California’s governor signed a law this week requiring presidential candidates to disclose their federal income tax returns as a condition for getting on the state’s primary ballot. It’s a bold and creative move aimed at forcing President Trump to release his tax filings — one that a handful of other blue states are considering.
It’s also highly unlikely to work as intended.
The obstacles to the law’s effectiveness are both legal and practical. Courts may well strike down the law on constitutional grounds. But even if the law passes constitutional muster (a big “if”), it lacks the teeth to make Trump comply.
So far, the constitutional question has drawn the most attention, with legal scholars weighing in on both sides of the debate. California Gov. Gavin Newsom, a Democrat, confronted the issue directly when he signed the bill into law on Monday: “The United States Constitution grants states the authority to determine how their electors are chosen,” Newsom said, “and California is well within its constitutional right to include this requirement.”
If only it were so straightforward. The constitutional provision to which Newsom alludes — Article II, section 1, clause 3 — does say that each state has the authority to determine how its “electors” (meaning its representatives in the electoral college) are selected. But that provision is irrelevant to the new California law because the Article II clause applies to the general election, not to party primaries.
Any doubt about that point was resolved by the Supreme Court in a case called Cousins v. Wigoda, which involved a struggle between two groups of delegates seeking to represent Illinois at the 1972 Democratic National Convention. The dispute had pitted a slate of unpledged delegates associated with the powerful Chicago Mayor Richard J. Daley against a block of delegates led by the Rev. Jesse Jackson, who supported Sen. George McGovern of South Dakota. The national party seated the Jackson-McGovern group, but an Illinois court sided with the Daley delegates.
The Supreme Court told the Illinois courts, in effect, to butt out. “The States themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates,” Justice William Brennan wrote for the majority. Choosing a party’s presidential nominee, according to Brennan, is “a task of supreme importance to every citizen of the Nation regardless of their State of residence.” Allowing each state to enforce its own laws “without regard to party policy” could “seriously undercut or indeed destroy the effectiveness” of party conventions for selecting candidates, the court concluded.
That’s not quite the end of the matter, however. California can offer at least two arguments in its defense. The first is that — notwithstanding Cousins v. Wigoda — states retain the authority to ensure the integrity of their elections, including presidential primaries. As the state legislature put it in the preamble to the new law, “California has a strong interest in ensuring that its voters make informed, educated choices,” and a presidential candidate’s tax returns “provide voters with essential information regarding the candidate’s potential conflicts of interest, business dealings, financial status, and charitable donations.”
The legislature is right about this. But as Brennan wrote in the Cousins case, the state’s “interest in protecting the integrity of its electoral process” must be weighed against “the pervasive national interest” in allowing the parties to select their candidates free from interference by the states. But the Supreme Court has offered little guidance on how those two interests should be weighed. As it explained in a separate case, the balancing process depends heavily on the facts presented in each situation, and “[w]hat the result of this process will be in any specific case may be very difficult to predict with great assurance.”
That remains true today. A court considering the constitutionality of the California law will have to weigh the state’s interest in election integrity against Trump’s interest in appearing on the ballot, his California supporters’ interest in being able to vote for their preferred candidate and the Republican Party’s interest in deciding how its nominee is selected. How any given court will come down is anyone’s guess.
California, however, can make a second argument that could strengthen its case. That argument, paradoxically, is that the law should survive judicial scrutiny because it doesn’t actually constrain what Republicans can do: If they want Trump as their candidate, they can have Trump as their candidate. The party’s right to choose its nominee has not been infringed.
That argument carries considerable force precisely because the law itself is so weak. Under the California law, Republican primary voters could still vote for Trump as a write-in candidate — which would likely suffice to secure him a victory in the Golden State, given the lack of any serious GOP challenger. And even if Trump by some miracle lost the California primary, the Republican National Committee could set aside the results of that vote, on the grounds that it was tainted by the state’s tax-return requirement. That argument might help California convince a court that its law is constitutional, but it would require the state to concede that its law is ineffectual.
In short, whether it’s constitutional or not, the law won’t, as a practical matter, interfere with the Republican Party’s selection of its 2020 presidential nominee. That nominee — barring a truly unexpected event — will be Donald Trump, whether or not he abides by the new disclosure rule.
Does this mean that California’s efforts were all in vain? Not necessarily. The norm that presidents and presidential candidates release their tax returns — one honored by all major-party candidates going back to 1980, before Trump bucked it in 2016 — is well worth fighting for. Such disclosure assures taxpayers that taxes are not only for “the little people,” as another New York real estate mogul once said. Disclosure also serves as a check on conflicts of interest.
California’s new law is a powerful assertion by the lawmakers of the nation’s most populous state that we should not let Trump destroy this norm without a fight. That’s an important statement. But will the law be enough to wrest Trump’s tax returns from the president’s hands? Don’t hold your breath.