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

Wed Jul 31 07:06:12 PDT 2019

The California primary is irrelevant to the selection of delegates from California and who they vote for at the national convention. If, somehow, this isn’t struck down, and some protest candidate “wins” the California GOP primary instead of Trump, I expect the California state GOP convention will still send a delegation composed entirely of Trump-pledged delegates, and there’s nothing the state can do to prevent that. 

Sean Parnell

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Nate Persily
Sent: Tuesday, July 30, 2019 9:31 PM
To: Election Law <law-election at uci.edu>; Pildes, Rick <rick.pildes at nyu.edu>
Subject: Re: [EL] CA's law requiring presidential candidates to disclose tax returns

Here is the text of the bill that  was signed into law. 

https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB27

It applies to presidential and gubernatorial primaries. For reasons Rick mentions, the constitutional issues are somewhat different for the different offices.   The regulation of presidential primaries implicates both the candidates’ and the parties’ (state and national) constitutional rights. Unless I read it wrong, the actual implications for the 2020 Republican primary are  largely symbolic — that is, whether Trump’s name appears on the primary ballot in the state. Assuming the national Republican Party disagrees with this, they can do what the Democrats did with respect to Michigan and Florida in 2008: presumptively not include delegates from California (or more likely, simply have some procedure that ratifies a Trump-slate of delegates to the convention).  (If Trump had a serious challenger, it might be less purely symbolic  but the national party’s remedy would be the same and the state party might also have some options.)

Leaving aside the implications for 2020, there are different claims (and applicable precedent) for the candidates, state party, and national party.  I review some of them in this article:

Candidates v. Parties: The Constitutional Constraints on Primary Ballot Access Laws, 88 Georgetown Law Journal2181 (2001)

On Tue, Jul 30, 2019 at 6:06 PM Pildes, Rick <rick.pildes at nyu.edu <mailto:rick.pildes at nyu.edu> > wrote:

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 of voters. 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.”  <https://scholar.google.com/scholar_case?case=14828795262297953140&hl=en&as_sdt=6,33&as_vis=1> Cousins v. Wigoda, 419 U. S. 477, 490 (1975). 

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

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