What can states require of candidates for office before they may appear on a state’s ballot? Can they require petitions with thousands of signatures? What about health records? Birth certificates? College transcripts? While some ballot access laws are necessary to ensure organization and efficiency, others have the effect of frustrating democracy. Many times, ballot access laws intended to entrench party power are masked by calls for transparency and accountability. In these cases, the exercise of drawing lines between reasonable and unreasonable requirements is one of function over form. Recently in Patterson v. Padilla, the California Supreme Court struck down a provision of a California law that required presidential candidates to disclose tax returns in order to appear on the primary ballot. While supporters argue the law helps inform voters, the timing of the law, considering the pressure on President Trump to release his tax returns, seems suspect. By blocking enforcement of the provision, the California Supreme Court tried to prevent the state from easing down a dangerous slippery slope. But by leaving key provisions that require gubernatorial and other candidates to abide by the law unscathed, the court left the job unfinished. The reasoning the court employed in this case would also pertain to gubernatorial candidates and others impacted by the law. But, at least for the time being, they will remain subject to the restrictions the court sought to curtail.
The Presidential Tax Transparency and Accountability Act was signed into law in July of this year. One provision of the Act forbade the Secretary of State from “print[ing] the name of a candidate for President of the United States on a primary election ballot, unless the candidate . . . files with the Secretary of State copies of every income tax return the candidate filed with the Internal Revenue Service in the five most recent taxable years . . . .” The California Republican Party (led by Chairwoman Jessica Millan Patterson) argued the provision violated state law by barring inclusion of qualified Presidential candidates from appearing on the ballot and filed an emergency petition with the California Supreme Court in August. A similar lawsuit, filed by the Republican National Committee in federal district court for the Eastern District of California, claimed the provision violated the federal Constitution. Last month, the judge in that case granted the plaintiffs’ request for a preliminary injunction, blocking the provision from taking effect.
Since the deadline for candidates to produce their tax returns under the law is November 26, 2019, the California Supreme Court “exercised [its] original jurisdiction to entertain an emergency petition for a writ of mandate that would forbid the Secretary of State from enforcing the pertinent sections of the Act.” The issue here was whether this law was inconsistent with Article II, section 5, subdivision (c) of the California Constitution, originally enacted as a constitutional amendment in 1972. It reads, “[t]he Legislature shall provide for. . . 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.” (emphasis added). Petitioners argued that requiring candidates to submit their income tax returns “imposes an additional disclosure requirement for appearing on a presidential primary ballot” above what is required by the state constitution. The government claimed that the amendment says nothing about what the legislature can require of candidates in order to appear on the ballot. The government further argued that the language that “[t]he Legislature shall provide for . . . an open presidential primary,” grants the legislature plenary power to enact “reasonable rules” and “neutral disclosure laws that provide relevant information to voters and thus enable the electorate to make a more informed choice among presidential candidates.”
In a unanimous opinion, the court granted the writ of mandate precluding the state from enforcing the law. Writing for the court, Chief Justice Cantil-Sakauye based her conclusion on the amendment’s text, history, and purpose. The analysis turned on what the Secretary of State could consider when determining whether someone was a “recognized candidate[].” Here, the court relied on the ordinary meaning of the word “recognized.” Chief Justice Cantil-Sakauye determined that the most natural reading of the text supported the conclusion that disclosure of tax returns has no bearing on whether a candidate is “recognized . . . throughout the nation or throughout California.” The court also rejected the government’s argument that California’s constitution granted the legislature expansive power in this arena. The court wrote that the law is “readily construed as both recognizing the Legislature’s authority to provide for primary elections and imposing a specific constraint on this power.”
Turning to the amendment’s history and purpose, the Chief Justice determined that the intent behind the amendment, adopted by popular vote, was to make the primary process open and inclusive. In two 1960s elections, major presidential candidates such as John F. Kennedy and Richard Nixon were excluded from the primary ballot. The state adopted the amendment so that California voters would get a meaningful voice in party primaries. The court wrote that “[t]he statutory prerequisite, if not complied with, would exclude from the ballot even someone who is actively seeking the presidential nomination of a political party that participates in the primary election, and is widely regarded as a leading contender for that nomination.” This result would plainly contradict the intent behind the amendment. The court therefore granted the writ of mandate and held that the Secretary of State is prohibited from preventing otherwise “recognized candidates” from appearing on the ballot.
Justices Cuéllar, Chin, Corrigan, Liu, Kruger, and Groban concurred. Justice Cuéllar wrote separately to stress the narrow scope of the decision. He asserted that the opinion should not be read to preclude the legislature from encouraging candidates to disclose tax returns “so long as provision of that information is not a condition for the recognized candidate’s name to appear on California’s primary election ballot.” Justice Cuéllar found that the California legislature may very well determine that its unique position justifies attempts to discourage corruption and self-dealing in our national politics.
This decision is likely the final nail in the coffin for the provision. Some argue that these requirements are necessary for full transparency and merely enshrine a practice that candidates for the highest office have adhered to for decades. While tax returns no doubt promote information and transparency in democratic elections, making ballot access contingent on producing tax returns offends the same interests it intends to promote. Ballot access is as much about the candidates as it is about the voters. Restricting whose names appear on the ballot necessarily restricts voters’ ability to voice their politics and policy preferences. In some instances, restrictive ballot access laws could unduly exclude third-party and independent candidates that challenge the two-party system. In this case, preventing President Trump from getting on the ballot would deprive voters of the state’s 172 delegates at next year’s Republican National Convention. Given the ubiquity of laws passed by state legislatures over the past few years that attempt to strip power from elected officials of the opposite party, limit the franchise, and restrict elections, it seems the court, rightly, understands this law as sliding down the same slippery slope.
Whereas the court’s opinion was thorough, the holding was regrettably narrow. The law not only applies to presidential candidates, but also to candidates for governor and candidates who apply to get on the ballot by petition. In a footnote, the court addressed the latter point, claiming that it would not address the issue because it was not specifically before the court. But the principles espoused by the opinion should clearly apply to these candidates as well. Leaving the tax return disclosure requirement in-tact for future elections of these individuals seems unreasonable in light of the consequences the court identifies in the opinion.