Suppose it’s the year 2011 and Texas passes a law no presidential candidate can appear on the ballot unless the candidate releases their college records to the public. You might recall that President Obama refused to release his records from Columbia University. What do you think would have happened if Texas had passed such a law? The Obama campaign would have screamed the law was unconstitutional, Republicans in Texas would have countered that the law promoted transparency, and the Supreme Court would have ruled in Obama’s favor, if my analysis is correct.
California recently enacted a law requiring presidential and gubernatorial candidates to release five years of tax returns before being allowed to appear on a primary ballot. President Trump and the RNC sued California earlier this month to block the law.
It seems pretty cut and dried to me - Article II, Section 1 of the U.S. Constitution lays out the qualifications for President. It talks about the President having to be a natural born citizen and at least 35 years old. California - or any other state, for that matter - cannot add extra qualifications like releasing tax returns before someone can be President. That is, indeed, one of the arguments made in the lawsuits. The Supreme Court ruled in 1995 that states could not add term limits to the qualifications for members of Congress. Moreover, the Supreme Court has not looked with favor on states trying to add restrictions in a nation-wide electoral process.
The lawsuits go on to argue that the California law violates the First Amendment for targeting President Trump for his political views, violates the 14th Amendment, and is preempted by the federal statute requiring candidates to file financial disclosure forms.
So are the law professors and others who support California’s law completely crazy? Well, maybe not completely. They argue, first, that states can impose some requirements, like a signature-gathering process for independent candidates in federal elections. But when Ohio tried to impose an early filing deadline on independent candidate John Anderson in 1980, it got shot down. Next, it is argued that California’s law merely gives voters information they care about and applies equally to all candidates. Third, some say California’s law only affects party primaries, not the national election. But the Supreme Court extended constitutional protections to primaries in 1941 [United States v. Classic]. Finally - and this is really exotic - it’s been argued that Presidents are not elected by popular vote and states have wide discretion to set requirements for who may serve as electors in the Electoral College. Therefore, it is argued, there is nothing wrong with requiring that electors only pledge support to candidates who have released their tax returns.
All of this is too clever by half. It’s dangerous to make predictions, especially about the future, but I’ll go out on a limb and predict the judicial branch will ultimately find California’s law adds extra qualifications to the office of President and is, therefore, unconstitutional. The stakes are high because same law has been proposed in at least 25 states. If California’s law is upheld, Trump could be off the 2020 ballot in half the country. Stay tuned on this one.