Re­quir­ing can­di­date tax re­turns is le­gal

The Fresno Bee (Sunday) - - Opinion - BY ERWIN CHEMERINSK­Y Erwin Chemerinsk­y is dean of the UC Berke­ley School of Law. He wrote this for the Los An­ge­les Times.

Gov. Gavin New­som last Tues­day took an im­por­tant step to pro­vid­ing Cal­i­for­nia vot­ers with crit­i­cal in­for­ma­tion to in­form their elec­tion choices. He did so by sign­ing SB 27, which re­quires all can­di­dates for pres­i­dent to pro­vide their in­come tax re­turns to the Cal­i­for­nia Sec­re­tary of State as a pre­con­di­tion for ap­pear­ing on the state’s pri­mary elec­tion bal­lot.

The new law is a le­git­i­mate ex­pres­sion of Cal­i­for­nia’s sov­er­eign au­thor­ity to reg­u­late who is listed on its bal­lot and en­sure that vot­ers are prop­erly in­formed.

In ap­prais­ing SB 27, there are two ques­tions: First, is it im­por­tant for vot­ers to have ac­cess to a pres­i­den­tial can­di­date’s tax re­turns? Sec­ond, is it con­sti­tu­tional for a state to re­quire this as a con­di­tion for be­ing listed on the bal­lot? The answer to both ques­tions is an em­phatic yes.

A can­di­date’s tax re­turns in­clude in­for­ma­tion about what a can­di­date owns, which can let vot­ers know of pos­si­ble con­flicts of in­ter­est and whether there are en­tan­gle­ments with for­eign busi­nesses and for­eign gov­ern­ments. They re­veal whether a can­di­date owes money and to whom.

Tax re­turns let vot­ers know how much a can­di­date has paid in taxes and what kind of tax loop­holes and shel­ters he or she has em­ployed. The re­turns also can be used to ver­ify

a can­di­date’s claim about wealth and in­come.

This is why, be­gin­ning with Richard Nixon in 1952, al­most all pres­i­den­tial and vice pres­i­den­tial can­di­dates have re­leased at least some of their tax re­turns. Since the 1970s, the prac­tice had be­come stan­dard for those seek­ing the pres­i­dency — un­til Don­ald Trump. In 2016, Hil­lary Clin­ton re­leased eight years of her tax records. Jeb Bush re­leased 33 years of re­turns.

As with any in­for­ma­tion, each voter can de­cide how much the tax in­for­ma­tion mat­ters when choos­ing among can­di­dates. But it is im­pos­si­ble to see an ar­gu­ment that it is in­her­ently ir­rel­e­vant or that vot­ers should not be able to have ac­cess to this in­for­ma­tion.

The ques­tion then be­comes whether the U.S. Con­sti­tu­tion al­lows a state to re­quire this kind of dis­clo­sure as a con­di­tion for be­ing listed on the bal­lot.

In many cases, the United States Supreme Court has ex­pressed def­er­ence to the states in de­cid­ing what qual­i­fi­ca­tions to im­pose as a con­di­tion for be­ing on the bal­lot. In Bul­lock vs. Carter (1972), the court said, “Far from rec­og­niz­ing can­di­dacy as a ‘fun­da­men­tal right,’” state gov­ern­ments have au­thor­ity to set con­di­tions that must be met for a can­di­date to be on a bal­lot. The court has put qual­i­fi­ca­tions on those con­di­tions, say­ing that bal­lot ac­cess rules are likely to be struck down if they dis­crim­i­nate against less af­flu­ent can­di­dates or im­pose re­stric­tions on new or small po­lit­i­cal par­ties. But re­quir­ing dis­clo­sure of tax re­turns does not run afoul of these con­di­tions.

Al­though most cases deal­ing with bal­lot ac­cess have in­volved state and lo­cal elec­tions, the con­sti­tu­tional prin­ci­ples are the same: State gov­ern­ments may set con­di­tions for be­ing listed on the bal­lot so long as they serve im­por­tant in­ter­ests and do not dis­crim­i­nate based on wealth or ide­ol­ogy.

Op­po­nents of SB 27 con­tend that it is in­con­sis­tent with the Supreme Court’s de­ci­sion in United States Term Lim­its vs. Thorn­ton (1995). In that case, Arkansas law pre­vented a can­di­date for Congress from be­ing listed on the bal­lot if he or she had al­ready served three terms in the United States House of Rep­re­sen­ta­tives or two terms in the United States Se­nate. The Supreme Court said that a state can­not im­pose qual­i­fi­ca­tions for be­ing in Congress other than those spec­i­fied in the Con­sti­tu­tion. But a crit­i­cal dif­fer­ence is that, in Thorn­ton, the state com­pletely barred a can­di­date from be­ing on the bal­lot if he or she had ex­ceeded the term lim­its spec­i­fied by Arkansas law. SB 27 al­lows can­di­dates to be on the bal­lot so long as they meet an ad­di­tional simple re­quire­ment that al­most all pres­i­den­tial can­di­dates al­ready do: dis­clos­ing tax re­turns.

Ob­vi­ously, this law was in­spired by Trump’s re­fusal to dis­close his tax re­turns. But the law is not just about him; it ap­plies to all who wish to be listed on the state’s pres­i­den­tial pri­mary bal­lots. In­deed, Trump’s be­hav­ior shows ex­actly why the law is needed.

Unlike other re­cent pres­i­den­tial can­di­dates, he has re­fused to dis­close his tax re­turns and has claimed that this is be­cause he is be­ing au­dited by the In­ter­nal Rev­enue Ser­vice. But that’s non­sense: Noth­ing about an au­dit pre­vents dis­clo­sure. Por­tions of the Trump tax re­turns have been ob­tained by in­ves­tiga­tive re­porters, and they have pro­vided im­por­tant in­for­ma­tion about how much money he re­ceived from his father (vastly more than he claimed) and how lit­tle he paid in taxes.

Long ago, James Madi­son wrote that “knowl­edge will for­ever gov­ern ig­no­rance. A peo­ple who mean to be their own gov­er­nors must arm them­selves with the power which knowl­edge gives.”

SB 27 will arm Cal­i­for­ni­ans with in­for­ma­tion to make them bet­ter in­formed vot­ers. Why would any­one ob­ject to that?


Pres­i­dent Don­ald Trump speaks with re­porters af­ter sign­ing a tax bill and res­o­lu­tion in the Oval Of­fice of the White House on Dec. 22, 2017. Cal­i­for­nia Gov. Gavin New­som signed a law July 30 re­quir­ing pres­i­den­tial can­di­dates to re­lease their tax re­turns if they want to ap­pear on the state’s pri­mary bal­lot, a move aimed squarely at Trump.

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