Earlier this month, California began to join the growing chorus of Democrat-run states that are restricting which candidates may be listed on the presidential ballot. Normally, Democrats decry any limits on ballot access, be they for candidates or voters, but this bill is different. Why? Because it is an undisguised attempt to keep Donald Trump off the ballot, and when Trump enters the equation, his opponents throw all other calculations out the window.
The bill is dressed up as a law to compel the president to release his tax returns, but it is really a form of nullification of federal law, the act of Resistance enragés who care for nothing so much as the idea that Donald Trump should not be allowed to occupy the White House. They will allow no law or Constitution to stand in the way of that goal.
Even beyond the blatant illogic of this bill is a more nefarious truth. This bill, in combination with another unconstitutional measure passed by California’s legislature, would not only deny Trump the presidency but would give California the power to deny any Republican presidential candidate a national electoral victory.
The bill currently under consideration in California is similar to one that the state’s legislature passed in 2017. It would, according to the Associated Press, “require anyone appearing on the state’s presidential primary ballot to publicly release five years’ worth of income tax returns.” In 2017, it took the wisdom of Gov. Jerry Brown to put a stop to this radical idea. Here in 2019, Gov. Gavin Newsom has said only that the bill “would be evaluated on its own merits.”
These ballot-access bills have been kicking around legislatures since the moment Trump was elected. No one was particularly concerned that millionaire socialist Bernie Sanders never published his tax returns, but when Trump did the same and won the election, the breach of tradition become a cudgel for the left to use against him. (Sanders finally published his returns in 2019.)
So far, it’s mostly been resistance theater. States fully controlled by Democrats like California, Hawaii, New Jersey, and Rhode Island have passed such bills in at least one house of their legislatures, but more sober-minded lawmakers have delayed their enactment for now. It hints at the mindset of state legislators: they would rather holler about a national issue than do their jobs and make laws that might actually help their constituents.
But just because they have not passed these laws yet does not mean they will never pass them. Newsom may sign California’s bill into law. New Jersey’s governor—a multi-millionaire Democratic investment banker who let reporters peek at (but not copy) his tax returns for a scant two hours—has also not ruled out signing the anti-Trump bill into law.
In all, 30 states have had some bill like this proposed. As their anger with the president grows, it is ever more likely that one of them will enact it.
Isn’t This a Win for Federalism?
Proponents of these bills ask: if conservatives are as dedicated to federalism as they claim to be, how can they object to the idea that states set their own ballot access requirements? It’s a good question—if you don’t bother to think about it for more than 30 seconds. The problem, as countless scholars and pundits have noted over the past two years, is that states may not create new requirements for federal offices.
There are many explanations of why this is the case (including my own 2017 article found here,) so it is best just to summarize them. When the Constitution’s authors created a federal government, they made it independent of the states. They wrote up qualifications for House, Senate, and presidency. These were federal offices that would be governed by the federal Constitution, in contrast to the way things had worked under the Articles of Confederation. This made the federal government stronger and forged a direct connection between it and the people.
This theory was affirmed in 1995 in the court case of U.S. Term Limits, Inc. v. Thornton. That case involved attempts by the state of Arkansas to add to qualifications for election to Congress—specifically, by imposing term limits. The opinion by Justice John Paul Stevens illustrated the logical inconsistency of states altering the qualifications for federal offices.
“As the Framers recognized, electing representatives to the National Legislature was a new right, arising from the Constitution itself. The Tenth Amendment thus provides no basis for concluding that the States possess reserved power to add qualifications to those that are fixed in the Constitution. Instead, any state power to set the qualifications for membership in Congress must derive not from the reserved powers of state sovereignty, but rather from the delegated powers of national sovereignty. In the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist” (emphasis mine).
This gets to the heart of the problem. States retained many powers after the enactment of the Constitution, but they do not get to usurp the powers of the federal government.
Besides being unconstitutional, as Brown noted in his 2017 veto message, the law creates a slippery slope toward a system that is more about political choices than actual qualifications. “Today we require tax returns, but what would be next?” Brown wrote.
Five years of health records? A certified birth certificate? High school report cards? And will these requirements vary depending on which political party is in power? A qualified candidate’s ability to appear on the ballot is fundamental to our democratic system. For that reason, I hesitate to start down a road that well might lead to an ever escalating set of differing state requirements for presidential candidates.
He makes a good point. I wrote something similar in 2017:
If the states can add the disclosure of income tax returns as a requirement, why could they not add other requirements? Could they keep candidates off the ballot if they do not own property? Or if they own too much? The Constitution imposes a minimum age of 35, but maybe some state thinks fifty is a better requirement, to ensure that a candidate has the requisite life experience. Maybe certain professional background is necessary. Could a state require a presidential candidate to have served in the military? To have held elective office? To have worked in the private sector? All of these ideas would find favor with some constituency or other.
This leads to a system where our only nationally elected offices are not elected on a nationally consistent basis. It would have been bad enough had states been allowed to alter the requirements for congressional elections. The harm there would have been mostly restricted to their own state. California’s plan would alter the way the entire country elects a president.
Many stories about this latest income tax disclosure bill have made the point that all of these bills have been proposed in places that Trump did not win in 2016 and is unlikely to carry in 2020. That is true, but it ignores an important problem that is brought about by a different unconstitutional bill passed by California and 13 other states: the National Popular Vote Interstate Compact (NPVIC).
The NPVIC is another bill favored by Democrats to elect candidates they prefer. The plan is that each state that joins the agreement would require its presidential electors to obey the results of the national popular vote, not the results of the vote in their own state. The NPVIC would come into effect when states representing a majority of electoral votes pass the idea into law.
The idea is deeply flawed and almost certainly will be found unconstitutional if it would ever be used. It is the legislative manifestation at the Democrats’ cry of rage that their nominee, Hillary Clinton, lost the election despite winning the so-called “popular vote.”
Unable to convince their fellow citizens to amend the Constitution, NPVIC supporters pretend that they can abolish the Electoral College by an illegal interstate compact. Like the income tax disclosure requirements, it is a bad idea motivated by intense partisanship.
What do these laws have to do with one another? The answer is simple. If both are enacted by the 2020 elections, they would render it effectively impossible for Donald Trump to be re-elected president. With both these laws in effect, a majority of states would be required to cast their ballots for the popular vote winner, and Trump could be excluded from the ballot in the biggest state in the union for any reason the state’s legislators want. The result is a president chosen by the California state legislature.
Let’s consider an example to show how this would work. Imagine that in 2020, Trump increases his share of the popular vote by four percentage points, while the Democratic nominee’s percentage drops by 1.5 points compared to Clinton’s 2016 numbers (the remaining 2.5 percentage points would be a reduction in third-party votes in this scenario.)
That minor shift would add the swing states of Colorado, Maine, Minnesota, Nevada, New Hampshire, and Virginia to Trump’s column, giving him 351 electoral votes as the system is currently constituted. It would also mean that he won 50.2 percent of the popular vote, so that even if the NPVIC was in effect and not struck down by the courts, Trump would win the election.
You might believe such a scenario is possible or you might not. But anyone faced with such a result would have to admit that an electoral vote spread of 351 to 187 (or more under the NPVIC rules) and a popular vote margin of 50.2 percent to 46.5 percent (with the rest to third parties) equates to a solid endorsement by the electorate. He would have won by the rules of the Constitution and even by the extra-constitutional shenanigans of the NPVIC.
But imagine if California had also excluded Trump from the ballot. The electoral vote tally under the constitutional system would not change at all: even in this rosy scenario for Republicans, the Democratic candidate would still bring home 59.6 percent of California’s vote. But with Trump excluded from the ballot, the total popular vote numbers would change. Even if we assume that all of Trump’s would-be voters in the Golden State would vote for some other conservative, the loss of those votes drops the president down to 46.46 percent nationally—just below the popular vote percentage for the Democrat.
Trump came nowhere close to winning California in 2016, and the same would be true in this 2020 scenario. But he did get more votes out of the state than any state besides Texas and Florida. With both the NPVIC and the ballot exclusion in effect, the election—in which the Republican would have won a resounding electoral majority and gained votes in every state ballot on which he was permitted—is flipped to the Democrat.
Together, these laws rig the game for the Democrats. If the states can exclude anyone they want from the ballot while forming a cartel to control the Electoral College, that will be the end of free and fair presidential elections in America. In their zeal to remove Trump from office, Democratic state legislators would make a farce of the Constitution itself.