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California State Lawmakers Are Already Trying to Mess Up Trump’s Chances in 2020

Alas, their plan might not be constitutional. But it’s worth a try!

Donald Trump at the 2013 Conservative Political Action Conference.

 

While Donald Trump celebrates yesterday’s Electoral College victory over Cuban stogies and some nice Russian caviar, a couple of state lawmakers are trying to trip him up for the 2020 race—and hopefully prevent his reelection. Yesterday, state senators Scott Wiener and Mike McGuire announced plans to co-author legislation that would add a new condition for presidential and vice presidential candidates: release your tax returns or stay the hell off the California ballot. It's an audacious move that's likely to garner a lot of press for our boy Wiener, et al, but according to constitutional experts, also is not guaranteed to actually work. (Plus, Trump's already shown that he can win the nation without winning California, so what's the point?)

Releasing one's tax returns is an election tradition that dates back to Jimmy Carter, but it isn’t required by law. Wiener and McGuire's plan is to use California’s ballot as a cudgel to compel Trump, and all future Trumps, to release IRS reports or give up California's 55 Electoral College votes for good. It's modeled on a similar effort announced earlier this month by New York state senator Brad Hoylman, who—with all the subtlety of a Russian hacker or a James Comey memo—dubbed his proposal the Tax Returns Uniformly Made Public Act. Get it? The TRUMP Act. Very sneaky. 

Like the TRUMP Act, the California version would require presidential and vice-presidential candidates to release five years of tax returns in order to appear on the state ballot in future elections (though its working title, the Presidential Tax Return Disclosure Bill, does zero winking). If enough states with enough electoral power made this move, they could make it hard for a 2020 Trump/Pence ticket to win without complying. “One could see state ballot measures in 2018 saying that presidential candidates have to disclose their taxes and financial dealings,” says Wiener. “I'm gonna speculate that that polls well in a lot of states.” But does this plan pass legal muster? After Senator Hoylman announced the TRUMP Act effort in New York, a very gung-ho New York Times editorial board found a constitutional law scholar, Laurence Tribe of Harvard, to back the idea, or at least not rule it out. “Ballot access requirements vary significantly from state to state, and it seems that N.Y. might be able to simply add tax disclosure as a procedural ballot access requirement,” Tribe emailed the NYT

And yet: how a law like this would play out is about as clear as the stuff emanating from Trump’s spray-tan gun. According to Stanford Law School professor Pamela S. Karlan, the question of constitutionality would largely hinge on two issues:

• Whether a tax return disclosure law would unfairly burden the voting rights of people who support the candidate.

• Whether the Supreme Court would view the law as imposing new qualifications for the presidency, which only the Constitution can do.  

There are Supreme Court precedents that touch on relevant issues, but they’re not clear-cut enough to use as predictions for how a tax return disclosure law would fare. On the first point—the voting rights of supporters—Karlan points to Anderson v. Celebrezze, a 1983 Supreme Court ruling that threw out an Ohio statute that imposed an early deadline on independent presidential candidates filing to appear on the general election ballot. The Supreme Court concluded that Ohio’s law violated the voting and associational rights of the supporters of independent candidates, and they reversed a lower court ruling that had found in favor of Ohio. A precedent like this makes keeping a TRUMP Act–style law on the books “more complicated,” says Karlan.

Now onto the second point: qualifications for president. The Constitution sets the requirements a president must meet—namely, being a natural-born citizen of at least 35 who has lived in the U.S. for 14 years. States don’t have the power to add to them. If the Supreme Court were to decide that California's law adds to the established qualifications for the presidency, “it would be unconstitutional,” says Karlan. But she declines to speculate on the fly about whether the court would call a law like this unconstitutional. “It’s very complicated,” she says again.

Here’s one reason why: In 1992, Arkansas voters passed an amendment to the state constitution that imposed term limits on U.S. representatives and senators from Arkansas. The amendment worked by barring legislators who had already served a certain number of terms from appearing on the ballot. In 1995, the Supreme Court declared the amendment unconstitutional in U.S. Term Limits, Inc. v. Thornton. In the majority opinion, Justice John Paul Stevens wrote, “[W]e hold that a state amendment is unconstitutional when it has the likely effect of handicapping a class of candidates and has the sole purpose of creating additional qualifications indirectly.” 

That decision makes it clear that states can’t add qualifications for congresspeople, explains Stanford law professor Nathaniel Persily. “But for presidents it’s”—that word again!—“more complicated.” Persily himself likes the state senators' idea, by the way. “That’s something I’ve thought of proposing myself,” he says with a laugh. But even he isn’t sure it would work. The Electoral College, for instance, means that the law could play out differently for presidential qualifications than it has for congressional ones. 

Karlan agrees. “Technically, the president isn’t on the ballot,” she says. “What you’re voting for is the electors, who then cast the state electoral votes for the candidate to whom they’re pledged… It makes it more complicated.”

None of these red flags worry Wiener. “It’s not uncommon to have disagreements about whether something is legal under the Constitution. That happens all the time,” says the state senator, himself a graduate of Harvard Law. “If we were to limit ourselves to laws where we were 100 percent sure that a court will find them constitutional, then we would never be making change.”

And yet: Considering that Trump has no chance of winning California in 2020, why throw resources at this issue? Is it worth the all-but-certain years-long court battle? “Absolutely,” Wiener answers, pointing to the importance of financial transparency for any future president. “This is a real issue. We have a president who will be making foreign policy decisions where he may be entangled financially with foreign countries—it’s outrageous that we don’t even know. We must never allow that to happen again.” 

 

Update, 12 p.m.: An earlier version of this story mistakenly identified Senators Wiener and McGuire's proposal as the TRUMP Act, which is the name of a similar proposal in New York. The California senators' bill has a working title of the Presidential Tax Return Disclosure Bill. The story has been updated. We regret the error.
 

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