Last week a few lawmakers in California went public with plans to introduce legislation in Sacramento that seeks to prevent presidential candidates who fail to disclose tax returns for the five most recent years prior to the election from having their names appear on the state’s November ballot in 2020 and beyond. The effort is patterned on a similar proposal being pushed by some legislators in New York state. The proposal there, dubbed the Tax Returns Uniformly Made Public (or TRUMP) Act, requires each presidential candidate to disclose tax returns prior to 50 days before the November election, else his name will not appear on the ballot and the state’s electors will be prohibited by state law from casting their votes for him in the so-called electoral college. While many voters (and certainly many journalists) seem to want access to candidates’ tax return information (to see possible conflicts of interest, levels and directions of charitable giving, relative aggressiveness in seeking to minimize tax burdens, and so forth) before presidential elections are held (and were disappointed that Mr. Trump departed from modern tradition in declining to produce his returns), state legislative proposals like the TRUMP Act raise a number of legal and policy issues; in the space below, I address some of them.
Certainly a big threshold question is whether states have legal authority to impose such a requirement on presidential candidates as a condition for the candidates’ names appear on the ballot or their being eligible to be voted for by the state’s electoral college contingent. The New York Times published an editorial earlier this month expressing its belief—and quoting leading constitutional scholar Larry Tribe of Harvard—that laws like the ones being discussed in New York and California should be upheld in court. To be sure, there are arguments in favor of state authority here (because states have broad leeway to regulate so-called “ballot access”), but there are also arguments on the other side, such that prediction is dicey. (And the quote from Professor Tribe did not indicate anything more than that a state “might be able” to impose the kinds of tax-return-disclosure requirements being considered.)
Full Article: Can and Should States Mandate Tax Return Disclosure as a Condition for Presidential Candidates to Appear on the Ballot? | Vikram David Amar | Verdict | Legal Analysis and Commentary from Justia.