Cal. Supreme Court Invalidates Law Requiring Primary Presidential Candidates to Disclose Income Tax Returns

Today's decision was based on the California Constitution.

|The Volokh Conspiracy |

Article II, section 5(c) of the California Constitution provides (emphasis added),

The Legislature shall provide for partisan elections for presidential candidates, and political party and party central committees, including an open presidential primary whereby the candidates on the ballot are those found by the Secretary of State to be recognized candidates throughout the nation or throughout California for the office of President of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of noncandidacy.

As the court's unanimous decision (in Peterson v. Padilla) put it,

Elections Code sections 6883 and 6884 purport to make the appearance of a "recognized" candidate for president on a primary ballot contingent on whether the candidate has made the disclosures specified by the Act. This additional requirement, however, is in conflict with the Constitution's specification of an inclusive open presidential primary ballot.

The Legislature may well be correct that a presidential candidate's income tax returns could provide California voters with important information. But article II, section 5(c) embeds in the state Constitution the principle that, ultimately, it is the voters who must decide whether the refusal of a "recognized candidate[] throughout the nation or throughout California for the office of President of the United States" to make such information available to the public will have consequences at the ballot box.

The court acknowledged that the "recognized candidates" requirement might require some definition of who is "recognized," and that perhaps perhaps "the Legislature might properly claim some role in defining when someone is" so recognized. But the requirement here, the court explained, had nothing do with providing any such definition:

[U]nder any reasonable interpretation of the "recognized" language within article II, section 5(c), a candidate's failure to disclose tax returns to the Secretary of State would not establish that the candidate is not "recognized … throughout the nation or throughout California" as a candidate "for the office of President of the United States."

The word "recognized" is susceptible to somewhat different meanings. (Compare, e.g., Black's Law Dict. (4th ed. 1968) p. 1436, col. 2 [defining "recognized" as "[a]ctual and publicly known"] with Random House Dict. of the English Language (1973) p. 1199, col. 3 [defining "recognize" as, among other things, "to acknowledge or treat as valid"].) The repeated use of the word "throughout" within article II, section 5(c) suggests that the "recognized" language is concerned (although perhaps not exclusively) with a candidacy's prominence or pervasiveness. (See Webster's 3d New Internat. Dict. (1971) p. 2385, col. 1 [defining "throughout" as "in … every part of"].) If this meaning applies, it seems plain that whether a candidate has disclosed tax returns to the Secretary of State cannot, by itself, be determinative of whether the candidate is "recognized." Such disclosure has, at most, a highly attenuated relationship to public awareness of a candidacy throughout the nation or California—or, for that matter, to whether someone is an "[a]ctual" candidate for the presidency. (Black's Law Dict., at p. 1436, col. 2.)

The disjunctive "throughout the nation or throughout California" language in article II, section 5(c) also suggests that nondisclosure of tax returns under the Act could not supply a basis for keeping a presidential candidate off the primary ballot even if the "recognized" phrasing were to be construed as being to some extent concerned with a candidacy's validity. For even in that case, a failure to comply with the Act's tax return disclosure requirement would establish only that someone is not "recognized," i.e., not regarded as valid, as a presidential candidate in or by California. It would not mean that the candidate is not "recognized … throughout the nation," because a failure to satisfy this requirement would not make a candidacy invalid throughout the nation.

The court had no occasion to determine whether the provision also violated the U.S. Constitution (see the federal district court decision in Griffin v. Padilla).

NEXT: New Jersey Takes a Swipe at the Gig Economy With New Independent Contractor Bill

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Yeah, this was always performative.

    Seems like it game some clerks a bit of amusement though.

    1. But I’m guessing some of the other states that have passed such laws don’t have this in their constitutions

    2. At least it would apply to all candidates, rather than used as a targeted attack against a particular one.

      Although that would seem to be the motive here, too. “It’s fair. We’re not trying to embarrass anyone — everybody must take their clothes off,” they exclaim, staring at one particular guy’s pot belly.

  2. No doubt they will ‘fix’ the state Constitution…

  3. Wouldn’t the federal constitution supersede the state constitution? The federal Constitution delegates directly to the various state legislators the power to specify how Presidential electors shall be chosen.

    By all means educate me.

    1. I think they try to use the “lowest-powered” rule they can. Since it was forbidden by the California constitution, they don’t have to reach the question of whether it is forbidden by the US Constitution.

      1. Is this “Lowest powered” rule an explicit canon jurists use?

    2. If I understand your argument, you’re saying that because the federal constitution gives a power to the state legislature, the state constitution’s constraints are void. Is that correct?

      I don’t think it can work that way. For one thing, the federal constitution does give the power to specify how the electors are chosen. It also lays out the criteria to be president. It does not, however, give the state the power to add any criteria to the federal list.

      The court in this case didn’t need to reach that issue, though. The doctrine of avoidance let them resolve it at a lower level (state constitution trumping ordinary legislation) without ever reaching the constitutional issues.

      1. I suspect he’s just asking why it’s decided on California Constitutional grounds instead of federal

      2. “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” [etc]

        This sounds like a delegation of power by the federal Constitution to the state legislatures. Whatever the state legislature “may direct” is how the electors are chosen.

        So the legislature could reserve the choice to itself, or delegate to the states the power to choose among a limited list of candidates. The legislatures enjoy this power by grant from the federal Constitution,and one could argue a state constitution can’t interfere with that grant of power.

        1. “delegate to the *voters* the power to choose” etc.

        2. This is a primary. This has nothing to do with electors. So even if your argument is correct it isn’t applicable here.

        3. So assume the California legislature passes a law saying that on Election Day 2020, the voters of the state are to choose between electors pledged to Bernie Sanders and electors pledged to Angela Davis. Wise or not, wouldn’t that be constitutional and supersede any mere state constitutional limits?

          1. As I stated above that isn’t applicable here. It is a primary, not a general election. So the clause about electors is irrelevant.

            As for your general point, there is still the fact that they can’t add requirements to be president. The requirements in the US Constitution is a full and complete set. So there is a few things that a court would have to determine. 1) is release of tax information more like getting signatures to be on the ballot (allowed, though ballot access cases haven’t had uniform results) or is it more like an additional requirement to be elected (not allowed) and 2) does number 1 matter electors are allowed to vote for whomever they want (including those who didn’t release tax information 3) even if number 2 in theory would make it OK is the method of choosing electors such that for all intents and purposes it will deprive someone of a chance and thus be no materially different from the situation in number 1.

            My guess is that most courts, regardless or political leanings, would say it is more like another requirement because it is about information rather showing enough support to make putting them on ballot worth it. Therefore, even if the elector’s clause can be read to say a state constitution can’t take power away from the legislature (which is seriously doubt given the ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission) the legislature would still have to show it is constitutional under the US Constitution which I don’t believe it is

            1. As I stated above that isn’t applicable here. It is a primary, not a general election. So the clause about electors is irrelevant.

              But the purpose of the primary is to choose electors. The legislature could constitutionally just choose the Sanders electors, right? Then why can’t it exclude disfavored electors at this or any other stage?

              As for your general point, there is still the fact that they can’t add requirements to be president.

              But if the legislature has the authority to choose the electors itself it certainly has the authority to do so based on whatever criteria it deems relevant, right? Then isn’t it the case that the candidates whose electors are not chosen have failed to meet the legislature’s requirements? Recall what the Supreme Court said in Bush v. Gore:

              The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U. S. Const., Art. II, § 1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the state legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. Id., at 28-33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (” ‘[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”’)

              1. “But the purpose of the primary is to choose electors.”

                That’s just wrong. The purpose of a primary is for a political PARTY to decide who their candidate for president will be. It’s very far removed from the selection of electors. It’s not even really a governmental function (or would have to be, if the parties weren’t in control of government and hadn’t conned the taxpayers into paying for their selection process).

                1. If the legislature has the constitutional authority to appoint the electors itself, using whatever criteria they deem appropriate (its power being “plenary”), then they could decide that the electors of those candidates who do not adhere to their political philosophy, or those candidates they find offensive, or those candidates who refuse to release their tax returns will not be selected and this would not violate the constitution, right? Is there some reason they couldn’t use this authority to simply narrow down the field, excluding candidates with the wrong political philosophy and then letting the voters choose from the remaining candidates? Wouldn’t that be the “Manner as the Legislature thereof may direct”? If this would be permissible then they could simply announce that candidate X will not be allowed on the ballot in the general election and any party choosing candidate X as its nominee will have no candidate on the ballot in the general election, Right?

          2. “Wise or not, wouldn’t that be constitutional and supersede any mere state constitutional limits?”

            I’d think that there’s a strong argument that an ultra-vires act by the legislators doesn’t count as an act of the legislature for purposes of the elections clause. If a state constitution denies certain powers to the legislature, and the members of the legislature purports to exercise those powers, they they’re not acting as the legislature, but as ordinary schmucks.

            1. With respect to the state legislature’s power to appoint electors, the Supreme Court said in Bush v. Gore that “it can neither be taken away nor abdicated.” But if you call this “an ultra-vires act by the legislators” then aren’t you saying that the legislature’s power to appoint electors has either been abdicated or taken away?

        4. The legislatures enjoy this power by grant from the federal Constitution,and one could argue a state constitution can’t interfere with that grant of power.

          I actually personally have always felt that argument is BS- that state legislatures are governed by state constitutions, the framers knew that, and wouldn’t have expected that state legislatures could ignore state constitutional requirements in exercising their powers under the Election Clause.

          But I will tell you that your position has been supported by the Supreme Court so it is, in fact, the law. See Bush v. Palm Beach County Elections Commission.

    3. The challengers only raised the state constitution question in this case. They didn’t challenge it under the federal constitution.

      1. As EV mentions, other cases filed in federal court address the federal issues.

    4. A federal court already invalidated the California law on US Constitutional grounds. The US Constitution lists the qualifications to be president, 35, and a natural born citizen. States are not allowed to add their own qualifications to be president, which of course has nothing to do with how the state selects electoral voters.

      1. States are not allowed to add their own qualifications to be president, which of course has nothing to do with how the state selects electoral voters.

        If the legislature decides to select the electors of candidate X, which they are constitutionally permitted to do, then aren’t they saying that the qualifications of candidate X are lacking in the other candidates? Why isn’t that adding their own qualifications?

      2. ” The US Constitution lists the qualifications to be president, 35, and a natural born citizen . . . ”
        Based on that, then it would be perfectly legal and constitutional to ask all presidential candidates to provide a birth certificate proving
        A) that they are at least 35 years old
        B) a natural born citizen
        I believe several states did this because of 0bama, and all those efforts were struck down by the courts.

  4. Would have been interesting though. California Democrats would have not changed the electoral vote count one iota, but would have lit the trump base on fire with the denial of the national vote count, which would surely have been deficient by having disenfranchised all California Republican voters.

    1. this was relating to the primary

      1. You can’t be forced to give it up for your final connection, but you do for the puddle jumper to get there.

        Doesn’t sound quite right.

  5. The last sentence of Eugene’s 2nd quote from the opinion seems wrong to me. It talks about a candidate’s being not recognized throughout the nation as if it meant the candidate is *(not recognized) throughout the nation*, when in this context it actually means the candidate is *not (recognized throughout the nation)*.
    I think I buy their overall conclusion for other reasons. That said, unless I’m missing something this seems like an odd mistake for the Calif SC to make.

    1. Oops, in my previous comment replace “their overall conclusions” with “the 1st sentence of that same quote”

  6. Tax returns for politicians are their business and no one else’s (just like for everyone else). If you don’t like them no releasing their taxes, you don’t have to vote for them.

  7. If voters are stupid enough to vote for someone who won’t give full disclosure, then I suppose they deserve to be governed by someone who has a conflict of interest. “In a democracy people get the kind of government they deserve.”

    1. Exactly, look at California. They deserve the crime, the taxes, the power outages, the fires, the poverty, the drugs, and the shit on the streets.

      1. Yes, the disabled woman who burned alive in her wheelchair in the Santa Rosa wildfire certainly deserved that fire, by golly!
        Jerk.

        1. People rail against RAK’s lack of civility, but he does not wish death upon those he disagrees with.

        2. I don’t know that we deserve it, but it’s certainly puzzling that we continue voting for policies that encourage it.

  8. Personally, I’ve never understood the fascination with Trump’s tax returns–particularly by those on the far left.

    The way the tell it,`Trump is an evil mastermind rapist who intentionally puts kids in cages, sells out the entire country for his own personal gain, is a secret Russian agent being blackmailed by Putin, and commits all sort of other racist/sexist evils and in some plan to become a dictator.

    But fibbing on his taxes?!?!?!?! My God, what kind of depraved heathen do you think he is?!?!?!

    1. Your forgot Trump is also a stupid, impulsive idiot that gets all of his opinions for Fox news.

      The reason for wanting his tax returns is “prove” he is a liar and cheat who is not as wealthy as he says he is, possible to start an investigation into his finances.

    2. If everyone else discloses his financial information, except for one guy, and that guy lies about the reason for not disclosing it, how can you not be suspcious?

      1. Is that grounds to compel him or her to disclose financial information to the standard of your choosing?

        That’s a slippery slope. Just vote for someone else.

Please to post comments