Lessig
Lessig
Jul 31 · 5 min read

I’m a bit surprised to have to come to this space to explain what seems to me to be an easy question of constitutional law, and even more surprised that people whose opinion I highly respect — Larry Tribe, Erwin Chemerinsky, David Boies, Theodore Boutrous— believe this an easy question going the other way. But having reflected on the substantive argument I’ve seen, I remain convinced of my original instincts. What follows is a brief explanation of why.

First, to be clear: I obviously believe Trump should release his tax return — as he promised, and as everyone else has and will.

Second: I obviously believe that the law that requires the IRS to release tax returns to Congress, if asked, is constitutional.

Third: I obviously believe that a law that required candidates for office to disclose sources of income is constitutional — just as laws that require candidates to disclose donors are constitutional. The public can create a right to know; candidates can be obligated to comply with that right.

The only question raised by California’s law is whether California can condition a candidate for President’s access to a primary ballot upon producing a tax return. The answer to that still seems to me to be clearly no:

Some (at least in the twittersphere) are convinced to the contrary because they believe primaries are “private” or somehow different from general elections. But where — as in California—there’s no effective way to be on the general election ballot without passing through the primary, that distinction has been erased by United States v. Classic (1941).

Some are convinced to the contrary because they believe this is a generally applicable law, applied to all candidates and all parties. It is that, of course, but the cases this authority is drawn from are all cases about the state’s ability to run an election. And while the jurisprudence here is not crystal clear, the nub of this authority is that states can impose requirements designed to make sure the election functions in a reasonable and effective way. So, Storer v. Brown (1974) upheld a “sore loser” statute (restricting an independent run to a candidate who had been in a party within a year of the run); Burdick v. Takushi (1992) upheld a ban on write-in votes; Munro v. Socialist Workers Party (1985) upheld a requirement that candidates receive at least 1% in its blanket primary. Whatever else the tax return requirement is, it is not this.

Some are convinced because they believe the state has a legitimate interest in assuring the integrity of the process, or transparency about the candidates. But again, no one doubts that there is such an interest. The only question is whether that interest can be pursued by conditioning access to the ballot.

I believe the law is pretty clear that that legitimate interest cannot be pursued through conditioning access to the ballot. And the authority for that conclusion is U.S. Term Limits v. Thornton (1995) and Powell v. McCormack (1968).

In Thornton, Arkansas had conditioned access to the ballot upon not having served more than a set number of terms. The Court struck that requirement down, because the constitution itself does not make serving less than a set number of terms a qualification for office.

In Powell, the Court held that Adam Clayton Powell could not be denied his seat in Congress, even though he had been held by Congress to have violated anti-corruption rules. Again, the reason was because “not violating the law” is not a qualification for office.

Those cases point—in my view—pretty clearly here. Clearly, California couldn’t say it won’t grant access to the general election ballot to any candidate who doesn’t release his tax returns. And given Classic, the same rule would apply to the primary. The qualifications in the constitution are both the floor and the ceiling. No state has the power to add to those, however good the reason. (Larry Tribe distinguishes these cases by arguing that these imposed “ex-ante” restrictions, but the ballot access requirement doesn’t. I don’t see the distinction: Thornton was about who could be on the ballot.)

If you’re still convinced to the contrary, then tell me this: How far does this “principle” apply? Can California deny ballot access to people who:

  • don’t affirm they’ve not been a member of the Communist Party?
  • don’t reveal how many times they’ve been to California?
  • don’t declare their view about abortion? Or same-sex marriage?

Ok, but what about a birth certificate? Could California require the production of a birth certificate?

Of course it could — because being a “natural born” citizen is a qualification for being President, as well as being at least 35 years old. That requirement doesn’t add anything to the qualifications in the Constitution. That requirement would simply make them real.

One more point suggested by my colleague, Daniel Hemel: The Supreme Court has weighed in pretty directly on the state’s interest in selecting delegates to a national convention (which is what a primary is). In Cousins v. Wigoda, the Court reviewed a state court order trying to affect which set of delegates would be seated. The court vacated the order, and along the way articulated some pretty clear principles that should apply in this case as well. Illinois had argued that the state “had a compelling interest in protecting the integrity of its electoral processes and the right of its citizens under the State and Federal Constitutions to effective suffrage.” But as the Court wrote in response,

Consideration of the special function of delegates to such a Convention militates persuasively against the conclusion that the asserted interest constitutes a compelling state interest. …

The States themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates. If the qualifications and eligibility of delegates to National Political Party Conventions were left to state law each of the fifty states could establish the qualifications of its delegates to the various party conventions without regard to party policy, an obviously intolerable result. Such a regime could seriously undercut or indeed destroy the effectiveness of the National Party Convention as a concerted enterprise engaged in the vital process of choosing Presidential and Vice-Presidential candidates — a process which usually involves coalitions cutting across state lines. …

The Convention serves the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State. . . . Thus, Illinois’ interest in protecting the integrity of its electoral process cannot be deemed compelling in the context of the selection of delegates to the National Party Convention.

As Dan wrote to me,

By voting for “Trump” on the 2020 ballot, California Republicans really are voting for convention delegates who are pledged to Trump. Whatever interest California has in preserving the integrity of elections by requiring the disclosure of candidate tax information, that interest is at its weakest in the context of a primary election to select delegates to a national party convention.

(Thanks, Dan.)

Lessig

Written by

Lessig

law professor, activist.

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