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Can a California law requiring Trump to disclose his tax returns survive legal challenges?

Gov. Gavin Newsom
Gov. Gavin Newsom, shown in June, signed a bill Tuesday requiring all candidates to release five years of tax returns in order to appear on the 2020 California primary ballot. Legal experts expect a court challenge.
(Rich Pedroncelli / Associated Press)

Nearly 30 years ago, the U.S. Supreme Court decided 5 to 4 that states could not impose qualifications on candidates for Congress that were stricter than those specified in the Constitution, a ruling that could apply to presidential candidates.

The Constitution says that to be president, a person must be a natural-born citizen, a resident for 14 years and at least 35 years old.

A measure signed into law by California Gov. Gavin Newsom on Tuesday adds another requirement for presidential candidates who want to appear on the state’s presidential primary ballot: They must disclose their income tax returns.

Passed on a party-line vote, the law was clearly aimed at President Trump, who has refused to release his returns.

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Legal scholars said Wednesday that the 1995 ruling that barred states from imposing certain requirements for ballot access is likely to be at issue in litigation over the constitutionality of California’s new law. They disagreed, however, about whether the law would be upheld.

“This new law raises some very interesting and novel constitutional issues,” said UCLA constitutional law professor Adam Winkler. “Because it is novel, it is hard to know how the courts would go, but there is plenty of reason to think courts will be hostile to California’s requirements.”

One lawsuit has already been filed.

Roque “Rocky” De La Fuente, a perennial candidate who is seeking the Republican presidential nomination in 2020, sued California in U.S. District Court in San Diego on Tuesday to overturn the ballot requirement. The suit said California could not force him to waive rights he is guaranteed under federal law.

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UC Berkeley Law School Dean Erwin Chemerinsky, who believes the law is constitutional, said it could easily be distinguished from the 1995 high court ruling overturning state ballot qualifications.

That decision, U.S. Term Limits Inc. vs. Thornton, found unconstitutional state laws that denied ballot access to House of Representatives candidates who had already served at least three terms and Senate candidates who had served two terms.

“I think there is a huge difference” between California’s law and those at stake in the earlier case, Chemerinsky said.

The term limits ruling dealt with a state requirement that categorically prevented some incumbents from appearing on the ballot, while the California law has created a condition “that can be easily met,” he said.

The Supreme Court has ruled that states may have ballot qualifications as long as they don’t discriminate based on wealth or ideology, he said, and the state has an important interest in having its electorate informed.

“The Supreme Court has repeatedly and emphatically upheld disclosure requirements, saying the the interest in having voters informed justifies the burden on candidates,” said Winkler, the constitutional law professor.

Douglas W. Kmiec, professor emeritus at Pepperdine Law School, generally agreed, “given the unqualified power of the state legislatures to determine the method by which electors to the electoral college are chosen.”

Still, he said, the outcome of litigation over the law was hard to predict.

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“Overall, this has been an area of the Constitution where the court has not often given definitive guidance,” he said.

The prospects for the law would be better if it took effect after the 2020 presidential election, he said.

“Applying it beforehand gives it a rather distinct anti-Trump frame of reference that the court could find objectionable,” he said.

Theodore B. Olson, a high-profile lawyer who has argued frequently before the Supreme Court, said he believed the California law was unconstitutional.

“California can’t come along and say to get on the ballot, you have to disclose your tax returns,” Olson said. “And then Iowa might say you have to disclose records of domestic [litigation] with an ex-wife, and Alabama might say you have to disclose whether you have any illegitimate children.”

Such requirements could be aimed at a particular candidate and would amount to an unconstitutional interference by the states in the federal election process, he said.

Gene Schaerr, a constitutional lawyer who also practices before the Supreme Court, said federal law keeps tax returns confidential, and California cannot force a candidate to waive his or her rights under that law.

“I see it as a serious problem on both constitutional grounds and especially on policy,” Schaerr said. “You can imagine a host of other disclosures that states might want to adopt.”

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“If California could do this,” he said, “some people would undoubtedly want to know whether candidates have ever been treated for a mental illness or denied insurance.”

California was among 18 states this year with bills to require presidential candidates to disclose their tax returns, but it was the only state to enact the requirement.

Ten bills remain active in other states to create the requirement, said Mick Bullock, spokesman for the National Conference of State Legislatures.

Jan W. Baran, a Washington, D.C., attorney who has practiced political law for more than 40 years, said California can create tax disclosure requirements for state candidates but not for federal office seekers.

“We can amend the U.S. Constitution to require candidates for president to disclose their income tax returns, but you can’t do it by passing a single state law,” he said.

David Keating, president of the Virgnia-based Institute for Free Speech, said Trump could mount a write-in campaign in California or just skip the state.

Because no one significant is running against him, he will most likely have enough electors to win the nomination without California’s, Keating said.

“Whether it is constitutional or not, I don’t think it is clear,” said Keating, whose organization is part think tank and part law firm.


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