If California Gov. Gavin Newsom (D) gets his way, Donald Trump will have to release his taxes in order to appear on the state’s primary presidential ballot next year. In late July, Newsom signed a bill requiring that any presidential or gubernatorial candidate must release five years of tax returns to qualify for the state’s primary election ballots.
“These are extraordinary times and states have a legal and moral duty to do everything in their power to ensure leaders seeking the highest offices meet minimal standards,” Newsom wrote in his signing statement.
But aggressive legal suits are challenging the constitutionality of California’s new law, arguing that states shouldn’t be able to add new requirements about who can run for president willy-nilly.
The outcome doesn’t matter for Trump or the 2020 election, but it could have profound implications for future presidential elections. If California’s law withstands these legal challenges, what would stop a swing state held by one party in 2024, for example, from implementing a similar requirement designed to block a major party candidate from the ballot?
Trump and the National Republican Committee quickly filed federal lawsuits against the measure, saying the law is unconstitutional and infringes on the president’s free speech. The California Republican Party filed a lawsuit as well. The state Supreme Court has decided to hear both cases in a matter of weeks, which is a “very uncommon” move, according to Leslie Gielow Jacobs, a constitutional law professor at McGeorge School of Law in Sacramento, California, and probably means the justices are wary of the new push.
Lawyers for the state of California and the California Republican Party will deliver their briefs to the state Supreme Court in just two weeks.
‘Disclosure Is Part Of Our Political Tradition’
In the U.S. Constitution, there are three simple requirements that one must meet in order to serve as president: You must be over the age of 35, you must be a natural-born citizen and you must have at least 14 years of residency.
“The Constitution is clear on the qualifications for someone to serve as president and states cannot add additional requirements on their own,” Tim Murtaugh, a spokesperson for the Trump campaign, told The New York Times in July.
But as Jacobs pointed out, the “the framers wanted to give lots of power to the states. For any elections for federal office, the [U.S.] Constitution gives the states lots of power to control how the elections take place.”
She broke the argument down as a matter of qualifications versus rules. There are three solid, constitutionally protected qualifications to be president, but each state can make rules about how those elections are run.
“There are a lot of disclosure agreements that people who are running for office have to make,” Jacobs said. “In fact, there are a lot that people who hold office have to make. Disclosure requirements, as a condition to holding office, are pretty routine.” In California, for example, candidates have to disclose their donors, donations and campaign expenditures.
Other legal cases from the 1980s and 1990s have established how judges might respond to this one, said Chris Elmendorf, an election law professor at the University of California, Davis.
In 1983, the Supreme Court found that Ohio had placed an unconstitutional burden on independent candidates for holding them to an early filing deadline, and that a state can’t go too far in interfering with the national political process.
Then, the Supreme Court ruled in 1995 that setting congressional term limits was also unconstitutional for establishing new qualifications for federal office outside of what the Constitution had already established.
“A similar concern might arise here,” Elmendorf said. “California is trying to disable a locally unpopular candidate, and in some sense thereby interfering with a national political process.”
On the other hand, he added that “disclosure is part of our political tradition,” and that the law could be seen “as an effort to hold presidents at the same standards that legislators themselves comply with.”
But on the state level, the law might also be in violation of Proposition 4, a 1972 state constitutional amendment that requires the state legislature “to provide for open presidential primary” by listing all candidates “throughout the nation or California” and “such candidates whose names are placed on ballot by petition.” Proposition 4 was introduced as a response to previous election ballots that excluded candidates from across the U.S.
‘Today We Require Tax Returns, But What Would Be Next?’
Despite an impending visit to the Bay Area for a fundraising event on Sept. 17, without a significant primary challenger, Trump won’t need the California votes, and he wouldn’t lose much by not appearing on the state’s primary ballot in March.
Even if it’s just a symbolic law — and political theater for Newsom, who ran for governor promising to take the fight to the Trump administration ― a law like this could still have dangerous ramifications.
Even Newsom’s predecessor said the same. Former Gov. Jerry Brown vetoed a similar measure in 2017, saying he feared that it was not only unconstitutional, but that ― even more concerning ― a law like this could set a “‘slippery slope’ precedent.”
“Today we require tax returns, but what would be next?” Brown said at the time. “Five years of health records? A certified birth certificate? High school report cards? And will these requirements vary depending on which political party is in power?”
A qualified candidate’s ability to appear on the ballot is fundamental to our democratic system.
Former California Gov. Jerry Brown
Brown was hardly thinking in hypotheticals. In 2009, shortly after the election of former President Barack Obama, a Republican congressman from Florida tried to introduce a law requiring all presidential candidates to submit copies of their birth certificates to the Federal Elections Committee.
“A qualified candidate’s ability to appear on the ballot is fundamental to our democratic system,” Brown said in 2017. “For that reason, I hesitate to start down a road that well might lead to an ever escalating set of differing state requirements for presidential candidates.”
But it’s 2019. Political norms everywhere are weakening or disappearing, and for now, all bets are off.
“The conventions of what’s within and out of bounds are entirely up for grabs,” Elmendorf said. “So it’s not a surprise that you’re seeing this kind of tax disclosure law being enacted for the first time, because previously no president would violate that convention.”
“If you think of a sort of candidate or officeholder as intrinsically illegitimate, anything you can do is worth doing,” he said.
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