Trump Campaign Sues To Block California Law Requiring Release Of Tax Returns

The Trump campaign and several other parties have filed lawsuits challenging California's new law requiring candidates for President to release copies of their tax returns.

As expected, the Trump Campaign and several other organizations have filed lawsuits seeking to block the enforcement of California’s new law requiring candidates for President to provide copies of their tax returns in order to gain access to the ballot:

WASHINGTON — President Trump and the Republican National Committee filed a pair of lawsuits on Tuesday against officials in California challenging a new law requiring presidential candidates to release five years of tax returns in order to be placed on the state primary ballot in 2020.

The R.N.C. suit, which was filed in the Eastern District of California and included the California Republican Party and several California Republican voters as plaintiffs, called the law a “naked political attack against the sitting president of the United States.” It was filed against Gov. Gavin Newsom and the California secretary of state.

Mr. Trump and his campaign filed a second suit challenging the constitutionality of the new law, and it named the California secretary of state and the state attorney general. In that suit, they argue that states do not have the power to “supplement” the qualifications for the president, set forth by the Constitution.

The California law, known as the Presidential Tax Transparency and Accountability Act, was signed by Mr. Newsom last week, and was the latest flash point between the White House and the State of California, which is involved in more than 40 lawsuits against the Trump administration, on issues including environmental regulation and immigration.

The California State Legislature approved a similar measure in 2017, but the governor at the time, Jerry Brown, vetoed it, raising questions about whether it was constitutional.

The suits filed Tuesday claim that the law would suppress the votes of millions of Californians who want to vote for Mr. Trump by adding a new requirement for a presidential candidate. The R.N.C. suit asserts that Mr. Newsom was creating an “extra-constitutional qualification for the office of president.” The suit argues that Democratic-controlled state legislatures were challenging Mr. Trump because they were “enraged” by his 2016 victory, when he did not disclose his federal tax returns.

The two lawsuits followed a complaint filed in Sacramento on Monday by Judicial Watch, a conservative group, on behalf of four California voters, seeking to block the law on constitutional grounds.

“There’s an easy fix for the president,” Mr. Newsom said in a statement. “He should release his tax returns as he promised during the campaign and follow the precedent of every president since 1973.”

“The complaint includes more political rhetoric than is common, but it raises the correct legal issues that certainly pose serious challenges to this law,” said Richard H. Pildes, a professor of constitutional law at New York University.

In a statement, Ronna McDaniel, chairwoman of the R.N.C., said that “it certainly doesn’t bode well for Democrats heading into 2020 that their best bet for beating President Trump is to deny millions of Californians the ability to vote for him.”

She called it a “stunt” that was “unconstitutional and, simply put, desperate.”

Jay Sekulow, counsel to Mr. Trump and to the campaign, called the campaign’s lawsuit a “decisive action in federal court challenging California’s attempt to circumvent the U.S. Constitution.” He said “the issue of whether the president should release his federal tax returns was litigated in the 2016 election and the American people spoke.”

California is not the first state to attempt to use ballot access laws as a means of forcing the President and other candidates to provide copies of tax returns. As James Joyner noted in a post in April, there is similar legislation that has been proposed, voted on, or considered in as many as twenty other mostly Democratic-controlled states, although it does not appear that such legislation has been adopted into law in any of these states as of yet. The laws would apply to all candidates for President, of course, but it seems fairly clear that the effort is aimed primarily at Trump who became the first Presidential candidate in over 40 years to refuse to release any of his returns. At the time, the President claimed that he could not do so because he was under audit by the IRS. When it was pointed out that there is no law preventing someone who is being audited from releasing their returns publicly, Trump changed his story to say that he was being advised by lawyers and tax advisers not to release the returns until after the audits were concluded.

As noted there have been several lawsuits filed in connection with this new law. In addition to the Trump Administration lawsuit, the Republican National Committee and California Republican Party have filed a lawsuit in state court against the law, and the conservative legal organization Judicial Watch filed a suit in Federal District Court on behalf of a group of California voters. Essentially, though, all of these actions raise the same legal arguments against the law.

The argument that each of these Complaints raises basically the same, namely that the law in question violates the Constitution because it goes beyond the general authority granted to the states to regulate elections and adds to the qualifications one must meet to qualify for Federal office. These qualifications are set forth in Article I, Section Two, Clause 2 for members of the House of Representatives, Article I, Section Three, Clause 3 for Senators, and Article II, Section 2 Clause 4 for the President and Vice-President. Whether this argument will withstand court challenges is one that has divided legal experts.

Back in 2017, Harvard Law School Professor Laurence Tribe, wrtiting at CNN in a piece co-authored by Norman Eisen and Richard Painter of Citizens for Responsibility and Ethics argued that the states are in fact authorized to pass such laws:

Our federal Constitution allows states to create ballot access requirements that ensure that the ballots for every office, including the office of presidential elector, are comprehensible and informative.

A line must of course be drawn between permissible ballot access laws and impermissible attempts to add qualifications to those specified in the federal Constitution. But our research and analysis lead us to conclude that tax return disclosure laws such as the one proposed in California resemble ballot access laws in structure, impact, and purpose much more closely than they resemble laws imposing additional qualifications for presidential office.

As a result, we believe these laws comport fully with the U.S. Constitution.

Unlike prohibited qualifications, these laws do not impose substantive requirements on candidates beyond those imposed by the Constitution itself; that is, these laws do not limit which candidates may run for office based on any particular information in their tax return. Thus, they do not create an insurmountable barrier in advance to any set of individuals otherwise qualified under Article II of our Constitution. Instead, these laws require federally qualified candidates to comply with a relatively minor process of tax disclosure. That is something competing candidates can and should readily do in order to allow voters to make more informed judgments about those contenders’ characters or backgrounds.

The states have legitimate justifications for providing their voters with this important information. The proposed laws mandate transparency rather than interposing obstacles that some would-be candidates cannot overcome.

Tax returns provide information that is more broad, specific, and reliable than the candidate financial disclosure that is currently required. Candidate financial disclosure forms are generally designed to identify and prevent conflicts of interest — and tax return information could serve a similar function.

Indeed, this could be particularly important for a presidential candidate, as the president is exempt from some (but not all) federal laws governing conflicts of interest once in office. Prevention may be not just the best, but the only available medicine in some situations.

Pepperdine University Law Professor Derek Muller, meanwhile, responded with an Op-Ed in The New York Times that argues that such laws would unconstitutionally impose additional qualifications on those eligible to run for President beyond those prescribed by Article II of the Constitution, something not permitted by the general authority granted to the states regarding the regulation of ballot access:

The Supreme Court has repeatedly held that states can’t use the ballot as a political weapon. In 1964, for instance, Louisiana listed candidates’ race on the ballot. Louisiana maintained it was just providing truthful information to the voters of the state. The Supreme Court struck down the statute on the ground that the ballot was not a vehicle to direct voters to consider a candidate’s race.

In the 1990s, Missouri asked congressional candidates to take a term limits pledge; if they refused to do so, the state would indicate on the ballot that the candidate “declined to pledge to support term limits.” The Supreme Court struck down that ballot provision, too.

Both those cases stand for the proposition that states cannot use their ballots to achieve preferred political or policy outcomes — such as burdening those who prefer to keep some, or all, of their tax information private.

The Supreme Court has, of course, permitted states to regulate access to the ballot for the purposes of separating out serious from frivolous candidates. (Common mechanisms include a modest filing fee or securing a sufficient number of voters’ signatures on a petition.) But the New Jersey bill isn’t intended to ensure that only serious candidates appear on the ballot. It’s intended to get Mr. Trump’s tax returns.

It’s understandable that many state legislatures now want presidential candidates to disclose their tax returns: Mr. Trump’s refusal to disclose was, and continues to be, an issue of concern to many voters in New Jersey and across the country. But the ballot is not a form of leverage that may be used to pressure political candidates to meet legislative demands. This issue is best addressed, as it has long been, by the political process.

Of the two arguments, it appears to me that Muller makes the far more persuasive case than Tribe and his co-authors and that any state law requiring candidates for President, or any Federal office, to release tax returns as a price for ballot access, would most likely be held unconstitutional.  

The most relevant case on this issue would appear to be US Term Limits v. Thornton, the Missouri case which Muller cites in the text above. In that case, Missouri purported to use ballot access laws as a backdoor to imposing term limits on Members of Congress by denying them ballot access if they have served more than the permitted number of terms, which in that case was three terms for Members of the House and two terms for Senators. Such candidates could still seek reelection via a write-in campaign, but they could not run as either the nominee of a particular party or an Independent candidate. The Court ruled that this provision, which actually became a provision of the state Constitution via a ballot measure, violated the Constitution because it imposed requirement for holding the office of Congressman or Senator beyond those set forth in Article One, Sections Two and Three, and the Seventeen Amendment, which set forth the residency and age limitations for holding those offices.

The majority opinion written by Justice John Paul Stevens goes through the history behind the qualifications clauses for Congress, the powers of the states to regulate ballot access and the Tenth Amendment argument that was made in favor of the law before ultimately concluding that the attempt to impose term limit by regulating ballot access was unconstitutional. The argument used by the majority in Thornton would seem to be equally applicable to a state law requiring candidates for President to

The argument used by the majority in Thornton would seem to be equally applicable to a state law requiring candidates for President to would seem to be equally applicable to a state law requiring candidates for President to release their tax returns. As with the Missouri term limits law, such laws would effectively impose qualifications beyond those set forth in Article II, Section One, Clause 5, which have been slightly amended by virtue of the 22nd Amendment to include a bar against a candidate from serving as President for more than two terms, in violation of the Constitution. The effort of Tribe and his co-authors to argue that such laws do not impose additional qualifications is quite simply unpersuasive. 

The proposed New Jersey law that Muller references, for example, would bar any Presidential candidate from appearing on the General Election ballot unless they have released tax returns for the five most recent years prior to the election in question. Clearly, this is something beyond a law governing ballot access, such as the requirement that a candidate for office submit a certain number of signatures to qualify for the ballot and is more analogous to the term limits that Missouri sought to impose in Thornton. Because of this, it seems clear that a law requiring a candidate for President to release their tax returns as a price for getting on the ballot would be unconstitutional.

Here are the Complaints filed in the three cases:

Trump Et Al v. Padilla Et Al by Doug Mataconis on Scribd

Republican Party of Califor… by Doug Mataconis on Scribd

Griffin Et Al v Padilla by Doug Mataconis on Scribd

FILED UNDER: Campaign 2020, Donald Trump, Law and the Courts, Politicians, Taxes, U.S. Constitution, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    He has to do everything he can to hide his tax returns because he has nothing to hide.

    There, I’ve already written the Trumpaloon logic, saving our resident trolls valuable gun-stroking time.

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  2. @michael reynolds:

    To be frank about it, I’m not sure what people think the tax returns would reveal anyway. My guess is next to nothing.

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  3. michael reynolds says:

    @Doug Mataconis:
    Poverty.
    Illegal write downs.
    Phony charitable deductions.
    Income from Russian sources.

    But above all, poverty.

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  4. CSK says:

    If Trump’s tax returns wouldn’t reveal anything, why is he so frantic to keep them hidden?

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  5. Bob@Youngstown says:

    @Doug Mataconis:

    Doug, if true (would reveal nothing) then I’m at a loss to explain the aggressive resistance to making them available to the Congressional W&M chair.

    “Just on principle” seems an inadequate justification, keeping in mind DTs assertion that he had no problem with releasing his returns to the public after audits were complete.

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  6. Kit says:

    @Doug Mataconis: D’s are much better off using this as a cudgel than really getting ahold of those returns. Of course any returns would reveal that Trump lied about his net worth. But he has two easy paths to leave supporters cheering and Democrats fuming:
    1) I hid my money because I’m smart!
    2) I’m rich now because I’ve used the presidency for personal gain!

    And if you think he’s hanging himself by saying that, well I’ll believe it when I see it.

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  7. CSK says:

    @Bob@Youngstown: And then, when the IRS said it had no problem with him releasing those returns, he said he’d release them after the election. But given that he expected to lose the election at that point, he figured he was off the hook.

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  8. Fred Q says:

    Why not have ALL political candidates and journalists release their tax returns plus a list of all assets and sources of income?
    That should make for interesting reading, especially the journalists when people start counting conflicts of interest. 🙂

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  9. Gustopher says:

    @CSK: If people have to fight and claw to get the tax returns, that’s energy and time they don’t have to get the records that matter more, or to oppose policies, or spend time petting cats.

    The Trump administration is fighting every subpoena from congress for the same reason.

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  10. michael reynolds says:

    @Gustopher:
    Trump was refusing to release his tax returns long before there was any threat of a subpoena. This isn’t a distraction or a tactic, Trump is afraid of whatever is in the returns.

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  11. CSK says:

    @michael reynolds: I was about to say that this refusal has been going on since well before Trump took office.

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  12. Gustopher says:

    @michael reynolds: Don’t assume that people have just one motive. I think he and his team have learned to fight everything a long time before he got elected. Get a reputation for not being worth the bother of suing.

    If the tax returns show he isn’t a billionaire (or that his middle name is really Marion, or he’s declaring the child support from Barron’s real father as income, or something), it’s mildly embarrassing to his brand, so don’t volunteer them.

    Once he’s elected, it becomes a thing to deny his opponents.

    I don’t think the tax returns are going to have a line item for money laundering or anything. They’re prepared by professionals and at the very least look plausible on their own.

    If released, there will be a kerfluffle over whether something is legitimate tax avoidance or fraud, with partisan experts claiming each and us all learning a new bizarre name for a tax strategy we don’t have the ability to use ourselves (I’m guessing North Irish Sudoku)

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  13. grumpy realist says:

    Huh. I’d rewrite the California proposed statute to say that any political candidate who has promised to release his taxes must do so, and whack Trump that way.

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  14. Gustopher says:

    Since we actually vote for a slate of electors, rather than the candidate directly, could California rework the law to say that electors cannot be pledged to a candidate that has not released tax returns?

    A ballot reading “unpledged Republican elector” is almost as good as no ballot access at all.

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  15. EddieinCA says:

    A question for the lawyers….

    If the Supreme Court has basically said that:

    A. The states can do pretty much what they want when it comes to gerrymandering and elections, why wouldn’t states be able to pretty much do what they want when it comes to who gets ballot access? After all, the SC has said that gerrymandering is basically a political exercise. Why can’t ballot access be a political exercise?

    B. How can the SC, on one hand, say that elections are only a state matter, then rule that states have to stick to a Federal definition of ballot access?

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  16. OzarkHillbilly says:

    @Doug Mataconis:

    To be frank about it, I’m not sure what people think the tax returns would reveal anyway.

    Hmmm, maybe we should ask trump?

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  17. Mister Bluster says:

    @Fred Q:..Why not have ALL political candidates and journalists release their tax returns plus a list of all assets and sources of income?
    That should make for interesting reading, especially the journalists when people start counting conflicts of interest.

    I’m sure you will agree that commenters on internet Blog threads are journalists and even those that use obvious pseudonyms* should be subject to this disclosure.
    They are all up to no good.

    *Fred Q…give me a brake.

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  18. Andre Kenji de Sousa says:

    In Brazil a law that unfortunately never really caught off was one that requires every single public employee, including teachers, to provide bring their tax returns to the office for eventual assessment.

    If you want privacy choose another line of work. Trump is supposed to be a public servant.

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  19. @EddieinCA:

    Both of your statements are an incorrect statement of what the Supreme Court said in the partisan gerrymandering cases. The court did not say it was acceptable under the law, it didn’t even reach that question. The Court ruled that the Federal Courts do not have the jurisdiction to rule on the issue without reaching the merits of the case. Please see the post I wrote when the decisions were handed down.

    The question that this law raises is whether a requirement like this is something covered by the authority granted to the states to regulate the “time, place, and manner of elections” except where preempted by Federal law or whether they unconstitutionally add to the qualifications necessary to run for and hold Federal office. As I argue in the post, I believe that these laws cross the line and are therefore unconstitutional.

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  20. Gustopher says:

    @michael reynolds: Also, you’re assuming that Trump understands his tax returns enough to think they might be incriminating.

    These are the people who float pardoning Blagowhatever as a possible outreach to Democrats, and released emails about the Trump Tower meeting to show that it was all above board, they just thought they were going to get dirt on Clinton from foreign sources.

    They’re not smart people. Reflexive secrecy doesn’t require smart evaluation of pros and cons, just an instinct.

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  21. EddieInCA says:

    @Doug Mataconis:

    From your earlier post:

    The Supreme Court handed the forces fighting partisan gerrymandering a significant defeat today, ruling that the question raises political questions that Federal Courts cannot rule on. This effectively means that legal challenges in Federal Courts on partisan gerrymandering are going to be dead on arrival

    How is the California case any different? I’m not trolling. I am genuinely trying to understand the difference. The supreme court, has ruled, in many different cases that they stay out of politics. The gerrymandering cases seem to underscore that. So how is this any different?

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  22. Just nutha ignint cracker says:

    For me, the problematic element is that Trump is running for national office. If he decides to stonewall on the California State requirement–and rest assured that he will (I know I would, for example), is it Constitutional for the State of California to say that he can’t be listed as the Republican Party’s nationally selected and endorsed candidate for President? Somehow, I suspect that the answer is “no.”

    I get that this is all a hare-brained, Wiley Coyote-esque ploy to force Trump to release his tax returns. It ain’t gonna work. Get over it and move on.

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  23. EddieInCA says:

    @Just nutha ignint cracker:

    So in your view the States cannot place any requirements on running for Federal office, other than what’s in the constitution? Because, the SC has clearly stated that Federal Elections are actually 50 separate state elections.

    Again. I’m not trolling. I don’t see how these two positions can be consistent. On the one hand, the SC says that the States are in charge of their elections. And on the other, the States are limited to who they can bar from being on a ballot? That doesn’t seem to make sense.

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  24. Joni Robuck says:

    I would like to see Congress keep their grubby little hands off of POTUS’ tax returns, my tax returns, and anytime else’s tax returns. There is so much work Congress needs to be doing and all they can think about is: GET TRUMP! They should all be voted out and term limits voted in!

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  25. grumpy realist says:

    @Joni Robuck: Term limits are unconstitutional.

    Idiot.

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  26. gVOR08 says:

    @EddieInCA: You’re missing the underlying Constitutional principle IOKIYAR.

    I’m only being a little tongue in cheek. Consider a little thought experiment. Assume two years from now Elizabeth Warren is President. Further assume she had not already released her DNA test and Alabama passed a law with a requirement that in future prez candidates release DNA tests. Would we feel so confident that a majority of this Court would not find some BS rationalization for finding it a state matter outside their purview?

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  27. michael reynolds says:

    @Joni Robuck:
    There is no work to be done in Congress because #MoscowMitch refuses to allow any work to be done, and anytime we get close to doing some work the asshat in the White House bounces into the room and fcks it all up.

    Do you not pay any attention to the news?

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  28. Tyrell says:

    @EddieInCA: I may have expressed my concerns before about these types of “disclosure” requirements and the door that this can open. Already there are calls for other public officials and candidates to release their tax returns. I know that this is in California, but other states will try this.
    This could go all the way down to school teachers and the assistant dog catcher.
    After they get tax returns, then they could demand health, employment, internet, and bank records.
    We are already well into an age where privacy is hard to come by. Hacking and compromise of personal data is now regular. Drones are roaming around.
    Our lives are under surveillance of “smart” devices. Just wait until the quantum computers and AI take full effect.
    “If you haven’t done anything wrong, you have nothing to fear”
    “You won’t drive your car. Your car will drive you”
    “We will control the horizontal. We will control the vertical. We will control all that you see and here” (“The Outer Limits” tv show}

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  29. Just nutha ignint cracker says:

    @EddieInCA: I don’t actually GAF enough to have a view. I’m just pointing out what the potential problem with the situation as it will evolve is. When Trump stonewalls, it’s my understanding that under pending California law, he will not be eligible to be on the ballot. How does that work in a national election? I don’t see it. It has nothing to do with what SCOTUS has ruled in the past, what SCOTUS might rule in the future, what the Constitution says or doesn’t say or anything else. How do you legally keep a national party’s candidate for national office off the ballot?

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  30. EddieInCA says:

    @Just nutha ignint cracker:

    How do you legally keep a national party’s candidate for national office off the ballot?

    https://ballotpedia.org/Ballot_access_requirements_for_presidential_candidates_in_California

    Seems there are several ways. Heck, the SOS could just refuse, based on my reading of the current laws.

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  31. Holly Brewer says:

    The Emoluments Clause (Article I, Section 9, Clause 8 ) of the US. Constitution states “No Person holding any Office of…Trust, shall, without the Consent of the Congress, accept of any present, Emolument…from any …foreign State.” https://bit.ly/2GH599p

    Seeing any presidential candidate’s tax returns allows us to track where funds come from and go to. With so much foreign and corporate cash in politics – particularly in this upcoming election – it is imperative that we protect ourselves from presidential candidates who work for the benefit of foreign powers or corporations.

    Many public officials have to show their tax returns for the same reason: and so the president should definitely have to. https://wapo.st/2bCKKaG Also, other presidential candidates have disclosed their tax returns since the 1960s. https://bit.ly/2YWWkFW To put legislation in place to insist on it is simply a formality.

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  32. Just nutha ignint cracker says:

    @EddieInCA: Okay, I see what you are getting at, but
    1) Trump will be running as the GOP candidate and
    2) there is no evidence that there will be a California GOP primary this year that I’ve seen. Has anybody actually petitioned in ANY state to run against Trump?

    Yes, it is possible that the SOS could simply refuse to put Trump’s name on the ballot. The SOS could also be found in contempt of court for doing so. I get that you don’t like Trump; I don’t either, but as I noted earlier, the pending legislation/rule is a Wile E. Coyote scheme from Acme
    Ballot Placement Products. “We the people” are gonna have to vote him out of office and get used to not knowing what’s in his tax returns.

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