Republican Party leaders and President Trump’s legal team have gone to court to block implementation of California’s newly enacted law that denies ballot access to presidential candidates who have chosen not to release their tax returns. Many commentators expected such litigation, and some—such as Berkeley Law Professor John Yoo and St. Thomas Law School Professor Thomas Delahunty in a recent LA Times piece—have asserted that such challenges will, and should, prevail.
I make no claim (as a predictive matter) about what the courts (including the Supreme Court) will ultimately do with this matter, but I am quite convinced (as a normative matter) that the arguments of those who are predicting and advocating for invalidation of California’s law are misplaced or at the very least overly simplistic.
At the outset, let me make clear I do not think enactment of laws like California’s is a good idea. When I wrote about this topic almost three years ago soon after legislative proposals along these lines were first proposed, I noted that if states pursue presidential ballot access requirements in different ways, the concept of a true national election for President (something I support) moves farther away from, rather than closer to, reality. But whether opening, as Professors Yoo and Delahunty put it, “a Pandora’s box of state electoral meddling” violates the Constitution is a far different matter. The reason—and the deep historical and structural flaw in facile arguments about the unconstitutionality of California’s law—is that the Constitution doesn’t provide for (even though it also doesn’t foreclose, assuming a sufficient number of states agree) a national presidential election free from state-level selfish manipulation. So, for example, when a state decides to move from a winner-take-all allocation for its electors to a district-by-district approach (or vice versa) because of electoral-college-outcome consequences, that may be bad business, but it isn’t necessarily bad (i.e., unconstitutional) law.
Challengers to California’s law make a few big legal arguments. First is that laws like California’s violate First Amendment freedoms to form and operate political parties. According to Professors Yoo and Delahunty, “allowing California to restrict who can appear on primary ballots interferes with the right of the parties to choose their leaders.” Second, challengers invoke U.S. Term Limits, Inc. v. Thornton, a 1995 case in which the U.S. Supreme Court struck down an Arkansas law that prevented congressional candidates who had already served a certain number of terms in Congress from appearing on congressional election ballots in the state. The Court reasoned that states had no authority to impose additional requirements beyond those mentioned in the Constitution for the office of U.S. representative or senator and that preventing the names of long-serving federal legislators from appearing on the ballot amounted to an additional requirement for congressional officeholding. The same kind of argument, detractors say, applies to California’s tax-return-disclosure law; it reflects an impermissible attempt by a state to add qualifications, beyond those mentioned in the Constitution, to the office of President.
One narrow distinction of Thornton might also be that there was no way for someone who had served in Congress to undo that past service so as to qualify for the Arkansas ballot, whereas any candidate who wants to can comply with California’s tax-return-disclosure requirement.
But the problem with both of the challengers’ arguments is much more fundamental, namely, that these arguments derive from a setting—legislative contests—in which the Constitution requires that states hold elections by the people themselves, for example, to select House members and (now, since the Seventeenth Amendment) United States Senators. When popular elections are constitutionally mandated, the requirements state legislatures can impose for ballot access are necessarily constrained. A constitutionally prescribed election “by the people” presupposes that the people—and not the state legislatures—do the choosing. But—and here is the key consideration that must be but is not factored in by challengers—the Constitution does not require states to hold popular elections with regard to the presidency at all. As a majority of the Supreme Court in Bush v. Gore (in a part of the opinion that did not generate huge legal criticism or controversy) observed:
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 [even today], 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. . . . 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”) (quoting S. Rep. No. 395, 43d Cong.,1st Sess.).
A 1983 Supreme Court case, Anderson v. Celebrezze, did strike down an Ohio law that required any non-major-party candidate for president to file a statement of candidacy and nominating petition with state election officials by March 20 in order to be eligible for inclusion on the November ballot. And in so doing the Court did observe that “in the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. [Because] the President . . . represent[s] all the voters in the Nation[,] . . . a State’s enforcement of more stringent ballot access requirements, including filing deadlines, has an impact beyond its own borders.” But this was 17 years before the Court, in the non-controversial part of Bush v. Gore excerpted above, examined and affirmed the broad reach of every state’s powers under Article II.
It is for this reason—the wide discretion states have to pick presidential electors by means other than popular elections—that cases like Thornton are not on point; the people under Article I of the Constitution have a right to pick members of Congress, so states cannot deprive the people of a fair choice by means of ballot-access requirements that are too onerous. The people have no such right under Article II to pick the electors who represent their state in the electoral college (much less any right to pick the actual President).
In the same way, arguments grounded in the First Amendment about the right of political parties to pick their leaders miss the point; political parties—like individual citizens—have no First Amendment rights to weigh in on presidential elector selection until state law chooses to involve them. In presidential selection (unlike congressional contests), the Constitution confers no rights directly on people or their political organizations. Put another way, there is a First Amendment right to speak and associate and to organize, but there is no First Amendment right of individual candidates or their backers to obtain presidential office. In a similar vein, the federal government can select the federal judiciary (another office where the Constitution does not make use of elections but instead empowers government officials to do the picking) by means of a process that discriminates against would-be jurists based on their viewpoints, even though in other settings the First Amendment prohibits viewpoint-based punishment. Presidents and senators reject judicial candidates on account of the candidates’ expressed views all the time without creating any First Amendment problem because denying an individual or her backers access to high judicial office where the Constitution gives decisionmaking power to government entities rather than the people directly is not punishment in the ordinary First Amendment sense. And neither is denying an individual or group ballot access in a presidential selection process in which elections are not required. (In this vein, note that primary elections are not private affairs by the political parties; they are government-sponsored means of winnowing the field with an eye towards ultimate selection in November of presidential electors who are chosen in whatever manner a state sees fit.)
So imagine California law enacted some better-worded version of the following:
The legislature of California will follow the practice, common in the nineteenth century, of legislative selection of the electors that represent the State every four years in the so-called electoral college. But the California legislature has a legal duty, in picking electors, to follow the wishes of the people of the State, as measured by a ballot on which citizens eligible to vote in congressional elections can in November of presidential election years register their preferences among persons eligible to hold the Office of President; provided, however, that neither presidential primary ballots nor the presidential November ballots in California shall include the names of (or permit write-in expressions of preference for) any presidential candidates who have failed to publicly disclose their tax returns by XX date; and only electors who are pledged to support presidential candidates who have publicly disclosed their tax returns by XX date are eligible to be considered for selection by the legislature.
It is hard for me to see how this law, under the text and original understandings of broad state power created by Article II, would be unconstitutional, even if I personally might think it is bad policy. To be sure, there is the separate question of whether presidential electors, once chosen, can be coerced into voting for or against particular presidential candidates (and on that topic readers can look at this prior column). But in the selection of the electors themselves, the choices of the citizens who are being asked to weigh in can be constrained, for the very reason that the citizens’ views did not have to be, as a constitutional matter, consulted in the first place. If the hypothetical law above would pass muster, it is hard to understand why much would be gained by invalidating California’s actual law and requiring it to take the form I lay out above.
To be sure, some might argue that California’s actual tax-return-disclosure law is different from my hypothetical because California styles the primary and November events as “elections” rather than preference polls, and (relatedly) because California law tells primary voters they are being given the power to pick candidates to appear on the November ballot and tells November voters they are given the power to select presidential electors. The Court in Bush v. Gore did observe that once a state confers power on voters and calls something an election, then the state may be bound by requirements that did not theretofore apply. As the Court held (in a part of the opinion that was controversial in its application):
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. . . . Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.
But even if the Constitution is concerned, once people have been given the power to weigh in or select officeholders, with intrastate equality (ostensibly the basis, and a hotly contested one at that, for the ultimate holding in Bush v. Gore), tax-return-disclosure laws like California’s do not implicate any problem of intrastate disparate treatment. All persons—all candidates and their supporters—within a state are treated equally. They all confront the same requirement of tax-return disclosure. (And if the concern is that California’s law is neutral on its face but motivated by a desire to disadvantage one particular political party, we should recognize, even assuming that partisan motive were constitutionally problematic, that the Supreme Court has been exceedingly reluctant to invalidate facially neutral laws on the ground of invidious motive, as illustrated by the recent travel ban, census, and partisan gerrymandering cases. Also, as far as intent is concerned, it is quite relevant that California’s law requires tax-return disclosure not just for presidential candidates, but for gubernatorial candidates as well, including California’s current governor—should he run for reelection—a wealthy Democrat with complicated and perhaps controversial business interests.)
The real complaint against a law like California’s is not that it creates intrastate disuniformity, but rather that it increases interstate disuniformity. Yet that disuniformity is built into Article II’s delegation of power to each state and the resulting electoral college framework itself. States have different procedural and substantive requirements for the selection of presidential electors as a general matter, and while many people (myself included) would prefer it otherwise (and are working on permissible state-level reform efforts to move in the direction of a uniform national election), such diversity among the states, even if largely the product of states attempting to influence the national outcome for political reasons, is in perfect keeping with the Constitution’s requirements.
Now there may be some additional constraints that apply once a state chooses to have an “election” (or even a preference poll) that involves citizens directly. Perhaps the state should not be allowed to mislead its citizens by purporting to confer decisionmaking power when in fact the people’s role is advisory only. So clarity about the extent of, and limitation on, the voters’ power might be required. And there are other constitutional rights provisions besides the First Amendment—namely, the 15th, 19th, 24th and 26th—that may stand for the proposition that people’s ability to register their preferences on political matters should not turn on race, gender, socio-economic status or age. But a state’s requirement that a presidential candidate disclose certain information (or, say, agree to participate in state-sponsored debates)—in order for the slate of electors pledged to support that candidate to be considered for selection by the state—does not violate any of these norms, nor does it (for the reasons discussed above) constitute compelled speech or impermissible additional qualifications for the office of President.