We may not see Trump’s taxes yet
Courts could say ‘not so fast’ to ballot law
California’s new law requiring presidential primary candidates to release five years of tax returns might not survive long enough to keep President Trump off the state’s ballot in March.
That’s because the Supreme Court said states can’t “add qualifications” for federal candidates when it ruled in 1995 that Arkansas and 22 other states, including California, couldn’t set term limits for members of Congress.
On the other hand, the court has also said states can regulate access to the ballot for federal elections by requiring filing fees or other actions that are within a candidate’s power. And two weeks ago, the Ninth U.S. Circuit Court of Appeals in San Francisco rejected a wouldbe independent presidential candidate’s challenge to California’s signaturegathering requirement and said the state could pass laws aimed at making the ballot more understandable to voters.
In short, past cases pull in both directions on the validity of SB27, which requires candidates to disclose their tax returns in order to be included in the March 2020 primary. Legal scholars are divided, and the dispute has already landed in federal court, in a suit filed in San Diego hours after Gov. Gavin Newsom signed the bill into law on Tuesday.
The suit, claiming violations
of both the Constitution and the confidentiality of tax returns, comes from Rocky De La Fuente, the unsuccessful candidate in the recent Ninth Circuit case who now plans to enter next year’s Republican primary. Trump is likely to file his own suit, as his personal lawyer, Jay Sekulow, indicated when he told Politico that “California’s attempt to circumvent the Constitution will be answered in court.”
The judge who drew De La Fuente’s suit, Jeffrey Miller, has his own history with Trump. He successfully mediated a $25 million settlement in 2016 of fraud suits by students at the former Trump University, who said the future president falsely promised expert instruction in real estate investing. Miller was appointed to the federal bench by President Bill Clinton in 1997 after 10 years on the San Diego Superior Court, where he was appointed by Republican Gov. George Deukmejian.
De La Fuente’s suit asserts that the only qualifications for presidential candidates are those specified in the Constitution: The candidate must be a naturalborn U.S. citizen, at least 35 years old and with at least 14 years of U.S. residency.
Nothing in the Constitution “provides any authority to the states to impose additional requirements,” De La Fuente’s lawyer argues. Disclosure of a candidate’s tax returns, the suit says, is “untethered to any legitimate state interest related to California’s regulation of the ballot and procedures to guarantee an orderly election process.”
The principal case supporting that argument is the Supreme Court’s 1995 decision barring stateimposed term limits for members of Congress. In a 54 ruling, Justice John Paul Stevens noted that the Constitution allows states to regulate the “times, places and manner of holding elections.” But he said the document’s authors were concerned about abuse of power by the states — which had various restrictions on ballot access, including religious requirements — and thus took steps to “minimize the possibility of state interference with federal elections.”
In a separate opinion in the case, Justice Anthony Kennedy said the nation’s “political identity” includes the principle that “the national government is, and must be, controlled by the people without collateral interference with the states.”
The court drew a similar conclusion in a 1983 ruling that struck down Ohio’s early filing deadline for independent presidential candidates. The deadline, suspended by lower courts, would have barred John Anderson, a former Republican congressman from Illinois turned independent, from the state’s 1980 ballot because it had passed before he declared his candidacy.
Stevens, writing for another 54 majority, said the state timetable not only deprived some independent Ohio voters of a voice in the election, but also “places a significant stateimposed restriction on a nationwide electoral process.”
In view of the past rulings, there is a “serious argument” that the new California law is unconstitutionally “adding to qualifications of candidates who appear on the ballot,” said Richard Hasen, a UC Irvine law professor and election law specialist. He said the politics behind the law “might make courts more reluctant to allow something like this.”
Another prominent academic, Harvard Law Professor Lawrence Lessig, said in an online posting that the California law exceeded a state’s constitutional authority “to make sure the election functions in a reasonable and effective way.”
But UC Berkeley Law School Dean Erwin Chemerinsky said the law was the type of nondiscriminatory measure that the courts have upheld. Unlike congressional termlimits laws, Chemerinsky said in a statement quoted by Newsom when he signed the new law, SB27 “does not keep any candidate from being on the ballot as long as he or she complies with a simple requirement that is meant to provide California voters crucial information.”
Along those lines, the appeals court that ruled against De La Fuente on July 19 said the Constitution allows states to impose requirements like signaturegathering that are “politically neutral and aimed at protecting the reliability and integrity of the election process,” as long as they do not “significantly impair ballot access.”
“I think it’s a really close call,” said Jessica Levinson, who teaches election law at Loyola Law School in Los Angeles. On the one hand, she said, the law applies equally to all candidates, compliance is voluntary and states have constitutional authority to regulate elections. On the other hand, she said, conservatives, including the Supreme Court’s current majority, “could also say, ‘This is clearly about targeting President Trump.’ ”
And perhaps the most conservative member of that majority is Clarence Thomas, who also wrote the dissenting opinion in 1995 arguing that states could limit congressional terms.
“Nothing in the Constitution deprives the people of each state of the power to prescribe eligibility requirements for candidates who seek to represent them in Congress,” Thomas wrote. Whether he holds the same view about disclosing tax returns could determine the fate of California’s new law.