Christian Monterrosa/Sipa USA via AP Images
Cenk Uygur walks onto the stage at Politicon in Los Angeles, October 20, 2018.
Online media personality Cenk Uygur is running for the Democratic nomination for president. But before that, he’s really running to run for president, not just for his own benefit but for the roughly 24 million naturalized citizens in the United States, who are shut out of the ability to serve their country in this capacity.
There is a hearing this morning before the U.S. district court in Columbia, South Carolina, based on a complaint Uygur filed that seeks an injunction against the decision to take his name off the ballot for the February 3 Democratic primary. The South Carolina Democratic Party rejected Uygur’s bid to make the primary ballot—without refunding him the $20,000 filing fee—based on a reading of Article II, Section 1, Clause 5 of the Constitution, which says that only “natural born citizens” are allowed to serve in the office of the presidency.
Uygur argues that the denial of his petition for placement on the ballot violates a separate part of the Constitution: Section 1 of the 14th Amendment, which states that “All persons born or naturalized in the United States” are citizens, and that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws.” In the reading of Uygur and his team, this overrides the Article II restriction on naturalized citizens to become president.
Six states have let Uygur onto the ballot. Several others have rejected his attempt. The Federal Election Commission has allowed naturalized citizens to run for president since 2008, and indeed, Uygur is registered with them. “A naturalized citizen is not prohibited by the Federal Election Campaign Act (the Act) from becoming a ‘candidate’ as defined under the Act,” the ruling states.
Whether that candidate can serve is another matter. The South Carolina hearing will be the first step toward a legal ruling.
That constitutional issue will play out in courts. But Uygur says that there’s a deeper point here, about how naturalized citizens—which includes the current secretary of energy Jennifer Granholm (born in Canada), member of the Democratic House leadership Rep. Ted Lieu (D-CA, born in Taiwan), and former California Gov. Arnold Schwarzenegger (born in Austria)—are denied this privilege of serving in a way that nobody is inclined to defend.
“When groups of naturalized citizens ask for rights, almost everyone in power treats it with disdain,” Uygur says in an interview. “If you challenge anyone to think about it for a second, they say of course it’s discriminatory, yes it doesn’t make sense. It’s antiquated, anachronistic, and irrational.”
Uygur pointed to his nephew, livestreaming commentator and friend of the Prospect Hasan Piker. “Hasan was born here and left and then came back, so he can run. I wasn’t born here, I barely remember being born in Turkey, and I can’t run?”
Uygur also claimed that the Democratic National Committee has been calling state leaders to ask them to take him off primary ballots because of the natural-born citizen issue. The DNC has not yet responded to a request for a reaction to this.
If the courts decide that naturalized citizens actually cannot be discriminated against, it would make very clear that the Constitution is not an unchangeable document.
Various cases confirmed the presidential eligibility of Ted Cruz, born in Calgary, Canada, because his mother was a U.S. citizen. John McCain, born in the Panama Canal Zone, was also deemed a natural-born citizen because of his parents’ citizenship. The cases speak to the tortuous manner in which these questions have been decided in the past, which have nothing to do with fitness for office or loyalty toward the country. There’s no rationale other than “It’s in the Constitution.”
Indeed, in defending the movement to pull Donald Trump off of the presidential ballot for participating in an insurrection, Rep. Jamie Raskin (D-MD), ranking Democrat on the House Oversight Committee and a constitutional scholar, told CNN last Sunday that disqualifying Trump is the “most democratic” form of denial of eligibility for the presidency, “because it’s the one where people choose themselves to be disqualified.”
“We have a number of disqualifications in the Constitution for serving as president,” Raskin added, citing both Granholm and Schwarzenegger, and the age restriction that disqualifies people under the age of 35, like Rep. Maxwell Frost (D-FL). “Now would we say that that’s undemocratic?” Raskin asked. “Well, that’s the rules of the Constitution. If you don’t like the rules of the Constitution, change the Constitution.”
ACCORDING TO UYGUR, THE NATION ALREADY HAS. He cited a Supreme Court case from the 1960s, Schneider v. Rusk, which ruled that a naturalized citizen was illegally denied a U.S. passport on the premise that she lived in her former country for three years. The law enabling this, Justice William O. Douglas wrote, “proceeds on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country than do the native born. This is an assumption that is impossible for us to make … It creates indeed a second-class citizenship.”
The case does briefly refer to the Article II restriction of the presidency to natural-born citizens, and many have made the case that the Court recognized that exception, which would forbid Uygur from the ballot. He doesn’t agree. “They did not address the issue. Some people say, ‘Because they didn’t address it they must like it.’ No, the entire argument is that you cannot discriminate.” In other words, keeping Uygur off the ballot, he claims, violates his constitutional rights.
A separate point Uygur made is that Title VI of the Civil Rights Act of 1964 bars discrimination, including on the basis of national origin, for anything requiring government funding (and federal elections would seem to count). “You might have to rule Title VI unconstitutional if you can discriminate against naturalized citizens,” Uygur says. “I think [the courts] would be loath to say that.”
Not everyone agrees with these interpretations. I asked Erwin Chemerinsky, dean of the UC Berkeley School of Law, what he made of Uygur’s arguments. “The natural born citizen provision is deeply offensive,” Chemerinsky writes in an email. “But section 1 of the 14th Amendment addresses something different: who is a citizen of the United States. I would like to see it as modifying the natural born citizen clause, but I am skeptical that a court will accept that.”
That’s the issue in the case: not an interpretation of Article II, which is clear, but whether the 14th Amendment overrides Article II, which is less clear.
The natural-born citizen issue only comes up in rare contexts. We primarily heard about it in recent years when conservatives, including Donald Trump, tried to claim Barack Obama was ineligible to serve because he was born in Kenya.
Few delve an inch deeper to try to come up with why this ban should be imposed. If the courts decide that naturalized citizens actually cannot be discriminated against, and that the 14th Amendment does modify Article II, it would not only be a victory for roughly 7 percent of the U.S. population. It would make very clear that the Constitution is not an unchangeable document, and that it can indeed by updated to fit our modern times.
We use kid gloves with the Constitution to a frightening degree, allowing many of its clauses that force unequal representation, the chance for a president to be elected without a majority of the votes, and other inequities to fester. “You can make an argument on behalf of the Constitution and say, ‘Look, they were looking to perfect the union,’” Uygur says. “But you can’t say that and say that we shouldn’t fix it. Do you believe in perfecting the union or don’t you?”
People may not like that Uygur wants to run against Joe Biden, specifically because he doesn’t think that Biden can win in November. But the meta-issue of his candidacy, the attempt to invalidate an odious constitutional provision, can only be described as patriotic.
