary of State Steve Simon and his office to remove Dr. Shiva Ayyadurai …,” the petition filed last week states. 

To be sure, Ayyadurai is a very minor candidate in a presidential election dominated by former President Donald Trump and Vice President Kamala Harris. The independent will garner relatively few votes in Minnesota or elsewhere. But in another close, hotly contested election where every vote could prove critical, minor contestants could peel away just enough support to make a difference. 

The anti-vax activist and basher of the elite class who has unsuccessfully run for U.S. Senate in Massachusetts might be more likely to take a sliver of votes from Trump in Minnesota and elsewhere. But his position on ballots presents a core constitutional question. 

‘No Position’

On Thursday, Simon certified the presidential candidates appearing on Minnesota’s Nov. 5 ballot. Other than Trump and Harris, the list includes Ayyadurai and his running mate, the leftist Green Party ticket, a couple of socialist party tickets, the Libertarians, independent far-left candidate Cornel West and his running mate, and independent Robert F. Kennedy Jr. — despite the fact that he dropped out last week and has endorsed Trump. 

In his response to the petition before the Minnesota Supreme Court, Simon disputes “particular contentions … regarding errors or omissions that the Secretary has allegedly committed,” but “takes no position on” Smith’s “contentions” about Ayyadurai’s ineligibility to appear on the ballot. The secretary also insisted that he “lacked sufficient knowledge to admit or deny the factual allegations in the petition related to whether Ayyadurai is a natural born citizen,” the left-dominated Supreme Court noted on Friday.

No position? Doesn’t the secretary of state agree that the first constitutional requirement to be president of the United States of America is to be a natural-born citizen? 

“Our office doesn’t comment on pending litigation,” Peter Bartz-Gallagher, communications director for the Minnesota Secretary of States’ office told me in an email response to my questions. 

It appears the office doesn’t consider the constitutional requirements when processing ballot access requests. 

In his court filing, Simon’s attorney said staff “determined that the petition met all applicable form and signature requirements provided by Minnesota law.” Further, the response argues that the secretary has “no legal authority to determine whether a candidate for President is eligible to appear on the ballot.” So, Simon’s staff didn’t investigate whether a candidate “meets the federal constitutional requirements to serve as President, including whether the candidate is a natural-born citizen.” 

How difficult would it be to investigate Ayyadurai’s citizenship status? Not very. He’s made his humble origins as an Indian-American a central part of his story and his campaigns.

On Friday morning, the state Supreme Court dismissed the petition because Smith’s attorneys failed to “file the proof of service required by our prior orders.” That’s true. The court demanded the law firm “personally serve” Ayyadurai and all of his fellow presidential candidates with the petition, the court’s briefing order, and other documents within four days of the petition being submitted — an insane request in a short window of time. Kaardal previously told me the court’s order was logistically impossible and cost-prohibitive.

“By failing to comply with the service requirements in our orders, petitioner has deprived Ayyadurai and the other presidential candidates with any meaningful opportunity to respond to the petition by the timeframes in our briefing order,” the court’s decision states.

So a candidate that can’t meet the first requirement to be president in the U.S. Constitution will remain on Minnesota’s November ballot.

‘Bizarre Claims’

Ayyadurai, born Vellayappa Ayyadurai Shiva, filed a preemptive federal lawsuit earlier this year against Attorney General Merrick Garland asking for “declaratory judgment that he is eligible to serve as President notwithstanding the natural born citizens clause … .” He claimed his “campaign will be hampered by a variety of state and federal officials who will refuse to permit ballot access to [him] on the basis of his place of birth.” 

The lawsuit was dismissed.

In the complaint, Ayyadurai argued that the First Amendment guarantees his right to run for president regardless of the Constitution’s pesky qualifications. And he asserted that such a qualification has been “abrogated and implicitly repealed” by the Fifth and Fourteenth Amendments to the Constitution.

Hans von Spakovsky, manager of the Heritage Foundation’s Election Law Reform Initiative and former member of the Federal Election Commission, had some pointed descriptors for Ayyadurai’s legal arguments. 

“They are nutty claims, bizarre claims,” he told me in a phone interview Thursday afternoon. “No one would take them seriously.” He added that there’s no reason why the Minnesota Supreme Court couldn’t take judicial notice of the federal court ruling, among others already raised. The petition before the Minnesota court, in fact, references the federal court case. 

Von Spakovsky said there have been instances of presidential candidates who were born overseas, like the late Sen. John McCain, who was born on the Coco Solo Naval Air Station in the Panama Canal Zone where his U.S. Navy officer father served. Ayyadurai’s situation is not the same. 

“There are sometimes provisions in the Constitution that are ambiguous; this is not one of them,” the constitutional law expert said. “The only reason to leave this individual on the ballot is for partisan political reasons because the Constitution is so clear.” 

‘At Face Value’

Minnesota is among at least three states that have granted Ayyadurai full ballot access as an independent presidential candidate, according to Ballotpedia. The others are deep blue Washington and, interestingly, deep red Iowa. 

Washington Secretary of State Steve Hobbs’ office did not respond to a request for comment. In a press release earlier this month, the office laid out the stipulations for candidates to qualify for the general election ballot. None explicitly mentions the constitutional requirement of being a natural-born citizen.

For Iowa Secretary of State Paul Pate, it’s a matter of trust. 

“The role of the Iowa Secretary of State’s Office is to accept filing paperwork from candidates in good faith and at face value,” Ashley Hunt, a media contact for the office, told me in an email response. “We do not investigate or verify a person’s place of birth, where they live, etc.” 

Objections may be filed with a state panel. Earlier this week, the panel voted to boot three Libertarian Party of Iowa congressional candidates off the November ballot after the party did not follow state law involving caucuses and conventions. 

‘I Do Solemnly Swear’

Ayyadurai has been disqualified on general election ballots in several states, including Michigan, New Jersey, New York, Utah, and, most recently Wisconsin, according to Ballotpedia. The Wisconsin Elections Commission on Tuesday voted 5-1 to keep the candidate off the Badger State’s November ballot because he failed to meet the Constitution’s citizenship requirement. He has lost multiple times in attempting to get on New Jersey’s presidential ballot, the Garden States Supreme Court handing Ayyadurai his latest rejection. 

“The case against Ayyadurai is a simple one: he was born in India to non-American parents, and was naturalized as an American citizen when he was 19. That entitles him to nearly every right afforded to any other citizen, but the U.S. Constitution explicitly requires that the office of president be held by a ‘natural-born citizen,’ which Ayyadurai isn’t,” the New Jersey Globe reported. 

In his presumptive filing in May in federal court, the independent argued  he suffered “an injury in fact because Utah and Wyoming have asked him to confirm that he is a natural born citizen as part of their ballot-access process.”  In Utah, Ayyadurai affirmed, “I do solemnly swear that I can qualify to hold that office both legally and constitutionally if selected.” 

In New York, it wasn’t the constitutional question but an “insufficient” number of signatures on his petition of candidacy, according to the New York State Board of Elections. The story was the same in Michigan, where the independent submitted just 889 of the 12,000 signatures needed, according to the state’s Bureau of Elections. 

Liberals have been pushing hard for noncitizens to participate in U.S. elections, a position underscored by Democrats in the House voting en masse against a bill this summer that would require proof of citizenship to vote in federal elections. 

In the Minnesota petition before the Supreme Court, Smith argues that including Ayyadurai on the general election ballot could harm the Minnesota voter.

“If Dr. Shiva Ayyadurai were to win Minnesota’s popular vote, thus gaining the Electoral votes, Minnesota would lose our Electoral votes and be subject to the rest of the nation,” the petition asserts. It acknowledges that such a possibility “may be small, but any candidate with their name on the ballot for any office has a potential to win.”

At the same time, constitutional law experts like von Spakovsky say allowing a foreign-born, naturalized citizen access to the presidential ballot changes the Constitution without the benefit of amendment. 

Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.