Earlier this month Sacramento-based federal district judge Morrison England issued a preliminary injunction blocking implementation of California’s recently enacted law that denies ballot access to presidential (and gubernatorial) candidates who have chosen not to release their tax returns. In a previous column I explained that while I am not sure “(as a predictive matter) about what the courts . . . will ultimately do with this matter, . . . I am quite convinced (as a normative matter) that the arguments of those who are . . . advocating for invalidation of California’s law are misplaced or at the very least overly simplistic.” After reading the district court’s ruling, I am even more convinced of that, and indeed I have come to believe there is a good chance a majority of the current Supreme Court would agree with me.
Judge England’s opinion found that plaintiffs were likely to succeed on the merits of their challenge to the California law on four grounds. First, relying on the Supreme Court’s opinion in U.S. Term Limits, Inc. v. Thornton, Judge England found that the California law likely impermissibly adds qualifications beyond what the Constitution already lists concerning the office of the President. Second, Judge England found the law likely violated President Trump supporters’ First Amendment rights of association. Third, and relatedly, he found the law likely violated Fourteenth Amendment equal protection rights to vote. And finally he found that California’s law was likely preempted by the federal Ethics in Government Act, which regulates presidential candidates in some ways but which stops short of requiring tax-return disclosure.
As I wrote previously, the fundamental problem with the plaintiffs’ challenge is that its arguments are based on cases and principles that derive from a setting—federal legislative contests—in which the Constitution requires that states hold elections by the people themselves. Article I of the Constitution mandates states to hold popular elections to select House members and now (since the Seventeenth Amendment) also for 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 to California’s law—Article II of the Constitution, which governs presidential selection, does not require states to hold popular elections with regard to the presidency at all. Indeed, as a majority of the Supreme Court in Bush v. Gore observed (uncontroversially affirming cases going back over a hundred years):
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.).
It is for this quite fundamental reason that cases like Thornton that involve state regulation of congressional elections (and First and Fourteenth Amendment cases concerning regulation of the right to vote in elections that are federally mandated) do not apply straightforwardly to the presidential selection context.
Judge England in a footnote did acknowledge that Thornton involved Congress and not the presidency, but the judge seized on a quote (from revered Justice Joseph Story’s influential Nineteenth-Century constitutional law treatise) in the Court’s opinion in Thornton to the effect that “states have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a president.” This quotation led Judge England to conclude there was no difference between Congressional and presidential selection processes for these purposes. But Judge England wrenched the quote out of context; in both Thornton and Story’s treatise, the observation was made simply to deflect the notion that states enjoyed power reserved under the Tenth Amendment to regulate the selection of federal officials. What Story and the Court were saying was merely that states enjoy no residual or “reserved” power to regulate federal selection methods because federal officials did not exist prior to the Constitution’s adoption. Indeed, at the end of the passage in Story’s treatise from which the quote comes, Story (rightly) observed that the key inquiry is this: “Before a state can assert [power over a federal selection process], it must show the constitution has delegated and recognized it.”
And when we compare Articles I and II, we see the Constitution delegated very different powers to states. In Article I, with regard to congressional contests, popular elections are required, and states are given the provisional power to regulate only the “Times, Places and Manner”—but not the substance—of these constitutionally required elections. Moreover, Congress is given power to override states even with regard to times, places and manner of the elections.
By contrast, in Article II, states are given the entire power/duty to appoint presidential electors in any way their legislatures choose. Again, popular elections are not required; states are given power over not just the manner of election, but the manner of selection. And Congress is denied any authority to second-guess whatever means states settle on as ways to pick their electors—Congress’s power is instead limited to prescribing the timeline for picking the electors. (The lack of broad congressional power over presidential selection—apparently never recognized by Judge England—explains why the federal Ethics in Government Act cannot be read to preempt state regulation of presidential selection decisions; although Congress might have power to supplement state regulatory efforts, it cannot occupy the field and displace what states do, because while Congress has ultimate regulatory authority in congressional elections, states have the exclusive authority with respect to presidential selection matters.)
In short, and crucially, for presidential elections Article II “delegates and recognizes” (in Story’s words) very broad power conferred to states that Article I does not for congressional selection.
Granted, once a state decides to have popular elections for picking presidential electors, the state may not discriminate on the basis of race, sex, class, or age, because of other constitutional provisions that kick in whenever elections are held. But California’s tax-return disclosure law does not implicate, let alone violate, any of these restrictions.
To be fair to Judge England, I should mention that the Supreme Court, in several cases in the 1970s and 1980s, seems to have departed from originalist understandings of state power over presidential selection processes. For example, in a 1983 Supreme Court case, Anderson v. Celebrezze, the Court struck 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 noted 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.” The result in Anderson itself may plausible because, as noted above, states are not given power—Congress is—over the timing of presidential elector selection (and because Anderson, unlike the present dispute, involves the timing rather than the substantive criteria of presidential selection), but there are other cases in the Anderson line that may be harder to square with the broad powers Article II confers on states.
So district court judges like Judge England are put in a difficult position where the methodology underlying Supreme Court case law is confused and sometimes conflicting. But it has been some time since the Court has invoked cases like Anderson to invalidate state regulation of presidential selection, and in the non-controversial part of Bush v. Gore excerpted above the Court examined and emphatically (albeit hurriedly) affirmed the broad reach of every state’s powers under Article II.
Most importantly, there are now five justices on the Court who likely embrace an originalist approach to construing Articles I and II, and under such an approach California’s law should survive.
As I have written before, I oppose laws like California’s because I think they unwisely pull states down some pretty slippery slopes. So I might agree with a recent LA Times editorial that, given that a ruling in the state’s favor from higher courts might not come in time to meaningfully implement California’s law in any event, the best course of action for California might be not to appeal and let the matter rest. But if and when the Supreme Court weighs in on questions like these, I think a majority very well could—and to my mind should—uphold broad state authority in this realm.