SACRAMENTO, Calif. (CN) – President Donald Trump’s lawsuit seeking to invalidate California’s new law requiring presidential candidates to release their tax returns in order to land on the state’s primary ballot has a puncher’s chance of succeeding, according to legal experts.
“The law’s constitutionality is a really close call,” said Jessica Levinson, a law professor with Loyola Law School, in an interview Tuesday. “A lot of people I respect are saying the law is nondiscriminatory and neutral on its face as it applies to everybody. But if the court’s view this as a new federal constitutional requirement to run for office in California, it’s not constitutional.”
Rick Hasen, another election law expert with University of California, Irvine, agreed the recently passed state law elicits grave constitutional concerns.
“I think the challenges to the law are serious, and I am not certain what the courts will do,” he said Tuesday.
California Gov. Gavin Newsom, who signed Senate Bill 27 into law last week, insists California has the constitutional authority to set its own rules for primary elections.
But Judicial Watch, the conservative activist group representing four Californians also suing to overturn the law, accuse Newsom and state lawmakers of violating the First Amendment and prohibitions stipulated by federal ethics laws, by attempting to require presidential and gubernatorial candidates release at least five years of recent tax returns.
“It is an obvious legal issue that a state can’t amend the U.S. Constitution by adding qualifications in order to run for president,” said Judicial Watch president Tom Fitton. “The courts can’t stop this abusive law fast enough.”
But Levinson said the courts may not view the requirement as a new constitutional federal requirement, but instead accept the state’s argument it is a ballot access law along the order of a filing fee or a signature requirement.
But both Hasen and Levinson note the tax returns requirement could establish a precedent that would allow states to require all manner of documentation in order to qualify for primaries.
It’s something that Governor Jerry Brown fretted over when he vetoed a similar law during the 2017-18 legislative session.
“Today we require tax returns, but what would be next?” Brown wrote at the time. “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?”
But Brown may have had personal reasons for vetoing the bill, as he refused to release his personal federal tax returns ahead his gubernatorial runs in 2010 and 2014.
Nevertheless, legislative analysis of the bill indicated the legality of the bill is not a sure thing.
“Some legal experts contend that the previous court’s guidance regarding congressional candidates would likely extend to the office of the president. Other legal experts contend that similar tax disclosure bills are unconstitutional as the U.S. Supreme Court has repeatedly held that states cannot use the ballot as a political weapon,” the analysis stated.
But Levinson sees the bill as potentially a good thing.
“I do think the requirement to disclose tax returns is good policy as voters should know the financial background of the leader of the free world, to see whether conflicts of interest exist,” Levinson said.
But the ultimate legal calculation will focus on whether California has exceeded its authority by placing new requirements on the office of the president.
The lawsuit names California Attorney General Xavier Becerra and California Secretary of State Alex Padilla. Trump wants the court to find that the law violates the Presidential Qualifications Clause and the First Amendment, and seeks temporary and permanent injunction.
The measure will apply to Democratic and Republican presidential candidates and also requires future gubernatorial candidates to make their tax returns available to voters on the Secretary of State’s website. Lawmakers passed the bill as an urgency measure to cement the requirements in time for California’s primary election in March 2020.
Newsom believes California has the constitutional authority to set its own rules for primary elections. He said Senate Bill 27 would give voters valuable information and encouraged other states to pass similar ballot regulations.
“There’s an easy fix Mr. President – release your tax returns as you promised during the campaign and follow the precedent of every president since 1973,” Newsom tweeted in response to Trump’s lawsuit.
Tuesday’s lawsuits are the third and fourth challenges filed against SB 27 since it was signed last week.
Trump has signed Consovoy McCarthy of Virginia to fight SB 27. He wants the court to find that the law violates the Presidential Qualifications Clause and the First Amendment, and seeks temporary and permanent injunction.
“SB27 violates the First Amendment as it singles out President Trump because he is a Republican and a political opponent,” the lawsuit concludes. “It was enacted to retaliate against the president because of his policy positions, his political beliefs, and his protected speech, including the positions he took in the 2016 campaign.”
Becerra’s office didn’t immediately respond to a media request regarding the lawsuit, but the bill’s author, state Sen. Mike McGuire, called the lawsuit “frivolous.”
“Releasing of tax returns has never been a big deal, up until now. All presidents have done it for 40 years. It comes as no surprise that President Trump would freak out at the prospect of presidential transparency and accountability, but he will need to get used to it. Welcome to the rule of law, Mr. President,” McGuire, D-Healdsburg, said in an email.
Trump’s suit is the latest round in the ceaseless legal match between his administration and the Golden State.
Becerra has sued the Trump administration dozens of times over the last two years, largely focusing on the president’s environmental and immigration proposals. Most of the lawsuits were filed in the Northern District of California, which covers the San Francisco Bay Area.
Meanwhile, the Trump administration has filed its various lawsuits against the state in the Eastern District of California, which includes the state’s capital of Sacramento. The administration is currently fighting a series of immigrant-friendly California laws as well as a landmark net neutrality bill signed by former Gov. Brown.
California won the first round of the immigration spat in July 2018 when U.S. District Judge John Mendez dismissed the heart of the lawsuit. The Trump administration quickly appealed to the Ninth Circuit, where it suffered another defeat from a panel consisting of George W. Bush and Barack Obama appointees. The administration has yet to appeal to the U.S. Supreme Court.
As for the net neutrality fight, the state has agreed to delay implementation of its new regulations until the D.C. Circuit and potentially the U.S. Supreme Court weigh in on a case filed by more than 20 state attorneys general over the Federal Communications Commission’s decision to nix Obama-era rules.