Law professor Vikram Amar writes here on Verdict that the California law requiring presidential candidates to reveal the last five years of their federal income tax returns does not violate the U.S. Constitution. He writes that because state governments are free to deprive the voters of a popular vote for presidential electors, therefore it follows that state governments can set any limits on who can run for president in either the general election or in a presidential primary, if those limits do not violate any other part of the Constitution.
The U.S. Supreme Court already rebutted that argument in Williams v Rhodes, 393 US 23 (1968). In that case, Ohio required a petition of 15% of the last gubernatorial vote for a new party to get on the ballot, and did not permit independent presidential candidates. Ohio argued that it has “absolute power to put any burdens it pleases on the selection of electors because of the First Section of the Second Article of the Constitution, providing that ‘each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…’ to choose a President and Vice President.” (quoting Williams v Rhodes, p 28-29).” But the U.S. Supreme Court struck down the Ohio law because it violated Equal Protection for candidates and voters.
Other U.S. Supreme Court decisions that struck down ballot access laws for president candidates are Moore v Ogilvie (which said that an Illinois law for independent presidential candidates could not include a county distribution requirement); Communist Party of Indiana v Whitcomb (which said that Indiana could not require a loyalty oath for new parties that wanted to petition for president and other office); McCarthy v Briscoe (which said that Texas had to permit independent presidential candidates); and Anderson v Celebrezze (which said that Ohio could not have a petition deadline for independent presidential candidates as early as March 20). Amar did not mention any of these cases except Anderson v Celebrezze.
Amar’s column also does not discuss the state constitutional issue for the California law.
Amar might say in response that the tax returns bill does not violate equal protection for candidates. But it clearly violates equal protection for voters. The law discriminates against voters who wish to vote for President Trump in 2020 in the primary.
But, isn’t the question whether it violates the STATE constitution?
ONE more RED Donkey communist Prof in RED CA.
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WZ — USA Const PREZ qualifications being blatantly violated — added on stuff.
While Vikram Amar is correct that there is no constitutional right to vote for presidential electors, there is a constitutional right in 14-2 to vote if a state should choose to use popular election of presidential electors. Maybe Amar will argue that Smith v Allwright and Terry v Adams are bad law.
The California Constitution also implicitly provides for a popular election of presidential electors.
California’s representation in Congress should be reduced to one member. Apply 2 USC 6 now!
Uniform definition of Elector-Voter in ALL of the USA – esp in RED communist CA.
Voters elect USA Prez/VP, Marshals, DA’s and all USA Judges — via NONPARTISAN AppV – pending Condorcet.
Excellent points, Richard. It is decided law that states cannot effectively ADD qualifications to lesser federal office through their power over the ballot. One might suppose that this also precludes states from effectively adding qualifications to President and Vice President. The argument that states have absolute control over the ballot with respect to Presidential electors is utter nonsense. Amendments to the Constitution (which the 1st, 14th and 15th are) take precedent over the original language of the Constitution; and, in any case, the judiciary has to resolve seeming contradictions and omissions in law, usually guided by precedent. States, were they to choose the legislative method of appointing electors can base their choices on almost any criteria; but, once they put the choice of electors onto the ballot states, in the absence of a compelling reason, must respect the fundamental rights of the people. Even with a compelling reason, the state would have to narrowly-tailor its remedy. If California can demonstrate a compelling reason for the voters to know tax returns, perhaps Texas should compel candidates to file a brain MRI. Is it possible, even in theory, to draw a bright line as to what disclosures are compelling?