President Trump and the Republican National Committee filed suit this week challenging California’s new law requiring candidates in presidential primaries to release five years of tax returns. The challenges will almost certainly prevail.
California’s law, if allowed to stand, would open a Pandora’s box of state electoral meddling for partisan gain.
Defenders claim the measure falls within the state’s power to select presidential electors, much like its power, granted by the Constitution, to regulate the “Times, Places and Manner of holding Elections” for members of Congress.
But the law runs smack into the Constitution’s protections for political parties and federal elections. The 1st Amendment guarantees the freedom to form political parties that function independently of the government. Allowing California to restrict who can appear on primary ballots interferes with the right of the parties to choose their leaders. The Constitution also prohibits states from effectively creating new qualifications for federal offices.
In addition to guaranteeing freedom of speech, press and religion, the 1st Amendment also safeguards “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Supreme Court has read this language to protect a freedom of association, including the right to form political parties that compete in elections, advocate programs and policies, and run candidates for office, including the presidency.
Although seemingly nonpartisan, the California ballot law plainly disrupts Republicans’ associational rights. As a unanimous Supreme Court observed in 2008, a political party has the right “to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform.” By denying California Republicans the ability to vote for President Trump in their own primary, the state is obviously abridging their right to decide whether Trump “best represents [the Republican] political platform.”
It seems clear that the California law is targeting Trump for partisan reasons. Democrats have long sought to force the disclosure of his tax returns, and Democrats in the House of Representatives are suing the IRS to compel their release. Democrats in the New York Legislature are even trying to hand over Trump’s state income tax returns to the House (though a federal judge has temporarily blocked them).
California’s new law escalates the battle. But courts have long blocked overtly partisan manipulation, even if a law assumes the guise of neutrality. In 1936, the Supreme Court struck down a Louisiana tax on newspapers levied by the administration of then-Gov. Huey Long. The state’s major newspapers had been sharply critical of Long. Even if the tax looked neutral, the court ruled, it had “the plain purpose of penalizing the publishers and curtailing the circulation of a selected group of newspapers”
Newsom’s signing statement argued that the law would “shed light on conflicts of interest, self-dealing, or influence from domestic and foreign business interest.” But politics alone can induce such disclosures. Candidates who disclose their tax returns can score points against those who don’t. Presidential job-seekers have routinely released their taxes. Trump has declined to do so, to his continuing political detriment. The state should have no interest in whether California Republicans wish to choose him, despite that liability.
In 2017, Gov. Jerry Brown vetoed a similar bill. In his veto statement, he said: “Today we require tax returns, but what would be next?” If the Court allowed California’s law to stand, other states could demand a list of private information as the price for access to the ballot. States could require that candidates release their birth certificates; medical and mental health records; academic transcripts; criminal records; divorce and family status; and gun licenses, not just taxes.
States could demand even more private information. Have candidates had an abortion? What are their religious beliefs? States could focus these requirements to knock out particular candidates. Alabama could target Joe Biden by requiring disclosure of family business dealings with China.
To be sure, states have some power to manage access to the ballot. They generally decide the location of polling places, paper versus electronic ballots and the formatting of ballots. But in 1995, the Supreme Court made very clear that there are limits to state power. U.S. Term Limits vs. Thornton involved an Arkansas law that limited how many terms congressional representatives and senators could serve. The court held that states cannot add new “qualifications” to the constitutional minimums for office. California’s law clearly adds another qualification to running for president.
The court rested its conclusion on the principle that “to impose additional qualifications would violate that ‘fundamental principle of our representative democracy ... that the people should choose whom they please to govern them.’” In their quest to overturn the results of the 2016 election, and engineer those of 2020, California’s Democrats would deprive the voters of the right to think and choose for themselves.
John Yoo is a professor at UC Berkeley Law School, a visiting scholar at the American Enterprise Institute and a visiting fellow at the Hoover Institution. Robert Delahunty is a professor of law at the University of St Thomas School of Law. They both served in the Justice Department during the administration of George W. Bush.