[EL] CA's law requiring presidential candidates to disclose tax returns

[Dan Meek]

I agree with Brad Smith that having state legislatures add this (or 
other) ballot access restriction on Presidential candidates is not a 
good idea. It is particularly a bad idea if combined with the NPV Compact.

The Oregon Legislature has twice (2017, 2019) defeated such 
restrictions, despite Democratic supermajorities in both chambers. My 
April 2019 testimony to the Oregon Legislature on this subject is here:
https://olis.leg.state.or.us/liz/2019R1/Downloads/CommitteeMeetingDocument/191267

I testified, in part:

Adoption of SB 594 and similar laws could effectively remove the choice 
of President from the voters. Instead, each state legislature could 
devise new disqualifications that would remove from its Presidential 
ballot the candidate disfavored by a majority of that state's 
legislators. The choice of President would devolve from the imperfect 
Electoral College system to decisions made by the state legislatures, 
not by the voters.

There would appear to be no reason why Red states would not also adopt 
laws similar to SB 594.  The laws in these states could disqualify major 
national Presidential candidates from the state ballots for a stated 
reason, such as:

     > failure to maintain lifetime membership in the National Rifle 
Association

     > failure to have run a successful business for a specified number 
of years

     > current or past membership in a labor union

     > under investigation for misuse of government email

The reason could be tailored by the state legislature to match the 
characteristics of the most prominent Presidential candidate of the 
party disfavored by that legislature. The obvious result would be that 
the Democratic candidate for President would likely be kept off 
sufficient ballots in every election as to make winning impossible, 
because Republicans control 31 state legislatures in states having 275 
electoral votes (while Democrats control only 18 legislatures).

SB 594 and similar laws would have even greater effect, if the NPV 
Compact were enacted by sufficient states.  In 2016, Hillary Clinton won 
the national popular vote (NPV) by 2.9 million votes.  Keeping Hillary 
Clinton off the ballot in Florida or Texas or Pennsylvania alone (all 
Red legislatures) would have swung the NPV vote to Donald Trump.  So 
would her exclusion from Ohio or Michigan plus any one of these states:  
North Carolina, Georgia, Wisconsin, Arizona, Missouri, Indiana, 
Tennessee, South Carolina, Louisiana, Alabama, or Iowa (all Red 
legislatures).

California could have reduced Trump's popular vote total by 4.5 million; 
New York could have reduced it by about 2.8 million; and so on. But Red 
legislatures could reduce the popular vote of the Democratic candidate 
more than Blue legislatures could reduce the popular vote of the 
Republican candidate.

Dan Meek

	503-293-9021 	dan at meek.net <mailto:dan at meek.net>	855-280-0488 fax




On 7/31/2019 11:58 PM, Smith, Brad wrote:
> I agree with rick p and dan on first A and tashjian lines, but I do 
> think Thornton is dispositive. The court has never upheld ballot 
> access measures that are unrelated to what it sees as managing the 
> electoral process—deadlines, some measure of popular support to 
> prevent clutter, etc. Sore loser laws would seem to be the one 
> exception, but even they guarantee a candidate one bite at the 
> electoral apple. The court will not uphold a measure that deprives a 
> candidate with a reasonable chance of winning from being on the 
> ballot, esp in a federal and national race. Ohio will require release 
> of undergrad transcripts and admissions files (Obama), Georgia will 
> require release of all past related job application info (Warren) etc. 
> States will definitely look to harm their rivals.
>
> Final point—anyone behind NPV should strongly oppose this—there is no 
> legitimacy at all to NPV if states can devise ways to keep major 
> candidates off the ballot.
>
> I see no way this measure survives.
>
> Brad Smith
> Sent from my iPhone
>
> On Jul 31, 2019, at 5:57 PM, Lowenstein, Daniel 
> <lowenstein at law.ucla.edu <mailto:lowenstein at law.ucla.edu>> wrote:
>
>>    ** [ This email originated outside of Capital University ] **
>>
>>             I have not been following this discussion (the joys of 
>> retirement!), but this morning I chanced to read Rick P.’s message 
>> below.  I am writing simply to suggest that I believe there is an 
>> additional First Amendment problem with the new California law, in 
>> addition to the one under the /Anderson/ line of cases. The 
>> disclosure requirement is an interference with a political party’s 
>> right to nominate the candidate of its choice and to set the 
>> procedures for determining its choice.  In other words, there is 
>> probably a serious potential challenge under the /Tashjian/ line.
>>
>>             In the term limits case, /U.S. Term Limits v. Thornton/, 
>> I submitted an amicus brief in behalf of then-Congressman Howard 
>> Berman, in which I relied on the /Tashjian/ line as a ground for 
>> striking down the term limit even if the Court decided (which it did 
>> not) that the limit was not a qualification because (in Arkansas and 
>> in some though not all of the other states that had adopted 
>> congressional term limits) a candidate could still be elected as a 
>> write-in.  Even under that assumption, the fact remained that the 
>> party was precluded from nominating the candidate it preferred.  
>> Under the California law, the party is not precluded from nominating 
>> the candidate of its choice.  Trump (or any similarly situated 
>> candidate) could be nominated even without the opportunity to win 
>> delegates from California.  But the law interferes with the party’s 
>> ability to control the process by which the candidate is selected and 
>> does so to a greater degree than in /Tashjian/ itself.  I thought the 
>> argument I made in /Thornton/ was very strong, indeed, probably 
>> unanswerable.  The California case is not identical to the term 
>> limits case, and I have not attempted to think through whether there 
>> are distinctions that could be determinative.  But it does seem to me 
>> that anyone working on either side of the controversy raised by the 
>> California law or as a scholar trying to understand it ought to give 
>> serious consideration to the /Tashjian/ line.
>>
>> Best,
>>
>>                        Daniel Lowenstein
>>
>> Director, UCLA Center for the Liberal Arts and Free Institutions (CLAFI)
>>
>> Emeritus Professor of Law, UCLA
>>
>>        (310) 825-5148 (o)
>>
>> (818) 632-7955 (m)
>>
>> *From:*Law-election <law-election-bounces at department-lists.uci.edu 
>> <mailto:law-election-bounces at department-lists.uci.edu>> *On Behalf Of 
>> *Pildes, Rick
>> *Sent:* Wednesday, July 31, 2019 8:06 AM
>> *To:* Election Law <law-election at uci.edu <mailto:law-election at uci.edu>>
>> *Subject:* Re: [EL] CA's law requiring presidential candidates to 
>> disclose tax returns
>>
>> While I think the major constitutional issue confronting CA’s 
>> tax-disclosure requirement for presidential primaries will be based 
>> on the First Amendment, I noticed that Rick Hasen has suggested the 
>> requirement might violate Art. II of the Constitution, on the theory 
>> that it imposes an additional “qualification” presidential candidates 
>> must meet beyond those specified in Art. II.
>>
>> If courts do strike this requirement down, I want to flag one thing 
>> that’s at stake in whether they do so on First Amendment or Art. II 
>> grounds.  Let’s suppose Congress, rather than a single state, were to 
>> impose a general requirement that all presidential primary candidates 
>> had to disclose their taxes in order to be listed on primary 
>> ballots.  If the CA requirement is struck down as an effort to impose 
>> an additional “qualification” on who can be President, then it is 
>> just as unconstitutional for Congress to impose such a 
>> “qualification” as it is for any one state.
>>
>> In contrast, if the courts strike down CA’s law based on the First 
>> Amendment, as reflected in the analysis I quoted earlier from 
>> /Anderson v. Celebrezze/, that could easily leave open the 
>> possibility that a congressional-imposed requirement would still be 
>> upheld. /Anderson /is based heavily on the distinct problems created 
>> when individual states try to control what is essentially a national 
>> election process. /Anderson / can be thought of as a dormant commerce 
>> clause doctrine for national elections. In various contexts, the 
>> Court has recognized limits on the power of individual states to 
>> interfere with national election processes (and has viewed 
>> presidential primaries as such a process).  Individual states face 
>> limits in trying to interfere with what is essentially a national 
>> market.  But Congress might have power to impose a national rule (to 
>> be sure, there would still be plenty of constitutional questions 
>> about even Congress doing so).
>>
>> Also, I am skeptical about whether CA’s law should or would be 
>> treated as imposing a “qualification” on presidential candidates.  In 
>> the term-limits case, /U.S. Term Limits v. Thornton/, on which this 
>> “qualification” argument is mainly based, the law there barred 
>> candidates from being on the ballot if they had already served three 
>> terms in the House or two in the Senate.  One can readily see why the 
>> Court would view that as imposing a “qualification” for office:  you 
>> are not qualified if you have served “too long.”  But states impose 
>> all sorts of regulations on access to the ballot, and not every 
>> regulation is tantamount to a “qualification” for office.  Otherwise, 
>> all these regulations on ballot access would be constitutional.  I 
>> tend to think courts would view a requirement for disclosure of tax 
>> returns as a regulation on ballot access, not an additional 
>> “qualification” on who is eligible to be President.
>>
>> But in any event, the larger point still holds:  there is no doubt 
>> the CA law presents serious constitutional issues.
>>
>> Best,
>>
>> Rick
>>
>> Richard H. Pildes
>>
>> Sudler Family Professor of Constitutional Law
>>
>> NYU School of Law
>>
>> 40 Washington Sq. So.
>>
>> NYC, NY 10012
>>
>> 212 998-6377
>>
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