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.

On January 23, 2019, the Alabama Libertarian Party filed a federal lawsuit against the Alabama policy that gives a free list of the registered voters to the qualified parties, but charges unqualified parties tens of thousands of dollars for the list. Libertarian Party v Merrill, m.d., 2:19cv-69.

The state filed a motion to dismiss the case on February 19, and the plaintiffs promptly filed a response. The state replied on March 12. Since then, U.S. District Court Judge Emily C. Marks, a Trump appointee, has not taken any action in this case. Meanwhile, the Alabama Libertarian Party has several petitions circulating, and the drives are handicapped by not having access to the list of registered voters.

In 1970 a 3-judge U.S. District Court in New York ruled that if a state gives a free list of the registered voters to the qualified parties, it must give a free list to unqualified parties that are petitioning. The U.S. Supreme Court summarily affirmed that decision in 1970. Socialist Workers Party v Rockefeller, 400 US 806. Alabama’s brief argued that perhaps the 1970 case, which had been filed by the Socialist Workers Party and the Socialist Labor Party, only meant to refer to unqualified parties that had already finished their petitioning and then wanted the list. But at the time the 1970 case was filed and won, the Socialist Workers and Socialist Labor Parties had not even begun to petition, because in 1970, they were only permitted to petition during the period August-October of an election year, and they won the case on June 18, 1970.