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

[Mark Scarberry]

If such a restriction is imposed, such that a candidate is successfully excluded from the ballot, the National Popular Vote Compact (if effective) would make it essentially impossible for the candidate to win. This is only one of the potentially objectionable features of the NPVC (which I will argue, in an article in preparation, is unconstitutional on other grounds). The effect on the voting in other states and on choice of the nation's President would, in that circumstance, implicate Justice Stevens's concerns to an intolerable degree.

With regard to the NPVC, see the excellent analysis that my colleague Derek Muller has provided.

Mark

(Sorry for making such an obvious point.)

Mark S. Scarberry
Pepperdine University School of Law
________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Pildes, Rick <rick.pildes at nyu.edu>
Sent: Tuesday, July 30, 2019 3:06 PM
To: Election Law Listserv
Subject: [EL] CA's law requiring presidential candidates to disclose tax returns

I just posted this to the Election Law blog:

The Central Issue in the Constitutional Challenge to CA’s New Law Denying Ballot Access to Presidential Candidates Unless They Disclose Their Tax Returns<https://electionlawblog.org/?p=106702>
Posted on July 30, 2019 2:54 pm<https://electionlawblog.org/?p=106702>by Richard Pildes<https://electionlawblog.org/?author=7>

The Supreme Court has long recognized that laws regulating candidate access to the ballot implicate the First Amendment and associational rights ofvoters. As a result, the Court has held unconstitutional various regulations that impose “undue burdens” on ballot access, including in the context of presidential primaries.

Indeed, in the one case perhaps closest on point to this new California law, the Supreme Court — in an opinion by Justice Stevens — has held that when such laws involve the presidential election process, the courts must be particularly careful to scrutinize such laws closely. The reasons, according to Justice Stevens for the Court in Anderson v. Celebrezze, 460 US 780 (1983), are these:

Furthermore, in the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States. Thus in a Presidential election a State’s enforcement of more stringent ballot access requirements, including filing deadlines, has an impact beyond its own borders.Similarly, the State has a less important interest in regulating Presidential elections than statewide or local elections, because the outcome of the former will be largely determined by voters beyond the State’s boundaries. This Court, striking down a state statute unduly restricting the choices made by a major party’s Presidential nominating convention, observed that such conventions serve “the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State.”Cousins v. Wigoda, 419 U. S. 477, 490 (1975)<https://scholar.google.com/scholar_case?case=14828795262297953140&hl=en&as_sdt=6,33&as_vis=1>.

There are no bright-line doctrinal rules here. The Court will weigh the “character and magnitude” of the burden the law imposes against CA’s legitimate justifications for it. But that process of analysis will include significant consideration of the issues that Anderson identified in striking down the Ohio ballot access law at issue there.


Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square So.
NYC, NY 10014
212 998-6377

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