On January 27, the California Senate passed SB 46 by a vote of 30-10. It says that presidential primary candidates must sign a statement under penalty of perjury that they meet the constitutional requirements to be president.
Here is a new story about the bill. The author, Senator Tom Umberg, says it is to prevent President Trump from running for renomination in 2028.
The problem with this bill is that the California Constitution directs the Secretary of State to automatically place every candidate on presidential primary ballots who is reported in the news media as a significant candidate. The bill, if enacted, would violate the California Constitution for the same reason that the California Supreme Court unanimously invalidated an earlier state law that said presidential primary candidates must reveal their income tax returns.
The Congress, not any state legislators, have the sole authority to judge the qualifications of a person to hold federal office if elected.
The state constitution requires that “recognized candidates throughout the nation or throughout California for the office of President of the United States” be placed on the primary ballot, which is not quite the same thing as being reported in the news media as a significant candidate. By a stretch, it might be interpreted as requiring that the potential candidate be eligible to hold office. (If some group were to campaign for a fictional character like Mickey Mouse, a long-dead politician like Alexander Hamilton or a foreign leader like Claudia Sheinbaum, and got national media attention, that wouldn’t make their “candidate” a recognized candidate.) However, it clearly cannot include a requirement that a potential candidate submit some form in California (such as an oath swearing they are eligible to hold office) to be considered a recognized candidate.
@DK,
At one time favorite son candidates often ran in presidential primaries. This would result in “uncommitted” slates of delegates controlled by party bosses chosen to the national convention. For example, in 1968 then Governor Ronald Reagan was unopposed in the California presidential primary, and Hubert Humphrey was not on the California Democratic Primary ballot. As a result an initiative was passed to have the SOS place “recognized” candidates on the ballot. This was called an “open primary”, which has nothing to do with the conventional senses of the word used by me or Richard Winger. That was in 1970. Meanwhile, the legislature had an initiative that ripped out several pages of text implementing the non-presidential primary, which would be more appropriate for statute (where the text was move). Since the presidential primary text had just been added in June 1970, it was left in in November 1970.
Democratic Party reforms to make the nomination process more small-d democratic resulted in candidates actually running for the nomination, meant that it was relatively easy to determine who was seeking the Democratic nomination, and generally easy for the Republican, and somewhat for the Greens and Libertarians, but almost impossible for the American Independent or Peace & Freedom parties which are not really national parties.
So now the state party leaders submit lists of candidates that they believe should be recognized, and individual candidates can submit their own proof, or file by petition.
Someone who is ineligible for election can not be a candidate for election and thus can not be recognized as such.
The bill is similar to the 2019 law that would not allow recognition of candidates who did publicly reveal their tax forms. However publication of tax forms is not a requirement for president, and was struck down by the California supreme court.
Senator Umberg was the author of the bill that would deny recognition of the “American Independent” party. That bill was vetoed by Gavin Newsom. Umberg also tried to knock his primary opponent off the ballot for submitting too many signatures. The Senate changed its rules to keep Umberg from introducing too many bills.
Tom Umberg is term limited, so he is now running for State Board of Equlaization. He has unsuccessfully run for AG, Insurance Commissioner, State Senator, and Orange County Supervisor.
#NoClowns
President Trump will suspend the Constitution to remain in office.
@Jim Riley,
I wasn’t aware of the 1970 origin of the California constitution’s language about presidential primaries, but it makes sense. However, whatever its intentions, it doesn’t ban “favorite son” candidates (who would be “recognized throughout the state” but not the nation), though I’m not aware of that having happened since its adoption.
I would disagree that it is clear that someone ineligible for election cannot be a recognized candidate, for two reasons. One is that presidential elections don’t directly elect a president, but delegates to a nominating convention (in the primary) or electors (in the general), so it is the candidates for delegate or elector who must be eligible for office to be elected. (And in some cases, a presidential preference primary is a non-binding expression of sentiment separate from the actual election of delegates.) The other, related reason, is that when the name on the ballot for President is a placeholder for the delegates or electors, it can be someone who isn’t expecting to become President himself or herself, but to lead a group of delegates/electors who will help choose a President his or her supporters would want (kind of like “favorite son” candidates traditionally did in primaries).
While the examples of ineligible candidates I gave were (or at least were intended to be) pretty clear cut, there are cases where issues around a candidate’s eligibility aren’t so clear. For example, consider the “birther” claims that Barack Obama and John McCain weren’t natural-born citizens, and if Donald Trump tried to run in 2028 I’m sure his advocates would claim he would be eligible for election beyond that “the country needs him” (though maybe not much more rational). There could be other cases, such as whether restrictions on age and time of residence apply when the list of candidates is set, on election day, on inauguration day, or just at some time during the term for which a candidate is seeking election. In those cases, should the Secretary of State decide whether they can be on the California ballot (and similar decisions, likely reaching different conclusions, be made by election officials in other states)?
Barack Insane Osama is clearly not eligible. He was delivered by a demonic witch doctor in Africa and he doesn’t even look like a real American.
This is database of referendum. The change was in 1972, not 1970.
https://repository.uclawsf.edu/ca_ballots/
@DK,
The constitution says “found by the [SOS] to be recognized candidates throughout the nation or throughout California …” does not really cover Ronald Reagan in 1968, when he was governor but not a national figure. It was likely more a case of covering American Independent Party and others which are not really national parties. But in any case that is not relevant to the proposed new law.
California has provided by statute the procedure by which the SOS makes her findings of candidacy. Under the current procedure, each political party makes what might be considered recommendations. Individual candidates can also provide evidence of their candidacy, and there is still a petition option.
California can not compel political parties that posess a nomination privelege to interpret the primary results in a particular way. Likewise, a political party can not compel California to structure its primary ballots in a particular way. But you can be assured that the Legislature and Democratic Party (and to a lesser extent) will agree.
Currently, Democratic delegate slates qualify, and the presidential candidate communicates whether he accepts their support. The presidential candidate and delegate candidates are tied together, and it is in effect the presidential candidate who is sponsoring the delegate candidates (unless they run the uncommitted).
Under the proposed bill, there is a private right of action. If a voter believes that a future Obama or McCain is ineligible, he can take it to court. The burden of proof would be on the challenger. A challenge based on age might be more successful (for a future P&F candidate perhaps). That would likely be appealed, who knows where it would go. States have been successful in removing presidential electors who refused to vote according to their pledge.