President Donald Trump is not generally a fan of the rule of law. He is ignorant of constitutional principles. He’s hostile to checks and balances on his power. He’s authoritarian in style and substance. Federal courts have handed his administration setbacks and defeats at a torrid pace. That makes it all the more surprising to find him on the right side of a legal dispute.
The question at hand is whether California can deny Trump a spot on the state’s 2020 election ballot unless he releases his tax returns; the state passed a law last week to that effect. Trump is the first president in 40 years to refuse to release his returns to the public, and Democrats have searched for them ever since, like knights of the Holy Grail. “As one of the largest economies in the world and home to one in nine Americans eligible to vote, California has a special responsibility to require this information of presidential and gubernatorial candidates,” Governor Gavin Newsom said in a statement after signing Senate Bill 27.
Trump and the California Republican Party filed lawsuits this week to block the law from taking effect. The president argues that the bill is a partisan Democratic effort to keep him off the ballot, which is true. More to the point, Trump’s lawyers argue that it violates the Constitution by imposing qualifications for office for presidential candidates beyond what the Constitution itself says. It’s understandable why many Democrats would want Trump to lose this lawsuit, but there are more pressing reasons why they should hope he prevails.
The Constitution itself only prescribes three qualifications for president: he or she must be at least 35 years old, a natural-born citizen, and a resident in the U.S. for at least 14 years. But those aren’t the only qualifications to run for president. State ballot-access laws, for example, require candidates to collect a certain number of signatures to have their name printed on the ballot. Federal courts typically uphold such laws, concluding that the logistical benefit for the states outweighs the burden on would-be candidates.
There is a limit, however. “States cannot supplement the exclusive qualifications for president set forth in the text of the Constitution,” Trump’s lawyers argued in their complaint. “Requiring candidates for the presidency to disclose their tax returns as a condition of appearing on a ballot is an unconstitutional qualification for office.” The Supreme Court has not weighed in on this issue in great detail, largely because states historically have refrained from such gamesmanship at the presidential level. It’s possible that the justices might eventually uphold the California law if it reaches them.
But the balance of probability suggests they’ll strike it down. A Supreme Court ruling in the mid-’90s is instructive here. The Constitution also lays out the age and residency qualifications for members of Congress, and in 1992, Arkansas voters amended their state constitution to bar candidates from the ballot for the U.S. House if they already served three terms and from the U.S. Senate if they already served two terms. There was a loophole of sorts: Prospective lawmakers could still win as write-in candidates, as Trump could in this scenario. Three years later, the Supreme Court struck down the amendment in U.S. Term Limits Inc. v. Thornton.
“First, we conclude that the power to add qualifications is not within the ‘original powers’ of the states, and thus is not reserved to the states by the Tenth Amendment,” Justice John Paul Stevens wrote for the majority. “Second, even if states possessed some original power in this area, we conclude that the Framers intended the Constitution to be the exclusive source of qualifications for members of Congress, and that the Framers thereby ‘divested’ states of any power to add qualifications.” The ruling itself only applies to congressional candidates, but it’s not hard to imagine that its logic could also apply to presidential candidates.
California has not yet filed its reply to either of the lawsuits. But some law professors have already risen to its defense in other arenas. “A critical difference is that, in Thornton, the state completely barred a candidate from being on the ballot if he or she had exceeded the term limits specified by Arkansas law,” Erwin Chemerinsky, the dean of the UC Berkeley law school, wrote in a Los Angeles Times op-ed last month. “SB 27 allows candidates to be on the ballot so long as they meet an additional simple requirement that almost all presidential candidates already do: disclosing tax returns.”
That interpretation is far from universal, even among other liberal legal scholars. “Some are convinced because they believe the state has a legitimate interest in assuring the integrity of the process, or transparency about the candidates,” Lawrence Lessig, a Harvard University law professor, wrote last month. “But again, no one doubts that there is such an interest. The only question is whether that interest can be pursued by conditioning access to the ballot.” Given Thornton and other precedents, Lessig concluded that it couldn’t. “The qualifications in the constitution are both the floor and the ceiling,” he explained. “No state has the power to add to those, however good the reason.”
There are other legal paths to obtaining Trump’s tax returns—or any president’s, for that matter. New York lawmakers passed a law earlier this year that allows the state to hand over Trump’s state tax returns to Congress. (Trump sued the state last month to keep his returns private.) House Democrats are also fighting a legal battle with him to obtain his federal tax returns that they will likely win. Congress could even resolve the question for all time by requiring the IRS to publish ten years of returns from every major-party presidential candidate before the election.
Liberals might also regret it if the Supreme Court somehow upholds the California law, as Newsom’s predecessor Jerry Brown suggested when he vetoed a similar bill in 2018. “While I recognize the political attractiveness—even the merits—of getting President Trump’s tax returns, I worry about the political perils of individual states seeking to regulate presidential elections in this manner,” Brown said in his veto message. “First, it may not be constitutional. Second, it sets a ‘slippery slope’ precedent. Today we require tax returns, but what would be next? Five years of health records? A certified birth certificate? High school report cards? And will these requirements vary depending on which political party is in power?”
That last concern should especially resonate among Democrats. The Republican Party is no stranger to trying to game the electoral process for partisan advantage, whether it’s through gerrymandering Democrats into a permanent legislative minority in some states, depressing nonwhite participation in the census, or enacting strict voting laws to reduce turnout among poorer members of the electorate. It’s not hard to imagine conservative lawmakers in North Carolina, Texas, or Wisconsin using spurious qualifications to keep Democratic presidential candidates off the ballot in key battleground states.
If the goal is to further break American democracy so that Democrats have a slightly easier path to victory, then California’s maneuver makes sense. But if the goal is to build a healthy democratic process that can survive in the long run, this is a step in the opposite direction. “A qualified candidate’s ability to appear on the ballot is fundamental to our democratic system,” Brown said. “For that reason, I hesitate to start down a road that well might lead to an ever escalating set of differing state requirements for presidential candidates.” All Americans should share that hesitation.