By Jim Ellis
May 28, 2019 — Earlier this month, the California state Senate approved a bill that would require presidential candidates to release their tax returns in order to qualify for the Golden State ballot. A similar measure was vetoed by then-Gov. Jerry Brown (D) in 2017, but current Gov. Gavin Newsom (D) is expected to sign the measure.
A total of 17 other states also have similar pending legislation, with the strongest chances for enactment coming most probably in New York and Washington.
The move, of course, is targeted at President Trump who will not release his tax returns. But, would denying him ballot placement in states that he won’t carry actually hurt him?
A contrary argument exists to suggest that Trump and the down-ballot Republican candidates in those states might actually receive some tangential benefits from the president not being on the official ballot in places like California and New York, in particular.
First, if Trump didn’t appear on the California, New York, and Washington ballots, it would not change the Electoral College outcome because he won’t carry any of those states. He will likely concede them at the outset and spend no campaign money in any of those locations. Therefore, his ballot placement in these places could arguably be irrelevant.
Second, when Trump then loses the popular vote, he can claim the national count is illegitimate because he was barred from competing in several states that would have obviously changed the final totals. Additionally, it might make attempting to change individual Electors votes in the 21 states where they are not legally bound to vote as the state electorate a more difficult argument without a clean national popular vote tally.
Third, without Trump’s name on the ballot in places like California, New York, and Washington, it’s possible that other Republican candidates could see a slightly more favorable political climate because the edge might be removed from the presidential contest. Some anti-Trump liberal voters may be disinclined to participate if they actually can’t vote against him, thinking the process would then become a useless exercise.
Republican congressional, state, and local candidates, where they deem necessary, therefore, might have an easier time putting distance between they and the President before the election, thus possibly taking away some of the vitriol that is engulfing today’s campaigns.
Additionally, whether or not a move to force only presidential candidates to release their tax returns as a condition of being placed on a state ballot could hold legal muster is another question. Many legal scholars believe that states do not have the right to add further qualifications for presidential candidates to have ballot access even when recognizing the state’s authority to administer their own elections.
The legal argument portends that the United States Constitution mandates the qualifications to run for president and it would be unconstitutional for a state to add further requirements or restrictions.
This is just one more of the many legal and obscure twists and turns surrounding this presidential election. But, the question surrounding the particular income tax disclosure tactic could find the Democrats enacting a procedure where unintended consequences could, in the end, backfire upon them.