Now we will finally get an answer to this vexing political question — is Jerry Brown wiser than Gavin Newsom? The state of California will now spend hundreds of thousands of dollars to defend the law Newsom signed after Donald Trump’s presidential campaign and the GOP sued the state today. At issue is whether California can impose requirements for a federal office not contained in the US Constitution:
The Trump campaign and Republican Party sued California on Tuesday over a new law requiring presidential candidates to release their tax returns to run in the state’s primary.
One of the suits contends California’s law is “a naked political attack against the sitting President of the United States.” …
The lawsuits argue the law violates the U.S. Constitution by creating an extra requirement to run for president and deprives citizens the right to vote for their chosen candidates. The Constitution puts just three requirements on presidential candidates: That they are natural born citizens, 35 or older and a U.S. resident for at least 14 years.
Brown vetoed a similar bill two years ago, noting that it was fairly obvious that it wouldn’t withstand judicial scrutiny. But even if such a law was constitutional, Brown observed at the time, it would still be a bad idea. What else would states require from candidates for federal office if this precedent got set? High school transcripts? Health records? Spotify lists?
The judges in this case might not bother to weigh the pros and cons of public policy, because they won’t need to do so. The state can’t impose requirements on such candidates in the first place beyond confirming the requirements already in the Constitution. Tax status isn’t among those requirements, and the New York Times notes that the law was already being viewed skeptically by “legal scholars”:
The vast majority of presidential nominees over decades have released their tax returns, with the exception of President Gerald Ford in 1976. Mr. Trump’s decision not to release his tax returns was one of the early traditions he shattered. But Mr. Newsom’s attempt to codify the tradition of disclosure into a law has raised serious constitutional issues, according to legal scholars.
“What other kinds of regulations can one imagine that states might impose on presidential candidates to get onto the ballot?” said Richard M. Pildes, a professor of constitutional law at New York University.
Brown’s warning about the optics of this extends even further. RNC chair Ronna McDaniel sneered at California’s “desperation” in making this attempt:
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.”
Well, yes, that’s exactly what it is. If California wants to codify tax-return release into a prerequisite for office, they need to find thirty-seven other states willing to ratify a constitutional amendment to that effect. Otherwise, the courts should take little time into overturning this stunt … even in the Ninth Circuit.