One week after Gov. Gavin Newsom signed a bill aimed at forcing President Trump to release his income taxes, the president’s reelection campaign and the national Republican Party sued to block its enforcement.
The bill, SB 27, requires any presidential candidate to release five years of personal income tax returns in order to appear on the March 3, 2020 primary ballot in California.
The law applies to all candidates regardless of party, but it’s clearly aimed at Trump, who in 2016 broke with a decades-long tradition and refused to release his taxes. It will apply to gubernatorial candidates starting in 2022.
The lawsuit, filed Tuesday in federal district court in Sacramento, claims that California’s law is a “naked political attack against the sitting President of the United States.” One of the president’s attorneys, Jay Sekulow, added that is was “flagrantly illegal.”
The lawsuit claims that the U.S. Constitution clearly lists three qualifications for being president — candidates have to have been born in the U.S., they must be at least 35 years old and they must have lived in the country for at least 14 years — and that states have no right to add their own qualifications.
UC Hastings law professor David Levine said that argument would have more legal grounding if the law applied to the general election.
“Something like this has not been tested so we can’t be certain,” Levine said. “But there’s no requirement under federal law or the Constitution that a president or nominee for president has to be selected in any particular way… so I think California has a pretty good argument that it’s appropriate that it’s permissible for the state to say this is one of the requirements for ballot access.”
But Pepperdine Law School professor Derek Muller, an expert in election law, had a different take.
“The Legislature wants to achieve a particular outcome, it wants to see candidates’ tax returns and conditioning ballot access on that,” Muller said. “In my view it can’t do that.”
Muller notes that other states tried to add qualifications for access to the ballot and the courts struck them down. In the 1960s, for example, (Louisiana) wanted to include the race of each candidate on the ballot. “The court said you can’t do that,” Muller said. “You say you’re trying to inform the public but of course what you’re trying to do is advantage white candidates.”
“The courts have been very reluctant in these cases to add on requirements … you can’t just stack them on there because you think it’s a good idea.”
The lawsuit is the third filed since Gov. Newsom signed the bill, and second in 24 hours. But the political heft of the plaintiffs — the president’s reelection campaign and the national GOP — ensures it a quick journey through the courts.
Two years ago Gov. Jerry Brown vetoed a similar bill, SB 149. His veto message previewed arguments made in this week’s lawsuits, namely that it might be unconstitutional and that would be a slippery slope.
“Today we require tax returns,” Brown said. “What’s next? Five years of health records? … High school reports cards?”
But Gov. Newsom may see a different political calculation, recognizing that anything aimed at embarrassing Trump plays well in California and with Democrats nationally.
Of course laws often have unintended consequences. For example many Democratic candidates have released some of the tax returns but few have released five years and some — like billionaire Tom Steyer — haven’t released any. If California’s law is upheld by the courts, they’ll also have to comply in order to be on the ballot. No doubt some are quietly hoping it’s struck down.
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