Important step: Requiring candidate tax returns is legal

Erwin Chemerinsky, Tribune News Service

Gov. Gavin Newsom on Tuesday took an important step to providing California voters with critical information to inform their election choices. He did so by signing SB 27, which requires all candidates for president to provide their income tax returns to the California Secretary of State as a precondition for appearing on the state’s primary election ballot.

The new law is a legitimate expression of California’s sovereign authority to regulate who is listed on its ballot and ensure that voters are properly informed.

In appraising SB 27, there are two questions: First, is it important for voters to have access to a presidential candidate’s tax returns? Second, is it constitutional for a state to require this as a condition for being listed on the ballot? The answer to both questions is an emphatic yes.

A candidate’s tax returns include information about what a candidate owns, which can let voters know of possible conflicts of interest and whether there are entanglements with foreign businesses and foreign governments. They reveal whether a candidate owes money and to whom.

Tax returns let voters know how much a candidate has paid in taxes and what kind of tax loopholes and shelters he or she has employed. The returns also can be used to verify a candidate’s claim about wealth and income.

This is why, beginning with Richard Nixon in 1952, almost all presidential and vice presidential candidates have released at least some of their tax returns. Since the 1970s, the practice had become standard for those seeking the presidency — until Donald Trump. In 2016, Hillary Clinton released eight years of her tax records. Jeb Bush released 33 years of returns. As with any information, each voter can decide how much the tax information matters when choosing among candidates. But it is impossible to see an argument that it is inherently irrelevant or that voters should not be able to have access to this information.

The question then becomes whether the US Constitution allows a state to require this kind of disclosure as a condition for being listed on the ballot.

In many cases, the United States Supreme Court has expressed deference to the states in deciding what qualifications to impose as a condition for being on the ballot. In Bullock vs. Carter (1972), the Court said, “Far from recognising candidacy as a ‘fundamental right,’” state governments have authority to set conditions that must be met for a candidate to be on a ballot.

The court has put qualifications on those conditions, saying that ballot access rules are likely to be struck down if they discriminate against less affluent candidates or impose restrictions on new or small political parties. But requiring disclosure of tax returns does not run afoul of these conditions.

Although most cases dealing with ballot access have involved state and local elections, the constitutional principles are the same: State governments may set conditions for being listed on the ballot so long as they serve important interests and do not discriminate based on wealth or ideology. Opponents of SB 27 contend that it is inconsistent with the Supreme Court’s decision in United States Term Limits vs. Thornton (1995). In that case, Arkansas law prevented a candidate for Congress from being listed on the ballot if he or she had already served three terms in the United States House of Representatives or two terms in the United States Senate. The Supreme Court said that a state cannot impose qualifications for being in Congress other than those specified in the Constitution.

But 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. 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. Obviously, this law was inspired by Trump’s refusal to disclose his tax returns. But the law is not just about him; it applies to all who wish to be listed on the state’s presidential primary ballots. Indeed, Trump’s behavior shows exactly why the law is needed.