Erwin Chermerinsky, Dean of the U.C. Berkeley School of Law, has this op-ed in the Los Angeles Times, saying that the new California law requiring presidential primary candidates to reveal their tax returns is constitutional.

The op-ed does not mention the California Constitution, which tells the Secretary of State to put all “recognized” candidates for a party nomination on one of the presidential primary ballots.

The op-ed says the law does not violate the U.S. Constitution because any presidential candidate is free to reveal his or her tax returns. However, that ignores court decisions which have struck down other requirements for ballot listing (for federal candidates) that were voluntary. The 10th circuit decision Campbell v Davidson, 233 F.3d 1229 (2000) said Colorado could not keep a congressional candidate off the ballot just because he refused to register to vote. He was entirely free to register; he was a resident of Colorado.

The highest state court in Maryland, the Court of Appeals, ruled in 1950 in Shub v Simpson, 76 A. 2d 332, that Maryland could not keep a congressional candidate off the ballot because she refused to sign a loyalty oath.

The Minnesota Supreme Court ruled in Backstrom v Kiffmeyer, A04-1647, in 2004, that Minnesota could not keep a congressional candidate off the Republican primary ballot on the grounds that the candidate lived in Rome, Italy. He was free to come home to Minnesota, but he chose not to.

The Ninth Circuit ruled in Schaefer v Townsend, 215 F.3d 1031 (2000) that California could not keep a congressional candidate off the ballot on the grounds that he wasn’t registered to vote in California. He had homes in both California and Nevada, but chose to be registered in Nevada. He could have changed his registration to California, but chose not to.

On July 31, attorneys for Alabama filed this brief in Hall v Merrill, 18-1362. This is the case over whether Alabama can require a petition of 3% of the last gubernatorial vote in special elections, when there isn’t much time to petition. Alabama asks the Court not to take the case. Alabama’s brief says the issue is “unimportant” even though there have been thousands of special congressional elections in U.S. history, and typically nine or ten every two years.

The U.S. District Court had ruled after the special congressional election that the law was unconstitutional. The state appealed, and the Eleventh Circuit ruled 2-1 that the case was moot, and therefore the U.S. District Court should not have issued an opinion. Therefore, the real issue in the U.S. Supreme Court is whether ballot access cases can be adjudicated after the election is over.

The state puts much emphasis on the fact that in the First U.S. House District, there hadn’t been a special election (until the year this case was filed) in 70 years. But Alabama has had special congressional elections 35 times, and it seems irrelevant how long it had been in one particular district. Various U.S. House districts change their boundaries all the time, and sometimes disappear from one decade to the next.

The U.S. Supreme Court had said in 1969 in Moore v Ogilvie that ballot access cases are not moot just because the election is over. And in 1973, the U.S. Supreme Court discussed its Moore holding, and said that the plaintiffs in Moore did not intend to run again in a future election. But the Alabama brief does not mention that.