First, some context: in 2012 Arizona Secretary of State Ken Bennett made Barack Obama’s birth certificate a potential ballot issue in Arizona. In an interview with an Arizona conservative radio host, Bennett said it would be “possible” that he keeps President Obama off the Arizona ballot in November unless he receives “confirmation” from the state of Hawaii that Obama was born there. Hawaii’s response: Show us “confirmation” that you actually need to update your records and this isn’t a political ploy.
Bennett insisted in the radio interview that he was not a “birther,” the term that has become synonymous with the conspiracy theorists purporting that Obama was not born in the United States. He had heard from more than 1,200 voters in emails asking him to look into the issue, despite the fact that Obama released his longform birth certificate in April 2011.Bennett eventually received the required information and said that the issue was resolved.
Republicans in the Arizona legislature were the first to actually pass a “birther bill” in 2011 that tried to require candidates at all levels to provide proof they were born in the U.S. It was eventually vetoed by governor Jan Brewer.
(h/t Business Insider)
Now fast forward to the 2020 election. Lawmakers in at least 25 states have introduced bills that would require presidential candidates to release their tax returns to appear on the 2020 ballot in that state — a clear swipe at President Trump, the only modern president who’s refused to release his personal tax returns. (h/t Axios).
Today, California Governor Gavin Newsom signed a bill passed on a strict party-line vote in the California legislature that makes California the first state to require all presidential candidates to submit five years of income tax returns to qualify for the primary ballot.
The LA Times reports, Trump’s tax returns required under new California election law:
President Trump will be ineligible for California’s primary ballot next year unless he discloses his tax returns under a state law that immediately took effect Tuesday, an unprecedented mandate that is almost certain to spark a high-profile court fight and might encourage other states to adopt their own unconventional rules for presidential candidates.
[Candidates must submit their tax returns] by late November in order to secure a spot on California’s presidential primary ballot in March. State elections officials will post the financial documents online, although certain private information must first be redacted.
“As one of the largest economies in the world and home to one in nine Americans eligible to vote, California has a special responsibility to require this information of presidential and gubernatorial candidates,” Newsom said in a statement that accompanied his signature on the bill approved by the Legislature earlier this month. “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, and to restore public confidence. The disclosure required by this bill will shed light on conflicts of interest, self-dealing, or influence from domestic and foreign business interest.”
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Although it would keep a candidate off the March primary ballot, the new law does not appear to keep a candidate who refuses to disclose the information from appearing on the statewide ballot in the November 2020 election. Another facet of the law is that it requires candidates for California governor to release their tax returns in advance of the statewide primary, beginning in 2024.
Before you get all excited, it is may not be constitutional for a state to require presidential candidates to release their tax returns in order to get ballot access. The U.S. Supreme Court has previously ruled that neither states nor the federal government can create additional qualifications for congressional representatives or senators beyond what is required in the Constitution, and legal experts believe this extends to presidential qualifications as well:
US Constitution, Article II, Section 1
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.
Newsom’s signature on SB 27 sets the stage for a nationally watched legal debate over a state’s power to decide which names appear on its presidential ballot.
“I’m sure it’ll be challenged, but I have no confidence in predicting what the courts are going to do,” said Richard L. Hasen, a UC Irvine election law professor.
One likely courtroom argument was provided by California’s last governor. Jerry Brown vetoed a similar bill in 2017, arguing it was unlikely to pass constitutional muster and would set a bad precedent.
“Today we require tax returns, but what would be next?” Brown wrote in his veto message. “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?”
Hasen said a key question for determining whether the new California law is constitutional is whether courts look back to prior fights over ballot qualifications for congressional candidates or instead view the issue through the broad powers given to state legislatures when it comes to casting votes for president.
McGuire said he consulted a number of constitutional law attorneys in drafting the language of SB 27. He said it should be viewed the same way as other state requirements such as filing fees or voter signatures needed on nomination papers.
“States have the ability to impose ballot access requirements onto the primary ballot,” he said during a floor debate on July 11.
California lawmakers have not been alone in their effort to force presidential candidates to hand over their tax forms. Legislatures in 18 states have considered the issue in recent years, according to a recent tally by the National Conference of State Legislatures. Most — but not all — have been in states dominated by Democrats. Few observers, though, expect any of the efforts to lead the president to change his position.
Should California’s law remain on the books, it would force Trump to choose: Reverse course on his steadfast refusal to provide tax information or risk that California’s 172 delegates to next year’s Republican National Convention could go to a long-shot GOP challenger. The new California law does not, however, apply the same rules to a write-in candidate — a possible backup plan for Trump should he be forced to choose.
Nor will the law let Democrats off the hook. While the party has a bumper crop of hopefuls seeking to challenge Trump in November 2020, only a few of the top-tier candidates have released their own tax returns. The California statute would force that disclosure early in the campaign cycle, given the state’s decision to move its primary to March. That could mean any unusual tax deductions might play a role in how voters in the first states to select candidates — Iowa, New Hampshire and South Carolina — weigh the merits of the Democratic hopefuls.
Hasen said the debate that will result from California enacting the law is likely to spread to other statehouses around the country.
“If you think of this purely as a political matter and not a legal matter, what could a Republican legislature in a swing state do to hurt a Democratic presidential candidate’s chance to get on the ballot?” he said. “That’s really the Pandora’s box.”
Just as Governor Jerry Brown warned in his veto message.