The California legislature is currently considering SB 27, which says that candidates may not appear on a presidential primary ballot if they have not released their income tax returns for the last five years. The California Constitution, Article II, sec. 5(c), says, “The candidates on the ballot are those found by the Secretary of State to be recognized candidates throughout the nation or throughout California.”
When the Senate Elections Committee passed SB 27 on March 19, no one at the hearing mentioned the California Constitution. Instead all of the testimony on both sides concerned the U.S. Constitution. The analysis of the bill did not mention the California Constitutional provision.
Please weigh in and express an opinion about the relationship between SB 27 and the California Constitution.
Two different things going on. Most likely, California code also explains how the primaries are to be used for parties to select their delegates to the national presidential nominating conventions. There is probably also state election code to explain how parties are to select their slate of presidential electors.
The word “candidate” does not appear in the US Constitution – only “persons voted for…” so I don’t see how any testimony could have referenced this document. Likewise, the word “party” isn’t in there either. The Framers used the word “factions” in the supporting Federalist letters.
*** recognized *** = void for vagueness = unconstitutional.
I would say it’s constitutional by the state constitution. The bill mandates a certain way in which the Cal SoS should recognize candidates.
Re both state and federal constitutions, governments are allowed to put other restrictions on candidates. Not all of them are constitution-based ones. For example, states and municipalities may have filing fees, petitions, etc.
In regards to your reference “no one at the hearing mentioned the California Constitution:, this is just a symptom of a country-wide problem. I admit to being late to realizing I needed to look not towards the U.S. Constitution but towards my state constitution in most issues. Now I spend energy getting others to realize that for a vast majority of the issues they face everyday, they should be seeing if their rights are codified in their state constitution, not the U.S. Constitution.
SocraticGadfly, the California Secretary of State does not have unfettered power to decide which candidates are “recognized”. In 1992 the California Secretary of State excluded Lyndon LaRouche from the Democratic presidential primary ballot. LaRouche sued in state court and won. LaRouche v Eu, Sacramento County, 369837, decision of March 26, 1992. In response to the court decision, the Secretary of State then set out regulations saying anyone who qualified for primary season matching funds, or who was on the presidential primary in at least 20 other states, or who established a campaign office in California and campaigned in California, is eligible.
Richard, no .. I meant the other way around. The Cal Legislature, as long as it’s within the state Constitution, has the power to direct the Cal SoS on how to determine “recognized.”
But the bill, in my opinion, is not within the State Constitution. The State Constitution says recognized candidates will be put on the ballot. It is torturing the plain meaning of “recognized” to say that the President of the United States, if he runs for re-election, is not “recognized.”
As corrupt as California is, their Constitution means nothing. They will make it happen. Only the Feds could overturn this.
Why not just realease the tax returns and avoid litigation?
MV —
Waive ALL constitutional rights ???
What is next ???
A videotape of the candidate since Age 1 second ??? —
ie doing only RED communist stuff.
Yeah, not remotely what I wrote and you know it.
What Prez candidate will file the first CRISIS ballot access case ???
Enough T-I-M-E for SCOTUS to get case — BEFORE ballots are printed ???
When will the gerrymander HACKS in legislative bodies be indicted and arrested and put in a Fed slammer for their nonstop subversion attempts ???
MAKE unconstitutional laws — even worse than enforcing unconstitutional laws ???
See Hitler and his fraud declaration of war on Sept 1, 1939 on Poland >>> WW II 1939-1945.
Earlier- ALL the unconstitutional CSA *laws* — getting about 750,000 DEAD in 1861-1865.
There are innumerable excuses to censor voters from choosing freely their preferred candidates. Most typically these censorship measures are couched as quotas to do some such thing or another in a matter which each voter has the right to judge for himself.
If the voters want to punish a candidate for not publishing his tax returns, they can withhold their votes. No arbitrary quotas are needed except to discriminate against some candidates and favor others. That is the voter’s prerogative which should not be abridged.
It’s not necessarily easy for some individuals to release 5 years of tax returns. Many people have been taught that one only needs to save old tax returns for 3 years, 3 months and 15 days past the end of a calendar year.
In the past, some states said candidates had to sign an oath that they don’t believe in overthrowing the government, or they were barred from the ballot. But courts in the past struck down such oaths as applied to federal candidates, on Qualifications grounds. Someone might say,, “Just sign the oath” but other people resist such oaths.
https://www.congress.gov/constitution-annotated/
the zillion A-Z SCOTUS ops about the USA Const.
2018 update edition pending.
—
Caution — ALL SCOTUS stuff subject to being OVER-ruled by later SCOTUS HACKS.
See APPX at end.
https://en.wikipedia.org/wiki/Loyalty_oath
Any RED Donkey loyalty oath ??? —
I swear/affirm that I will ONLY support laws that comply with the Communist Manifesto ???
The provision was added to the constitution after the 1968 election in which neither of the eventual major party nominees, Richard Nixon or Hubert Humphrey, were on the California ballot. At the time it was quite common for favorite sons to win a state’s primary, and then control the entire unit-rule delegation at a brokered convention.
The amendment was Proposition 4 on the June 1972 primary ballot and took effect with the 1976 election.
https://repository.uchastings.edu/ca_ballot_props/775
Prior to 1972, Article II was lengthy and detailed. In November 2017, the entire article (150 lines) was repealed, and a new Article II was enacted. About 40% of that was the “open” presidential preference primary provisions enacted in the previous June. The previous version purported to give the legislature the authority to enact laws relative to the election of delegates to political conventions. The legislature has enacted such laws – but these are of course subject to the consent of each political party.
The purpose of Proposition 4 was to permit voters to participate in the choosing of their party’s nominee.
Proposition 4 requires the legislature to provide for a presidential prefence primary. In California the SOS is responsible for determining the candidate that are placed on the ballot. The SOS is responsible for determining which candidates are recognized throughout the nation or throughout California as seeking the nomination of their respective party. The candidate does not need to file with the SOS unless petitioning for a place on the ballot. Other candidates do not have to file with the SOS, unless they withdraw their candidacy. California does not permit candidates to remove their names solely from the California ballot. They must withdraw nationally.
In effect, presidential primary candidacy is analogous to automatic voter registration. The SOS determines who is a candidate and adds them to the ballot. A person who does not want to be on the ballot must opt out. There is also a path to the ballot by petition. This is analogous to voters who do not have contact with a government agency registering themselves.
Under SB 27, depending on the SOS implementation, the following would happen.
(1) A would-be candidate would submit any income tax form filed with the IRS over the past five years. Many individuals are not required to file an income tax return. Millions could file with the California SOS. Would the SOS place all such candidates on the ballot? Or would the SOS “find” that they are not “recognized as candidates”. But this is contrary to the opt-out nature of Proposition 4.
(2) Alternatively, the SOS would make a reasonable effort to “find” “recognized candidates”. The SOS, for example, could not look for candidates in his armpit. It is not reasonable to look there. Instead he would do something similar to what he did in 2016, when in February 2016 he released the names of 43 persons that he found to be recognized as presdidential candidates throughout the nation or California (statutory provisions for some parties recognize that they might not be making nominations as part of a national political party). Of these, 39 appeared on the June 2016 ballot (Republicans Jeb Bush, Chris Christie, Carly Fiorina, and Mario Rubio had withdrawn).
Under SB 27, the SOS would presumably inform the candidates that he had found them to be recognized candidates throughout the nation or throughout California, but that if they failed to submit their income tax forms, that he would unfind them or find them not to be recognized. This requires a contorted definition of the words “find” and “recognize” and contrary to past practice over the past 11 elections.
The persons most injured by ballot access restrictions are voters. If a voter was forbidden to vote for a qualified candidate in a presidential primary, they might never have the opportunity to vote for the candidate in November. Thus, barring a candidate from the ballot in March, is tantamount to abridging the right to vote for presidential electors in November, in violation of the 14th Amendment (section 2). See US v Classic, Smith v Allwright, and Terry v Adams.
If the state of California wanted to ensure that its voters make informed, educated choices in the voting booth, they could institute a literacy test.
It is possible that Keith Judd, who SOS Padilla found in 2016 to be a recognized candidate nationally had not filed tax returns from 2011-2014 since he was in prison much of that time.
In 2016, Padilla made his finding in February 2016. Many candidates may not have filed their 2015 return by then.
For 2020, it is likely that Padilla will make his finding in December 2019. No candidates will have filed their 2019 return by then, since the tax year is not over.
SB 27 also violates the 4th Amendment. Running for President does not constitute probable cause to seize the tax records (papers) of the candidate.
Richard, now that you understand where I’m coming from, nope, we’ll just have to disagree on this.
It doesn’t torture the issue of “recognized” any more than any other Cal Lege standards for qualifying for a ballot.
As for the federal constitutionality? Well, in general, court rulings on state restrictions have only been for congressional candidates. A number of constitutional law scholars think that a tax returns bill for prez candidates would pass muster. https://newrepublic.com/article/147310/can-states-ban-trump-ballot-doesnt-release-tax-returns
@MV,
Why give up liberty in order to avoid litigation?
Just get in these nice boxcars, and you won’t have to pay the lawyers.
Socratic, that New Republic article is behind a pay wall. What does it say?
Does it mention LaRouche v Hannah, the only decision I am aware of on constitutional qualifications for presidential candidates? That was the 1992 Texas Supreme Court unanimous decision that said the Texas Democratic Party had to put LaRouche on its presidential primary ballot even though he was in prison for a felony.
The Article One qualifications for congress in the US Constitution are worded very much like the Article Two qualifications for president. I don’t see the difference.
@SG,
Anderson v Celebrezze comes into play, since the effect of the legislation is to interfere with a national election.
While a state need not permit voters to choose presidential electors, once it does so it becomes subject to the EPC of the 14th Amendment, and Section 2. You can’t vote for a candidate is clearly an abridgement of the right to vote.
California has statutes that implement how the SOS is to find candidates who are recognized throughout the nation or throughout the state. These implement the state constitution.
SB 27 says that not withstanding any other statute, certain persons shall not be placed on the ballot.
This requires an even more tortured reading, since it attempts to define “placed on the ballot” as meaning “not placed on the ballot”.
@RW,
Texas now permits a political party to exclude presidential candidates. You may recall that the Democratic Partty excluded Dennis Kucinich because he refused to pledge to support the eventual nominee. Presxumably they could establish a rule requiring release of tax returns in order to appear on the ballot in Texas.
Time to get the hell out of this pathetic socialist state with a cost of living that only rich progressives can afford.
The constitution of the United States does not require tax returns for the presidential office. It is unconstitutional to take away tax paying citizens rights to vote for the candidate of their choice just because California thinks they are above the constitution. This has gotten out of control because of the power hungry crap that is going on in our state and Washington DC. The bottom line, we as citizens have the right to vote for who we want. Stop playing games. Could backfire on CA and all other states as well during the next election. The Fed has the right to not count votes when the rules for voting aligned with the constitution are not followed as well. CA is loosing their Middle Class who pay the taxes and in the next 10 years we may very well see a NEW 3rd world state in our country of USA if this crap doesn’t stop.