DANIEL VAUGHAN: California’s new law that kicks Trump off the ballot is unconstitutional

August 2, 2019

Democrat California Gov. Gavin Newsom recently signed a new law into effect that requires all presidential candidates to turn over five years of tax returns before getting on the ballot. The LA Times reports that presidential candidates “must do so by late November to secure a spot on California’s presidential primary ballot in March.”

The law was passed solely on party lines because the legislation is designed to deny Donald Trump access to the California ballot. There’s just one problem: the law is unconstitutional.

When it comes to the requirements and qualifications for federal office, the U.S. Constitution — and only the U.S. Constitution— contains the necessary requirements for a person to run for office.

States cannot add or take away from those requirements to get on the ballot. Both the Constitution and the United States Supreme Court are clear on this point.

The requirements to run for president are laid out in Article II Section I of the Constitution. It states:

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

You can boil that down to three things: 1) You have to be a natural-born citizen, 2) You have to be at least 35 years old, and 3) You have to be an inhabitant of the U.S. for at least 14 years.

That’s it. There’s nothing about tax returns or anything else.

The Supreme Court agreed with a similar analysis in the 1969 case Powell v. McCormack, which focused on the requirements to be a member of Congress. In that case, Adam Clayton Powell, Jr. was a member of Congress embroiled in so much scandal that the body tried to refuse him his seat after his election. They even went so far as to strip him of all his assignments and power, and refused to administer the oath of office to him.

But the Supreme Court held that not even Congress had the power to do such a thing. The court ruled that “in judging the qualifications of its members, Congress is limited to the standing qualifications prescribed in the Constitution.”

In the 1990s, term limits were all the rage, and states started passing laws that said that candidates running for federal office should be restricted in the number of terms they could run for under state law. Arkansas passed what was known as Amendment 73, “which prohibits the name of an otherwise-eligible candidate for Congress from appearing on the general election ballot if that candidate has already served three terms in the House of Representatives or two terms in the Senate.”

But the Supreme Court struck down that provision in the Arkansas Constitution as it pertained to federal candidates, arguing:

Allowing individual States to adopt their own qualifications for congressional service would be inconsistent with the Framers’ vision of a uniform National Legislature representing the people of the United States. If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended.

In other words, if you want term limits or other requirements on a candidate for federal office, the only means to achieve that is through a constitutional amendment. The text of the Constitution is clear, and the qualifications for office are solely in that text.

A few years later, Missouri tried to get sneaky with their state laws when it came to term limits. They passed a law that had words printed on the ballot denoting if a federal candidate ran for office beyond the term limits they wanted to be imposed. The court noted:

Section 17 prescribes that the statement “DISREGARDED VOTERS’ INSTRUCTION ON TERM LIMITS” be printed on all primary and general ballots adjacent to the name of a Senator or Representative.

But the Supreme Court struck that law down as well because it punished federal candidates for not following state law. The court held that placing such words on the ballot was an attempt to dictate outcomes of a race to disadvantage candidates who were running for office beyond the preferred term limit.

Where does that leave us with the California law? Although all the primary case law deals with congressional offices, the logic of the cases applies cleanly to the presidential qualifications as well.

Indeed, California’s attempts to force a new requirement beyond those listed in the Constitution are just like those from the states that tried to enforce term limits. And the state also can’t alter the ballots to contain anything derogatory about Trump or any other candidate for failing to release their tax returns.

Defenders of the California law claim to want transparency, but all they’re trying to do is either tilt the race in their favor or overrule the U.S. Constitution by creating more hurdles for office than are required by the text. The federal court system will undoubtedly strike this down, and California will likely be forced to reprint their ballots at the last minute at significant cost to the taxpayer.

It’s just further proof that President Trump is driving some blue-state politicians crazy, and now, they’re violating constitutional norms in the name of “resistance.”

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Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.