It is likely that more lawsuits will soon be filed against the new California law that requires presidential primary candidates to reveal their income tax returns. At least one such lawsuit will probably be based on the California Constitution, which says that the Secretary of State will put “recognized” candidates for a party nomination on a presidential primary ballot.

That part of the California Constitution was interpreted in 1992 in LaRouche v Eu. A Superior Court in Sacramento ruled that Lyndon LaRouche was a recognized candidate for the Democratic nomination, because he had qualified for the Democratic presidential primary in other states that year, had been on the California Democratic presidential primary in 1988, and had raised some money for his campaign. This case shows that the Secretary of State does not have unfettered discretion to decide which candidates are “recognized”. Here is the 3-page LaRouche v March Fong Eu.

California put that into its constitution in reaction to presidential primaries during the 1960’s in California, when leading candidates chose not to file in California for political reasons. In 1960, Hubert Humphrey and John F. Kennedy did not file in the Democratic primary in California because Governor Pat Brown asked them not to. In 1964, no presidential candidate filed for the California Democratic primary. In 1968, neither Richard Nixon nor Nelson Rockefeller filed in the California Republican primary, because Governor Ronald Reagan asked them not to.

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.