On August 6, the California Secretary of State filed this brief in the federal lawsuits over the new California law on presidential tax returns. Although there are several related cases, it seems simpler to refer to this case as Trump v Padilla, e.d., 2:19cv-1501. The brief relates to all the federal cases.

The state says that requiring presidential candidates to reveal their tax returns is not a qualification because any candidate is free to reveal the returns.

Previous cases have held that requiring federal candidates to take an oath that they do not belong to a group that advocates the violent overthrow of the government is unconstitutional. That type of oath has been held to be a qualification.

The California government brief says the difference between taking an oath, versus revealing one’s tax returns, is that anyone can reveal tax returns, but some candidates may not be able to take a loyalty oath in good conscience. That is a very tenuous distinction. One could say that President Trump can’t in good conscience reveal his tax returns.

The California brief also discusses one of the cases on whether forcing a candidate for federal office to be registered is or is not a qualification. That case is Schaefer v Townsend, a Ninth Circuit case that said California could not keep Michael Schaefer off the ballot (on the grounds that he wasn’t a registered voter in California) because forcing someone to register to vote is adding a qualification. The new California brief seems to suggest that Schaefer could not register in California because he was a registered voter already in Nevada. Therefore he wasn’t able to register in California (although he had homes in both states). Therefore, he was not free to comply. The brief says that is different than revealing a tax return because anyone is free to reveal a tax return.

But the California government brief does not discuss another case, Campbell v Davidson, 233 F.3d 1229 (2000), a Tenth Circuit case. In that case, a Constitution Party candidate for federal office in Colorado refused to register to vote. He lived in Colorado and was entirely free to register if he wanted to. So, there is really no difference between Doug Campbell and Donald Trump. They were or are both free to comply with the law, but they don’t want to. And Doug Campbell won his case in both U.S. District Court and the Tenth Circuit. Both courts said that requiring him to register to vote was adding an qualification and that the state was not permitted to do that.

The California government brief assumes that courts decide these cases with a balancing test. With a balancing test, the court must evaluate whether the restriction is needed, and also weigh how much harm the restriction does to the candidate. But the Ninth Circuit already said in Schaefer that in qualifications cases, the balancing test is not used. The Ninth Circuit said, “The Term Limits Court rejected such a broad reading of the Elections Clause and held the balancing test inapplicable where the challenged provision supplemented the Qualifications Clause and did not regulate a procedural aspect of an election or require a candidate to show a minimum level of support before running.”

Contrary to a post on this web page from yesterday, Delaware did file a cert petition with the U.S. Supreme Court in the case over whether independents are able to be appointed to a state judicial petition. The name of the case is Governor of Delaware v James R. Adams, 19-309.

UPDATE: here is the cert petition.

On September 5, U.S. District Court Judge Tanya Walton Pratt, an Obama appointee, upheld a restrictive practice of Indiana election officials when they validate signatures on petitions. She refused to grant injunctive relief to John Schmitz, an independent candidate for Mayor of Indianapolis in the November 2019 election. He would have had enough valid signatures if the instances at which the voter filled in his or her current address, instead of the address of registration, could have been counted. But she refused to order that those signatures be counted. Here is the 17-page opinion.

The judge said it does bother her that the government petition form says, “Residence Address”, instead of “Voter registration address.” But she said it can be presumed that Indiana voters have read the election code, and they know or ought to know that petitions require the voter registration address. She did not even mention the federal Voting Rights Act, which has language which other courts have used to recognize this type of petition signature. The case is Schmitz v Marion County Board of Elections, s.d., 1:19cv-3314.