Can States Compel Trump To Produce His Taxes To Be On Their Presidential Ballot?

The Electoral College And Alabama Football.

. California would require candidates to release their tax returns to appear even on their party’s primary ballot. Thus, if Trump does not release his taxes, he would not even appear on the Republican Party’s primary ballot in California, at least if this holds up in court.

Maybe Trump can win the Republican nomination without any California votes at the convention. California will decide 176 of the 1,276 delegates required to secure the Republican nomination. While that is a whopping nearly 14% of the votes needed to secure the nomination, he does not yet have any credible opponents for the Republican nomination. Still it would be an embarrassment at the convention for all those votes to go another way.

Furthermore, California is not alone. At least 18 states are considering varying tax disclosure requirements. Two big ones include New York, and Illinois. , a critical state Trump won in 2016.

Are Such Requirements Constitutional?

The question is whether such a state requirement to appear on the ballot is Constitutional. The Constitutional argument against the tax return demand is that , Section 1 sets the minimum standards for a President (age and natural born citizenship) and that states cannot create their own additional to that. However, nothing even suggests that the Article II floor is also the ceiling.

As a starting point, California’s proposed law does not say who will get the state’s electors. It says what candidates must do to appear on the state ballot. At least theoretically a candidate could still win the state’s electors with a sufficiently viable write in campaign. That may sound impractical, which moves us to the next point.

States, quite necessarily, have many additional requirements for appearing on the ballot that do not appear in the Constitution. For example, being nominated by a major party. In Texas, a candidate seeking to be on the state ballot as a major party’s representative must have participated in the Texas primary (with rules set for appearing on that party’s ballot set by the parties). Where in the Constitution is the demand that to be President you have to participate in a specific state primary, and win a party’s nomination?

Independent candidates in Texas, not affiliated with a major party, must get a petition signed by at least 1% of the total votes for President cast in the state in the prior election. Where in the Constitution is such a requirement imposed to be President?

One answer: those things are not a requirement to be President, but rather to be on the state’s ballot. Ditto for California’s tax return demand.

The Supreme Court Rejected Similar Arguments As Applied To Congressional Candidates

However, arguments similar to these were rejected by the United States Supreme Court in , 514 U.S. 779 (1995). The state of Arkansas imposed term limits on its representatives in Congress. In a 5–4 decision the Supreme Court found the state-mandated term limits unconstitutional. The Court declared, “allowing individual States to adopt their own qualifications for congressional service would be inconsistent with the Framers’ vision of a uniform National Legislature representing the people of the United States.” The court went on to reject the argument that the requirement was not for office, but just to appear on the ballot, on grounds that write in candidates were not really viable.

Interestingly, the split in the court had most of the conservative justices allowing the states to impose term limits. Justice Thomas wrote a dissent that was joined by Justices Rehnquist, O’Connor and Scalia. A similar review today might reach a different result merely due to a more conservative composition of the court.

The Difference In Constitutional Text For Choosing Congressional Candidates vs. The President

To distinguish the Thornton case from a hypothetical case regarding the President, it is necessary to take a look at the applicable Constitutional text.

Article I, Section 2:

“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”

And the 17th Amendment providing for popular election of Senators:

“The Senate of the United States shall be composed of two Senators from each State, elected by the people.”

In short, the language of the Supreme Court in Thornton holding that the Constitution intends a national legislature to represent and be chosen by the people is well founded. The Constitution is explicit that, outside of a couple of expressed Constitutional restrictions, it is the people who choose their elected members to Congress. States do not choose, the people do. Under our Constitution, states have no choice in this.

Contrast this to the language in that relates to states choosing Presidential electors.

“Each State shall appoint [its electors], in such Manner as the Legislature thereof may direct.”

Here, the power to decide how electors are chosen is squarely, and solely, with each state legislature. It is not with the people, and it is not with the national government. The power is not directly with the people through elections, as mandated for the national Congress, but is rather completely at the discretion of the state.

Alabama Football And The Electoral College

The decision as to how to appoint its electors is left to each state legislature. Voting by the people is not even required. Even whimsical selection methods are Constitutionally permissible, so long as they don’t violate another Constitutional provision. If Alabama’s legislature decided to award that state’s electoral college votes based on the winner of the Bama v. Auburn football game (with the winning school’s head football coach getting Alabama’s block of electoral college votes) that would be Constitutional.

I say this not because I fear that even football frenetic Alabama will make such a decision, but rather to reflect the breadth of discretion the states have under the Constitution when awarding their electoral college votes.

The Supreme Court Has Held That The State Power To Choose Electors Is Plenary

More realistically, a Republican dominated state legislature, say Texas for example, could decide that rather than risk the state’s electoral college choice to a vote of Texans, that they will simply grant the electoral votes to whoever the Republican candidate is. Would that piss me off? Yes. Would I be compelled to admit that it is permitted under our Constitution? Also yes. The United States Supreme Court said as much in .

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States . . . the state legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself.”

When choosing members of Congress, states’ power is not plenary. States must allow the people to choose their representatives by election. For Presidents, states are free to appoint their electors however the hell they want.

Under the Constitution, the people do not choose the President, a few hundred electors do. Further, under our Constitution the people do not necessarily even choose the electors. States choose electors however they want. To be plenary it must surely include the power to demand from candidates whatever a state desires in the way of documentation.

The Danger Of Abuse

Does this risk states going too far? Where would this stop? While I personally think tax returns are a valid demand, this could open the door to a slippery slope leading to things as banal as High School transcripts. This is a fair concern, but the Constitution-based answer arguably is, “wherever each state says it stops.”

The Constitution is not a backstop against every conceivable absurd result. Presumably, the good sense of the people of Alabama (and other states) will keep things from going too far. For over 200 years nothing has stopped the State of Alabama from awarding its electors based on the results of a football game, and yet nothing of the sort has ever been seriously considered.

Addressing A Problem

States seeking to do this have a legitimate point. For many years such legislation was not necessary. All viable candidates for President voluntarily released their tax returns. Then Trump came along who lied about it, , and didn’t.

Republicans have suddenly become quite enamored with the right to lie, at least as applied to their side. What California, and other states, propose is a reasonable measure to hold a politician accountable for his broken promises.

If nothing else, the effort by states to compel production of tax returns from Presidential candidates will generate discussion on a topic the President of the United States would prefer to avoid.

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80