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Legislation has been introduced in California that would require candidates to make their tax returns public in order to appear on the ballot. The proposal is obviously aimed at forcing President Trump to make his returns public. Would such a law, if passed, be constitutional? The short answer is no, it would not.
Article 2, Section 1, Clause 5 of the Constitution spells out the qualifications for president: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”
This mirrors the language of Art 1, Section 2 and 3, which set forth the qualifications for members of the House and Senate. For example, Art. 1, Sec. 3 reads:
“No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”
There are no other qualifications specified. In Powell v. McCormack, 395 U.S. 486 (1969), the Supreme Court ruled that the qualifications laid out in the text of the Constitution are complete—that is, states cannot add to them.
In the 1990s, when term limits for Congress were all the rage, supporters of term limits attempted to get around the “qualifications” clause by using the state’s general authority to regulate elections. Instead of directly prohibiting a person from serving more than a set number of terms, they passed state legislation that a person who had served a certain number of terms would be ineligible to appear on the ballot. Voters could still write-in their names, and if victorious as a write-in candidate, the person could still serve, so they argued that they weren’t actually adding to the qualifications in the Constitution. This was challenged in court.
In U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), the Supreme Court (majority opinion by Justice John Paul Stevens) first reaffirmed the holding in Powell:
“In the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist … the text and structure of the Constitution, the relevant historical materials, and most importantly, the basic principles of our democratic system all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution.”
So a state can’t simply require a candidate to disclose taxes as a qualification for holding office.
Next, the court considered whether styling the measure only as a restriction for appearing on the ballot made a difference—if a ballot restriction were an acceptable regulation of the “manner” of elections.
Here the court wrote: “Constitutional rights would be of little value if they could be indirectly denied. The Constitution nullifies sophisticated as well as simple-minded modes of infringing on constitutional protections.”
It continued: “Petitioners would have us believe, however, that even as the Framers carefully circumscribed [legislative] power to set qualifications, they intended to allow [legislatures] to achieve the same result by simply formulating the regulation as a ballot access restriction under the Elections Clause. We refuse to adopt an interpretation of the Elections Clause that would so cavalierly disregard what the Framers intended. …
“The Framers intended the Elections Clause to grant States authority to create procedural regulations, not to provide States with license to exclude classes of candidates from federal office. … [T]he Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints. …
“States are thus entitled to adopt generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.”
The court then reviewed its ballot access cases (cases involving state requirements to submit a certain number of signatures before appearing on the ballot, filing deadlines, and independent candidacies), and concluded:
The provisions at issue in Storer [v. Brown, 415 U.S. 724 (1974)] and our other Elections Clause cases were thus constitutional because they regulated election procedures and did not even arguably impose any substantive qualification rendering a class of potential candidates ineligible for ballot position. They served the state interest in protecting the integrity and regularity of the election process, an interest independent of any attempt to evade the constitutional prohibition against the imposition of additional qualifications for service in Congress. And they did not involve measures that exclude candidates from the ballot without reference to the candidates’ support in the electoral process. Our cases upholding state regulations of election procedures thus provide little support for the contention that a state imposed ballot access restriction is constitutional when it is undertaken for the twin goals of disadvantaging a particular class of candidates and evading the dictates of the Qualifications Clauses.”
The court concluded: “[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.” Note that the fact that the requirement applied equally to all potential candidates was irrelevant to the court’s determination.
More broadly, the court has never upheld ballot restrictions that would keep any candidate with reasonable odds of getting a substantial portion (about 5 percent or more) of the vote off the ballot. See e.g. Williams v. Rhodes, 393 U.S. 23 (1968); Anderson v. Celebrezze, 460 U.S. 780 (1983); Norman v. Reed, 502 U.S. 279 (1992).
So under Powell, Thornton, and other precedents, it’s quite unlikely that the proposed California measure would get past the U.S. Supreme Court.
An attorney, Brad Smith served as a commissioner, vice chairman and chairman of the Federal Election Commission between 2000 and 2005.