May 1, 2016


          In the previous installment I presented some of the reasons why I believe that Donald Trump should not be elected President of this country in November. They are common knowledge and Republican Party bosses are trying their best to get rid of this interloper and loose cannon they cannot control. But this seems to become increasingly more difficult. After Trump’s loss in Wisconsin there was hope in their circles that they could derail the Trump bandwagon by putting all their resources, and most of all the money, behind his only other viable challenger Ted Cruz. The strategy was, and still is, to deny Trump the required 1273 delegates in order to allow the Convention delegates to vote for an alternative standard bearer, who by the laws of delegate arithmetic would in all probability be Ted Cruz. But Trump’s triumph first in New York and subsequently the entire five northeastern states seems to be making this plan considerably harder to execute.

          We now must come to grips with the fact that the US, which regards itself as the paragon of democratic values, is in fact quite undemocratic because the popular vote, the expression of the will of the actual adult population, is meaningless. The most recent example is the 2000 election when Al Gore had won the popular vote but fell short of delegates in Florida where George W. Bush’s brother, Jeb, was governor at the time. Our fate lies in the hands of party bosses and when all else fails in the Supreme Court where nine unelected judges decide who should be President. Let us remember that the disastrous Bush presidency was bestowed upon us by one vote of the Supreme Court.

This is what Jefferson feared might happen but in his days when the vast distances as well as the desire to safeguard the rights of less populous States prevented a genuine democracy, where the plurality of actual votes cast is the deciding factor. The choice of Representative government was the only viable solution. But his was the 18th century and nearly 250 years later we are still saddled with a system that is outdated and may potentially paralyze the country. Let me now briefly explain the current electoral system because the full dimension of its arcane nature had until recently been unknown to me. I have previously discussed some aspects (March 1, 2008 Voting in America) but it bears repeating and to expand on some aspects. Nevertheless I must admit that although having tried to take a crash course in electoral politics I’m still not clear on all aspects of this arcane topic. But I am in good company in my relative ignorance. Last Sunday’s Parade section of The Salt Lake Tribune had a special section on “Does your Vote Count?’ by Kathleen McCleary where she quoted, Associate Professor of political science at Fordham University Christine Greer, “ For most Americans, even those who study it, the process is still a mystery.”

Keeping the above in mind I will try to unravel this mystery to at least some extent. The official election process starts in the beginning of February when the Democrat and Republican Party of each State, hold either a “Primary” or “Caucus” where delegates are chosen. The major difference between the two methods, which are anchored in the laws of the various States, is that the Primary voting process is essentially the same as in the general election with the exception that, depending upon the State one lives in, voting for a given candidate may be restricted to registered members of that Party. In Utah the Democrats allow any registered voter to cast their vote for one of the various democratic contenders. The voting results of a caucus are less representative for the district the caucus is held in because only the most stalwart supporters of a given party will make the effort to spend an evening being harangued by a number of speakers who extol the virtues of their contender for the nomination.

Every State is thereafter confronted with quite a number of chosen delegates but although they can go to the Convention not all of them are entitled to cast their votes. Each State is only allowed a limited number of voting delegates and these are no longer elected; they are appointed by the Party bosses. This is how “the fix is in” upon which the Cruz supporters at this time put their hopes. Trump in his victory speech after last Tuesday’s success kept pointing to how many more millions have already voted for him rather than Cruz or Kasich, which entitled him to the status of “presumptive nominee.” But those millions are useless unless he can come up with 1273 delegates by June 8 when the primary season ends. The Cruz campaign officials are, therefore, behind the scenes eagerly working in each State, so that the voting delegates at the Convention are Cruz rather than Trump supporters. Trump as a real-estate entrepreneur and TV personality may not have had the political savvy to see what was going on behind his back but may by now be learning the facts of life.

The beauty of the delegate process is, as Cruz supporters see it, that 1) it can influence who can vote at the Convention; 2) if they can get Kasich out of the way they may garner enough votes in the remaining Primaries/Caucuses to keep Trump from reaching the magic number of 1273, and 3) if Trump falls short on the first ballot even his delegates are then free to vote for someone else who, as they hope, will be Cruz. When one realizes that each party also has a given number of “superdelegates,” who are not bound to any specific candidate, it is readily apparent that Trump still has a fairly tough row to hoe before the “presumptive nominee” becomes the actual one.

Trump, by now, is obviously aware of these facts of life and that Cruz, whom he relegated earlier in the campaign to “pussy” status, has grown into a veritable tiger who might snatch the prize from him. He, therefore, resorted to threats.  If the party establishment were to deny him the nomination because he was a few delegates short of the required number and gave it to either Cruz or Kasich who have far fewer delegates, or even to someone from their party who has not even participated in the grueling campaign, all hell will break loose. I am sure that he means it and since his core constituents are what is in common parlance called “the street” he has the clout to make good on the threat. But before we go into the question of Cruz’s qualifications for the highest office of the land we need to remember that our byzantine electoral process does not stop with the November election.

After the votes of November 8 have been counted the Electoral College will come to the fore. This “College” has no domicile anywhere and consists of 270 stalwarts from the two political parties who will be doing the actual voting for our next president. This means that one can vote for instance for Bernie Sanders in November but this would be simply a protest vote because he will not have Electors who could vote for him after November.

Each State has a certain number of Electors allocated that is based on the population of the state. Thus California has the most with 55, next in line is New York with 29 and Utah has 6. These people are chosen by the Party who had received the highest number of votes in the general election in their State. In the case of Utah it will go the Republican nominee because our politicians have sufficiently gerrymandered the voting districts to effectively prevent a Democrat from gaining national high office. Barring unforeseen circumstances the electors will have a meeting in December where they cast their vote by paper ballot. The result will be sent to the Vice President, as President of the Senate, and other high officials. Their work is then finished and on January 6 of next year Congress will meet, tally the votes and announce who the President will be on Inauguration day. I have gone into this matter in some detail because this process, although no longer reflecting the realities of the 21st century is anchored in the Constitution and any genuine election reform would probably require a Constitutional Amendment that has to be ratified by three fourth of all States. This process usually takes years and is, therefore, only infrequently set in motion.

At present we only have a choice between two political parties who serve us nominees they approve of. Independents have no voice in this process and the only way to register disapproval is by casting a protest vote or not participating in the voting process. The goal of each Party is to promote their agenda and when these two agendas conflict stalemate occurs. This is the case today where the members of Congress hardly talk to their opposite colleague with resulting gridlock.

As leader of their Party, Presidents are faced with dual loyalty: the Party and the country at large. This can be a difficult task and the phrase “rule by the people, for the people” is fantasy that didn’t exist even in Lincoln’s time. Theoretically a third, more centrist, party could be formed but this effort has historically been quite unsuccessful in this country. Its formation would take time and money although in an era where social media have become powerful it may no longer be impossible. But even if there were to be large popular support the constitutionally required byzantine Delegate - Convention - Electoral College route would still have to be retained.  

Since we are faced with these realities let us now try to answer the question: Who is Ted Cruz? Rafael Edward Cruz was born in 1970 in Calgary, Alberta, of a Cuban father and American mother. At his age of four years the family moved to the US and Ted, as he now calls himself, diligently applied himself to his studies. He first graduated from Princeton and subsequently Harvard Law School. His professional life was largely spent in the political arena and his various appointments can be found on Wikipedia. He won the election for junior Senator from Texas in 2012 where he now chairs the Judiciary Subcommittee on Oversight, Federal Rights and Agency Activities as well as the Commerce Subcommittee on Space, Science and Competitiveness. In addition he was appointed in November 2012 to Vice-Chairman of the National Republican Senatorial Committee. His eyes were, however, on the Presidency and in March of 2015 he set out on the path towards this goal.

His claim to fame in the Senate arrived in March of 2013 when he gave an impassioned 21 hour speech in favor of the government shutdown in order to prevent funding for the Affordable Medical Care Act or Obamacare for short. It was an exercise in futility that cost the government $20 billion and accomplished nothing. The Act was passed, the rest of the senators were annoyed by the conduct of this upstart and even some of the major Republicans voiced their disapproval. His subsequent conduct also did not endear him to his colleagues and he is probably the most disliked member of the Senate. He knows it and wears it as a badge of honor. Since he owes his seat to the ultra-conservative Tea-party (October 1, 2010. Season of Discontent) he views his obstruction of government as a promise kept to his voters, thereby disregarding that they represent only a small fraction of the extreme right wing of the party. He also seems to see himself in the light of the movie “Mr. Smith goes to Washington,” but without Jimmy Stewart’s engaging qualities.

The reason why he is disliked resides not only in his political beliefs but also his abrasive personality structure. He throws insults around without their even being grounded in reality. For instance: he accused Obama of “openly desirous to destroy the Constitution of the Republic” and the Iran nuclear agreement “will make the Obama administration the world’s leading financier of radical Islam.” His anger is, however, also directed at his own party’s representatives. They were labeled as “squishy” on gun control; Senate Majority Leader, Mitch McConnell, had been “telling a flat-out lie,” and the Republican majority in both Houses of Congress has an insufficiently conservative record. In sum and substance: people, and especially members of the Grand Old Party, don’t like to be scolded by an upstart of Cuban descent. This led to a couple of unsavory epithets such as by former Speaker of the House, John Boehner, who called him “Lucifer in the flesh,” or Representative Peter King of NY, likewise a Republican, who stated that Cruz “gives Lucifer a bad name.” Although this was hyperbolic rhetoric these voices of disapproval have been joined by others of his colleagues who include our senior Senator Orrin Hatch. His junior partner representing our State, Mike Lee, is, however, a fervent devotee who tries to rally support for Cruz in the Senate in order to lift him from the scant six, out of 54, who Cruz can currently count on.

The fact that Cruz was born in Canada might have made him ineligible for the Presidency as Donald Trump pointed out in one of the early debates. Article II of the Constitution states, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of the 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.” “Natural born” was the issue “the birthers,” including Trump, had raised against Obama, and this year it was used to abort a presidential run by Cruz. Several law-suits were filed in a number of States but so far all of them have been dismissed by the various courts.

Yet we are stuck with an ambiguous phrase. For a physician there is no problem: vaginal delivery is natural born while a Caesarean section is not. But to ascertain the intent of the framers of the Constitution, especially by lawyers, is not that simple. They don’t deal with facts but “opinions” and “interpretations.” These can widely differ depending on the political views and personal bias of the judge. Constitutional lawyers are aware of the problem and have noted that the Supreme Court has never issued a ruling on the topic. What we have instead is a series of laws passed by Congress as to who is a citizen.

The phrase natural born had its origin in English law which initially defined it as having been born in the country rather than elsewhere. But this presented a problem; initially for diplomats who were stationed outside the country and subsequently military personnel. The phrase was, therefore finessed into ius loci, law according to birthplace, and ius generis, law according to descent. The current terms are ius soli and ius sanguinis. The latter initially conferred the citizenship of the father automatically to his child. In 1934 it was widened by Congress to include mothers. In the Obama situation the objection by the “birthers” ran aground on ius soli as well as ius sanguinis. Hawaii is part of the US and Obama’s mother was an American citizen. In the case of Cruz the ius sanguinis of the mother’s citizenship is used by his supporters while ius soli is demanded by his detractors. As far as the Canadians were concerned Cruz had ius soli citizenship until he resolved this duality by renouncing it in 2013.

As mentioned earlier concerned lawyers filed briefs in various States for the court to decide the issue of Cruz’s eligibility for the Presidency. These well-meaning individuals were concerned that if he were to win the nomination and/or election and a successful challenge were to be filed thereafter the country would descend into a similar or worse turmoil than in the aftermath of the 2000 election. Better now than later was the motive. Yet all suits were dismissed for “lack of standing” of the plaintiffs. The courts commented that Cruz had not personally harmed the plaintiffs and it was impermissible to argue on what might happen in the future.

As mentioned the Supreme Court has never ruled on the issue, but after Mr. Walter M. Wagner’s suit was thrown out in a Utah court for “lack of standing,” he succeeded in having it placed on its docket. It is, however, highly unlikely that it will be taken up in the foreseeable future. The Court is currently crippled due to the refusal of the Republicans to allow a Senate vote to replace the recently deceased Judge Antonin Scalia and the eight judges are evenly divided among the two political parties. In addition even the full court may not want to address this “can of worms” with all of its ramifications.

Nevertheless the problem of ius soli versus ius sanguinis will have to be taken up at some point because it is also tied to the illegal immigration issue. The children of parents who have illegally entered the country are “natural born” and therefore US citizens. Illegal immigration is a serious issue in the current election campaign, especially by the Republican candidates, and Donald Trump said that he would deport all of the 11 million illegal aliens who currently reside in this country. Since one cannot deport American citizens this would mean that families would be sundered on a large scale, which is not likely to be tolerated. Trump has recently backed off this extreme position but the question lingers and will have to be resolved at some point. A complete discussion of “natural born” which shows the division of opinion by legal scholars on this matter is available on

At present the question is unresolved and the issue is dealt with according to political preference. Bloomberg reported on April 13 that “In the Texas case, Cruz argued the court system shouldn’t ‘“entangle itself in a political controversy’” and should steer clear of an issue the Founding Fathers reserved for Congress. The article also stated ‘“The Constitution commits decisions about presidential eligibility to the House of Representatives and the Electoral College,’” the senator’s lawyers said in court filings.” But the reference by Cruz’s lawyers to the Electoral College and the House of Representatives being responsible for these issues may not be valid. According to the Constitution, these agencies only come into play if the Electoral College is deadlocked and cannot agree on a presidential nominee. The question of what may be called a presidential eligibility challenge is not addressed in the Constitution and also would require an amendment. The meaning of natural born is indeed a serious problem because if the Republican Party were to nominate Ted Cruz as their candidate for the Presidency one can be reasonably certain that the issue will again come to the fore and especially if he were to win the November election, which is, however, unlikely.

There are several reasons why I believe that the Republican Party is not sufficiently suicidal to nominate Mr. Cruz as their candidate for the Presidency. The dislike of his personal characteristics has already been mentioned, but there are weightier issues because the real question is who can beat the almost certain Democrat nominee, Hillary Clinton. While she has likewise a great many negatives they are likely to shrink when compared to Cruz’s. His core voters are the Tea-party supporters and Protestant Evangelicals. While this may suffice for local and state-wide elections it is inadequate for the country at large which is mainly centrist in its political outlook. A Cruz nomination may well lead to a replay of the 1964 debacle when Barry Goldwater garnered 52 electoral votes and Lyndon Johnson 486, in spite of the beginning unpopularity of the Vietnam War. Goldwater’s “Extremism in the defense of liberty is not a vice,” was not a selling point at that time and neither is narrow dogmatism today.

We may now ask what Cruz’s policy positions are. His campaign website lists the following in this order: Restore the Constitution, Second Amendment rights, Secure the border, Stand with Israel, Religious liberty, Life marriage and family, Jobs and opportunities, Rein in Washington. They appear on the front page in block letters over a representative picture. The Chinese have told us long ago that a picture is worth a thousand words so I shall present the first six for flavor. Restore the Constitution shows George Washington standing on a podium facing a group of citizens with two of them seeming to want to get his attention. The second Amendment issue shows a rugged frontiersman standing on a granite rock overlooking a bushy hillside which presumably belongs to his ranch. Secure the border presents a fence for the southern side while on the northern there is an unpaved road with what may be freight cars behind. National defense has a picture of a bomber dropping his load. Standing with Israel depicts an earnest looking Cruz while he is being lectured by Netanyahu. Religious liberty shows a hefty open tome, apparently the Bible although the facing pages show blank inserts, with an American flag in the background.

These pictures suggest to a longing for an imagined past which Cruz intends to carry into the future. In regard to the Constitution he seems to disregard that his eligibility for the Presidency is actually in doubt by scholars of that document. The frontiersman with his rifle nowadays exists only on TV and in movies; today’s problems are assault weapons being used by mentally deranged people on innocent victims. The fence on the southern border is so rickety that anyone with a wire-cutter can get through onto the road and hop on a freight car. But it seems to be Cruz’s answer to Trump’s wall. Bombers cannot solve our national defense problem but they still lurk as a dangerous fantasy in the minds of those who have never realized that carpet bombing did not win WWII. It also was totally ineffective in Vietnam where victory was achieved by the North with their dedicated foot soldiers while its Air Force largely consisted of Russian MIGs rather than bombers. ISIS also achieved its conquest of Syrian and Iraqi territory without air power. The picture reflects, however, Cruz’s pronouncement that he would carpet bomb ISIS. This shows a profound lack of historical knowledge and dangerous naiveté. The picture with Netanyahu is also highly instructive as well as disturbing. Cruz and his followers equate the State of Israel with religious Zionism thereby utterly disregarding the secular left and centrist elements of that country. To ally oneself with one extremist political element of a given country is a prescription for disaster. To identify the Bible with religious liberty is obviously designed to gain favor with his Evangelical constituents while it ignores the religious rights of our Muslims, Buddhists, Hindus and other religious minorities. I have dwelt on these pictures because they go to the heart of what we could expect from a Cruz presidency and there is no need at present to go into the explanation of all the issues as provided by the website.

Thus, the Republican Party indeed finds itself between a rock and a hard place. Trump is unacceptable for the reasons outlined in last month’s installment and the Cruz problems should by now be obvious. Nevertheless both contenders have something in common: they are stubborn and attention seekers. The major difference between them is that Trump is a pragmatist who will say anything that suits his purpose at the moment and rescind it the next when it is no longer useful. Cruz on the other hand is a dogmatist who will stick to his guns, regardless how nonsensical the effort may be, as his filibuster in the Senate proved. This makes him actually more dangerous for the country than his adversary. It will be interesting to see how the Party will extricate itself from this dilemma that it has created for itself by lurching too far to the right and obstructing the work of Congress in the House as well as Senate.

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