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.