Democrats Trying to Block Trump from 2020 Ballot

Ballot measures across the country would deny access to those who refuse to release tax returns.

A growing number of blue states are trying to force Donald Trump to release his tax returns as a condition of appearing on the 2020 presidential ballot.

Neary twenty states across the county have introduced legislation that would require all presidential and vice presidential candidates to release their individual tax returns in order to appear on the ballot during the presidential or general election, according to data from the National Conference of State Legislatures (NCSL).

Bills requiring prospective presidential candidates to disclose recent tax returns as a condition to appear on the ballot are currently pending in the following fourteen states: Arizona, California, Connecticut, Hawaii, Illinois, Minnesota, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont and Washington. Similar legislation, introduced this year, failed in Maryland, Mississippi, New Hampshire, New Mexico and Virginia.

Despite a few exceptions, nearly all of the state bills that have been introduced would require candidates to post at least five years of their individual tax returns. In addition, virtually every state bill has been introduced by a Democratic lawmaker, an apparent reaction to Trump’s decision to buck decades of tradition during the 2016 election cycle when he refused to release his tax returns.

Although not required by law, every major party presidential nominee since the 1970s has chosen to publicly release his or her tax returns except for Gerald Ford, who only released a summary. Financial disclosures can help paint a fuller picture of a candidate’s business positions and interests by providing information about financial dealings, such as investments, donations, business relationships, assets and possible conflicts of interests.

Salon, “Blue states move to block Donald Trump from 2020 ballot

This is a novel strategy and one I’m sympathetic to. But it’s ultimately undemocratic and, frankly, dangerous.

I believe the American people have a right to know whether candidates seeking to represent them in high office have conflicts of interest. This is particularly important in the case of people like Trump, whose careers have been as something other than salaried politicians.

But candidates are also citizens and have the right to refuse to comply with the norm of releasing their taxes. In cases where they do so, voters should ask themselves why and factor that into their decision.

I am not an expert on election law but my strong instinct is that these measures are unconstitutional. The US Constitution and Federal law determines eligibility of candidates for office. The states have responsibilities for conducting elections but Federal law trumps state law when they conflict.

Rick Hasen, who actually is an expert on election law, considered the issue when Maryland started the current movement two years ago and noted,

The idea of using ballot access to force politicians to do something they don’t want to do is not new—nor is the fight over the move’s constitutionality. The Supreme Court’s 1995 ruling in U.S. Term Limits v. Thornton held that Arkansas could not deny ballot access to congressional candidates who had served more than three terms or to Senate candidates who served more than two terms—measures the state had enacted to create congressional term limits. The Court held that the Constitution set the exclusive qualifications for running for federal office (including age and citizenship requirements), and that allowing individual states to impose addition qualifications “would erode the structure designed by the Framers to form a ‘more perfect Union.'” So while states can set reasonable conditions for presidential candidates to get on the ballot, such as requiring a certain number of petition signatures to be listed, they cannot go further and set substantive conditions for who can run.

POLITICO Magazine, “How States Could Force Trump to Release His Tax Returns

Even though I support Congressional term limits, I think the court got it right.

Still, Hasen contends, there’s an argument to be had that this particular requirement is different.

Article II provides that the “state legislature” “may direct” “the manner” for choosing presidential electors. In Bush v. Gore, the Court stated that this Article II power given to state legislatures was “plenary,” meaning that the states have a broad power when it comes to presidential elections. Indeed, the Court wrote that even though state legislators have given each state’s voters the right to vote for presidential electors, at any time a state legislature can “take back the power” to appoint electors. In other words, if the California or Texas state legislature wanted to directly choose the state’s presidential electors in 2020, the state could do so. As Dean Vik Amar notes, the Constitution does not necessarily include a right of Americans to vote for president at all (and American citizens in U.S. territories do not have this right).

That’s correct. So, how does this apply?

The logic then goes like this: If a state legislature can take back from the voters the right to vote at all for president, it may be able to use ballot-access laws to limit the candidate choices presented to voters. And doing so would not impinge on the Qualifications Clause in Article II because Congress ultimately counts the Electoral College votes and can police that Clause. If a state legislature, for example, chose electors supporting a candidate under the age of 35, the U.S. House of Representatives, which counts the Electoral College votes, could disregard those votes after deeming the underage candidate unqualified.

Color me skeptical. Yes, a state legislature could theoretically go back to the original conception of the Electoral College and simply appoint a committee to choose the state’s Electors. It could follow Nebraska and Maine and allocate Electors on the basis of something other than winner-take-all. But I don’t see how they could institute a process whereby candidates who are qualified under the US Constitution and Federal law are excluded from consideration.

Indeed, Hasen himself seems skeptical that courts would rule his way. He just doesn’t see much political downside.

Except that he comes to the same What if scenario that independently occurred to me:

Still, Democrats should consider the Pandora’s box they might be opening here. Will solidly Republican states allow electors to vote only for Republican candidates for president? If the tax gambit is OK, then such a law might also be constitutional. Or perhaps the GOP would retaliate with laws aimed at voter suppression or other such measures that target typically Democratic constituencies.

At that point, it is unclear if the courts would block such a move. Bush v. Gore also held that once a state grants voters the right to vote it cannot arbitrarily value some people’s votes over others. But the Court also suggested the case was a one-day-only ticket, with no precedential value outside of statewide recounts of election results.

Indeed, Republican-controlled states have already demonstrated that they’re willing to take outrageous measures to make it harder for Democrats to vote.

If it’s okay to demand release of tax returns to qualify for the ballot, why not a pledge to not raise taxes if elected? Or signing to a right-to-life pledge?

We really don’t want to leave it up to the whims of state legislatures to decide who gets to run for President.

Even the defensible exclusions, such as only granting access to nominees of parties who got X percent of the vote in the previous election or candidates who get Y number of signatures, are ripe for abuse and, indeed, abused. But allowing literally everyone who would like their name to appear on the ballot access would be absurdly expensive and make it much harder for people to vote.

But this particular trend is indeed a Pandora’s box. The courts should strike it down at the earliest opportunity.

FILED UNDER: Campaign 2020, Democracy, Donald Trump, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Michael Reynolds says:

    Indeed, Republican-controlled states have already demonstrated that they’re willing to take outrageous measures to make it harder for Democrats to vote.

    Exactly. Republicans have been attacking democracy in this country for decades using a variety of tactics, generally racist in approach, so we shouldn’t open a Pandora’s Box that’s already been busted open? The underlying assumption is that it’s up to us – Democrats – to obey rules, norms and even laws, while we just tsk-tsk the white supremacist party.

    No. Or at least we are getting very, very close to no. At some point continuing to do the right thing when fighting people who care nothing for the law, the constitution, fairness, decency, even a pretext of rationality, is stupid. We keep bringing a butter knife to a shoot-out. There is no appealing to the sense of decency or fairness of Nazis. Sorry, Republicans.

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  2. Xenos says:

    The GOP have broken the constitutional system, so Dems need to be careful about asserting power because that will make the GOP break it more?

    Are we allowed to shoot back at the death squads, even? Because that is the next step, and I would like to know the rules you would have us follow so we do not upset you unnecessarily.

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  3. Michael Reynolds says:

    @Xenos:
    Pearl Harbor, December 7, 1941: No, don’t shoot at the Zeroes, you might make them angry!

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  4. OzarkHillbilly says:

    Democrats Trying to Block Trump from 2020 Ballot

    Bullshit James. That is not what they are trying to do in any way shape or form. Not even close. What DEMs are doing is trying to enforce a minimum standard of transparency in Presidential politics that trump is loath to adhere to.

    Why in Dawg’s name are you carrying water for the certain sure trump Party stance with that header?

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  5. Grumpy realist says:

    Considering the arguments used as to why term limits are unconstitutional, I think the tax release requirement is also likely to be shot down.

    I can however see an argument that while term limits are something that is fixed and out of the ability of the candidate to influence, not releasing one’s tax forms is a totally voluntary action and thus the putative candidate has by his own will put himself outside possible candidacy.

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  6. Tony W says:

    I’m all for hardball in this situation, and I think it might even have interesting repercussions down the road for the National Popular Vote Interstate Compact. There are large numbers of people in every state who would never cast a vote for the Democratic candidate, so they will find another candidate to support. This could materially affect national popular vote totals in an unpredictable way.

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  7. Tony W says:

    @Grumpy realist:

    not releasing one’s tax forms is a totally voluntary action

    I also think it’s easy to argue there’s a compelling state interest in seeing the finances of a candidate – one even supported constitutionally by the emoluments clause.

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  8. Tony W says:

    If it’s okay to demand release of tax returns to qualify for the ballot, why not a pledge to not raise taxes if elected? Or signing to a right-to-life pledge?

    These are policy positions, rather than demonstrations of non-corruption.

    Different animal

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  9. Jay L Gischer says:

    I have similar feelings to others upthread. Democrats should be well behaved while enduring all kinds of crap?

    At the same time, I think your legal analysis is probably correct. It’s probably unconstitutional.

    So, this reminds me of the flag-burning stuff from long ago. I don’t like flag burning, but it seems a legitimate expression of unhappiness with the government, that is protected by the constitution. And a bunch of Republicans called for laws outlawing it. I’m pretty sure that many of them understood such a law would be struck down as unconstitutional, but they did it anyway because they thought the politics worked for them.

    I think this is like that. The politics will work for Dems. We’re not in a good place. Merrick Garland was a kick in the precious, even though it was “legal”. Trump’s behavior in office violates the constitution, every day, with his corrupt conflicts of interest. We know that he had a deal going with Putin for Trump Tower Moscow at least until Election Day. It might still be going on. Is this acceptable?

    So legislatures can pass laws and the SCOTUS can strike them down, and all this will generate more attention, and more headlines directed at Trump’s behavior.

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  10. I’ve written several posts on this issue. Can’t easily link to them via my phone but I agree with the conclusion that these laws are most likely unconstitutional.

  11. wr says:

    @Michael Reynolds: “Pearl Harbor, December 7, 1941: No, don’t shoot at the Zeroes, you might make them angry!”

    I think it’s closer to “Don’t shoot at the Zeroes, because if you do then if we dive bomb Japan they might shoot at our planes.”

  12. JKB says:

    The amusing part is that we know there is nothing in Trump’s tax returns because there are enough corrupt Lois Lerner types at the IRS anything worth the risk would already be out. But then Trump’s personal tax returns are not the various Trump business entities (corporate) tax returns and the latter is where everyone surmises the juicy bits are located.

    As for the various state laws, it seems legislatures could prohibit those who have ever promoted anti-constitutional legislation and laws, say confiscation of firearms, from the ballot. Or in a flashback to the past, provide their birth certificate or school/college transcripts. These latter two are often required as part of the job application process for jobs with far less discretionary authority, where tax filings are not.

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  13. dmichael says:

    OzarkHillbilly nailed it. There is nothing in these laws that seek to deny any candidate an opportunity to run for office in that state. I have come to the conclusion that your sub-heads are merely “click-bait” as you make no attempt to justify those statements in the body of your posts. Trump will qualify to run in those states when he releases his income tax returns just as every other candidate has done so since Nixon.

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  14. gVOR08 says:

    The proper response is for voters to recognize the obvious implication of corruption and not vote for someone who won’t share their returns. But this is all moot, Boof and Kavanaugh will abide by the foundational principal IOKIYAR. Which leaves this just a way to publicize Trump’s failure to disclose. Which makes these proposals actually a pretty damn good idea.

  15. Kylopod says:

    @JKB:

    we know there is nothing in Trump’s tax returns

    Then why the hell has he repeatedly refused to release ‘em? What’s he afraid of?

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  16. Michael Reynolds says:

    @JKB:
    You’re lying, consciously, deliberately, lying. You know there are problems with Trump’s tax returns, otherwise you’d be for releasing them.

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  17. Scott F. says:

    Congressman Neal needs to issue subpoenas on his committee’s order for Trump’s tax returns quickly, then get Mnuchin in a cell for contempt when he continues to stonewall. Be sure the cell is as dingy as possible. It would likely go to the courts, but it would be worth it just to have Steve face even one night of discomfort in his luxurious life.

    Trump’s lackeys need to face some serious consequences for their unremitting contempt for congressional oversight. The states’ actions on a tax return release requirement shouldn’t be necessary.

  18. Scott F. says:

    Or in a flashback to the past, provide their birth certificate or school/college transcripts.

    I’d be okay with this. We’ve still not seen the college transcripts of college credentialed moron currently in the WH.

  19. steve says:

    I think your analysis is correct, but I think others have already made the point that if the GOP continues with unethical and probably illegal tactics (if they didnt own the SCOTUS) then what tactic does one take? We go high when they go low, and they get to elect POTUS.

    Steve

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  20. Here’s a post I wrote in 2017 regarding the Constitutional issues that would appear to bar states from requiring candidates for Federal office from releasing tax returns

    https://www.outsidethebeltway.com/can-states-require-candidates-for-president-to-release-tax-returns-probably-not/

  21. Gustopher says:

    Indeed, Republican-controlled states have already demonstrated that they’re willing to take outrageous measures to make it harder for Democrats to vote.

    If it’s okay to demand release of tax returns to qualify for the ballot, why not a pledge to not raise taxes if elected? Or signing to a right-to-life pledge?

    We really don’t want to leave it up to the whims of state legislatures to decide who gets to run for President.

    I’m kind of ok with that.

    Twice in the last twenty years, we have had a President who did not even win a plurality of the vote. If we are moving away from a democracy, I’d rather brush away the fig leaves as well.

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  22. mike shupp says:

    Ah, Federalism! As the Founding Fathers prescribed.
    What sort of sick un-American zealot would object?

  23. An Interested Party says:

    Ah, Federalism! As the Founding Fathers prescribed.
    What sort of sick un-American zealot would object?

    Anything that benefits Republicans is fair, legal, and appropriate…anything that hurts them is unconstitutional, illegal, and evil…

  24. Franklin says:

    So while states can set reasonable conditions for presidential candidates to get on the ballot, such as requiring a certain number of petition signatures to be listed, they cannot go further and set substantive conditions for who can run.

    I realize this is Hasen’s interpretation of the term limit ruling, rather than what the court said precisely. But if I take it as accurate, what is so unreasonable about releasing tax returns? It is literally just publishing some existing paperwork.

  25. Bob@Youngstown says:

    In order to be on the ballot for a federal office like US Senator or US Representative, candidates MUST pay a filing fee to have ballot access in Ohio. The argument above (constitutionality of a state to create a requirement for ballot access that is above and beyond that stated in the US Constitution), would suggest that these filing fees are violation of the US Constitution.

  26. Bob@Youngstown says:

    BTW, it looks like the 4 paragraphs at the top of this posting , beginning with “Neary twenty states across the county….” were taken from some source. Normally you will cite the source, but apparently that was overlooked. What was the source?

  27. James Joyner says:

    @Michael Reynolds: @Xenos: Doug, Steven, and I have written many times condemning Republican attempts to undermine our democratic institutions. As noted at the outset, I’m more sympathetic to this particular Democratic attempt because it’s about transparency foremost and disadvantaging/sticking it to Trump secondarily. But it’s nonetheless bad policy—and unconstitutional—so I’m calling it out.

    @OzarkHillbilly: My characterization on this is that same as Salon’s–the source for the story. They’re hardly Republican shills.

    @Tony W: Again, I agree that they’re different morally. I don’t think they’re different legally/Constitutionally. If this is allowable, so is that.

    @Bob@Youngstown: I would tend to agree. If the fee is sufficiently small that it simply defrays the real cost of ballot access, it might be allowable but I’m not steeped enough in the SCOTUS rulings to be sure.

    @Bob@Youngstown: Thanks–I’ve added it. When we upgraded to the new WordPress a few weeks back, which has a vastly different writing interface, I started doing something different with citations. But it somehow dropped this time.

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  28. Daryl and his brother Darryl says:

    This is all a moot point, because until red states adopt this measure, it will not have any effect on Dennison.
    He’s going to lose all those blue state electoral college votes anyway…so what’s the difference?
    Perhaps it will bring the issue to the fore, and force him to release his taxes. I suspect that what’s in them is so damaging that he will never release them.

  29. James Joyner says:

    @Daryl and his brother Darryl:

    He’s going to lose all those blue state electoral college votes anyway…so what’s the difference?

    Aside from it being unconstitutional and undemocratic, the blue states here include some Trump won in 2016–notably Pennsylvania and Minnesota. I don’t tend to think of Arizona as a blue state, but Trump won it in 2016 and it’s also on this list.

  30. gVOR08 says:

    @Daryl and his brother Darryl:

    I suspect that what’s in them is so damaging that he will never release them.

    I don’t, actually. I expect petty evasion, amateurish crimes, and embarrassing stuff. Probably evidence he’s worth nothing like the 10 billion he claims. Undervaluations of property over valued elsewhere. Stuff that undercuts his bluster, but more pathetic than fatal. The man’s a clown, not a criminal mastermind.

  31. David S. says:

    The willingness to sacrifice moral high ground for at-any-cost victory is precisely why the GOP is led today by hypocritical white evangelicals without any real interest in fiscal conservatism and have elected and supported Donald Trump through plausible charges of high treason.

    The Dems won’t get there for another twenty years.

  32. Tyrell says:

    @Franklin: “what’s so unreasonable” well, once these demands start, what will be next? Some politicians and misguided individuals will demand school reports, medical records, and shopping lists. And it will not stop with president candidates. State and local candidates including governors, mayors, safety commissioners, elevator inspectors, and dog catchers will also be hassled and can kiss their privacy good by because of these spurious, mischievous demands.
    High quality people will not want to run for any public office knowing that private lives going back to age twelve will be laid bare.