Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 2019 No. 2 - Mar 12 2019
Attorney General

ELECTIONS—Constitutionality Of Possible Legislation Requiring That Candidates For President And Vice President Of The United States Disclose Their Federal Tax Returns As A Condition Of Appearing On The Ballot

  1. Washington likely may require that candidates for President and Vice President disclose their federal income tax returns in order to appear on the general election ballot.
  2.  Washington likely may require that candidates for President and Vice President disclose their federal income tax returns in order to appear on the presidential primary ballot.
  3. Washington likely may prohibit the secretary of state from accepting a certificate with the names and addresses of presidential electors chosen by a political party or convention if the presidential or vice presidential candidate nominated by that party did not release their federal income tax returns.

March 12, 2019

The Honorable Marko Liias
Senator, District 21
PO Box 40421
Olympia, WA   98504

Cite As:
AGO 2019 No. 2

Dear Senator Liias:

            Along with a group of your Senate colleagues,[1] you have requested our opinion on three questions, which we have paraphrased as follows:[2]

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1.         Is Washington State precluded by the Presidential Qualifications Clause in Article II, Section 1 of the United States Constitution, another federal constitutional provision, or federal statutes from requiring that in order to appear on the November ballot in a presidential year in Washington State, candidates for President and Vice President of the United States must disclose their federal tax returns?

2.         Would an amendment to Washington elections laws violate the United States Constitution or any federal statutes if it required that, in order for their names to appear on the presidential primary ballot, candidates for President of the United States must disclose their federal tax returns?

3.         May Washington State’s elections laws be amended to prohibit the Secretary of State from accepting a certificate with the names and addressed of presidential electors chosen by a political party or convention if the presidential or vice presidential candidate nominated by that party did not release their federal tax returns in the 12 months prior to receiving the nomination?

BRIEF ANSWERS

            Before addressing your individual questions, we want to emphasize that this opinion request raises novel, difficult, and close questions of constitutional law. We have been unable to locate any cases addressing a requirement similar to the one you ask about here, so the available case law on the issues raised by your question is of limited relevance. Moreover, your question implicates several different constitutional concerns, several of which present a close call about which reasonable legal minds could disagree. It is thus exceptionally difficult to predict how a court would rule, because even if a court agreed with our analysis below on most of the questions presented, if it disagreed about just one of the answers it would reach a different ultimate conclusion. For these reasons, although we opine below that the disclosure requirement you propose is likely constitutional, we want to emphasize the uncertainty inherent in this answer. We also want to emphasize that our role in an Attorney General Opinion is to give our best assessment of the law, not to take a position on the merits of a particular policy. Ultimately, whether the Legislature should enact a proposal like the one you have asked about is a policy decision for the Legislature to make. Our office stands ready to defend such a proposal should the Legislature enact it. We simply want to be clear that such a proposal would definitely be challenged in court and would face a meaningful risk of invalidation.

            1.         Probably not. While a close question, the proposed disclosure requirement would likely not violate the Presidential Qualifications Clause because it would not exclude or handicap any class of candidates. The disclosure requirement would likely not exceed the scope of the State’s power under the Presidential Elections Clause because that clause gives States

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exceptionally broad authority. It would likely not violate candidates’ right to privacy because the state interests that underlie the proposal—educating voters and exposing potential conflicts of interest—seem sufficiently strong to outweigh the infringement on privacy. Nor would it excessively burden the rights to vote and to associate for political ends protected by the First and Fourteenth Amendments because the burdens it would place on an individual’s rights to vote and to associate with others for political ends would be slight, and outweighed by important state interests. Finally, we are aware of no federal statute that would likely preempt such a requirement.

            2.         Probably not. The Presidential Elections Clause of the United States Constitution empowers States to regulate virtually every aspect of the presidential election process, including primaries conducted by the States. While laws regulating primary elections have at least the potential to affect the outcome of a party’s choice of its nominee, thus burdening associational rights protected under the First and Fourteenth Amendments, the United States Supreme Court has repeatedly upheld “reasonable, politically neutral regulations that have the effect of channeling expressive activity at the polls.” Political parties in Washington are not required to choose their nominees through the state presidential primary. Thus, the proposed condition on access to the primary ballot would not regulate any party’s internal processes and would impose minimal burdens on associational rights.

            3.         Probably yes. A court would likely conclude that States have power to adopt a requirement like this one under the Elections Clause, which gives States broad authority to regulate the selection of presidential electors. Because such a requirement would not differ significantly in effect from the proposed ballot access restrictions considered in the first question above, the analysis applied there applies equally here.

ANALYSIS

1.         Is Washington State precluded by the Presidential Qualifications Clause in Article II, Section 1 of the United States Constitution, another federal constitutional provision, or federal statutes from requiring that in order to appear on the November ballot in a presidential year in Washington State, candidates for President and Vice President of the United States must disclose their federal tax returns?

            There is nothing inherently unconstitutional about a state regulation that restricts candidates’ access to a general election or presidential primary ballot. The United States Supreme Court has upheld ballot access restrictions when they were “generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 834 (1995) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 n.9 (1983)). While the Term Limits Court struck a ballot access restriction that created qualifications for holding national elected office in addition to those fixed by the Constitution, it also reaffirmed prior cases upholding the constitutionality of various ballot access restrictions that

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did not offend in that way. Id. at 834.[3] And lower federal courts after Term Limits have continued to uphold ballot access restrictions.[4]

            The source of state power to impose such restrictions is Article II, Section 1 of the United States Constitution, which grants States the power to regulate voting in presidential elections: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of electors” who will, by ballot, elect the President of the United States. U.S. Const. art. II, § 1, cl. 2. The power is exclusive to the various States. McPherson v. Blacker, 146 U.S. 1, 35 (1892).[5] It is plenary, allowing States to develop different systems for implementing presidential elections. Bush v. Gore, 531 U.S. 98, 104, 109 (2000) (citing McPherson, 146 U.S. at 35).

            Yet the power is limited. A regulation must not exceed the scope of the grant itself, and States cannot exercise the power in a way that violates other provisions of the Constitution. Williams v. Rhodes, 393 U.S. 23, 29, 34 (1968). For example, a state regulation will violate the Presidential Qualifications Clause if it imposes qualifications for the presidency beyond the three in that clause. Term Limits, 514 U.S. at 827, 831, 832-33. It will violate the First and Fourteenth Amendments if it unfairly or unnecessarily burdens the rights to vote and to associate for political ends. Anderson, 460 U.S. at 786-89, 783-94. And it will violate the Equal Protection Clause of the Fourteenth Amendment if it attempts to achieve its state interest by arbitrary means—treating persons differently without a rationale appropriate to the right at issue. Williams, 393 U.S. at 34; Bullock v. Carter, 405 U.S. 134, 146 (1972). But if it does none of these things, it will satisfy constitutional constraints.

a.         Conditioning ballot access on disclosure of candidate tax returns would likely not violate the Qualifications Clause

            We start by considering the constitutional provision you ask about specifically before moving to other potential constitutional issues.

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            The United States Constitution specifies the qualifications for holding the office of President:

            No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained the Age of thirty five Years, and been fourteen Years a Resident within the United States.

U.S. Const. art. II, § 1, cl. 5. The Vice President must satisfy the same qualifications. U.S. Const. amend. XII. Thus the constitutional qualifications for holding these offices consist of citizenship, age, and durational residence.

            Other constitutional provisions specify similar requirements for serving in Congress, U.S. Const. art. I, § 2, cl. 2; U.S. Const. art. I, § 3, cl. 3, and the Supreme Court has long held that the qualifications listed in the Constitution for members of Congress are exclusive, so statutes cannot add to them. Powell v. McCormack, 395 U.S. 486, 547-48 (1969) (Congress may not add additional qualifications for service in Congress); Term Limits, 514 U.S. at 827 (applying the same conclusion to the States). We see no reason why this conclusion would apply differently to the Constitution’s qualifications for President. See Faas v. Cascos, 225 F. Supp. 3d 604, 613 (S.D. Tex. 2016) (applying the holding of Term Limits to a Texas statute regarding Presidential candidates). We therefore assume that neither Congress nor the States can require additional “qualifications” of presidential candidates beyond those listed in the Constitution.

            The crucial question thus becomes whether requiring a candidate to disclose his or her tax returns in order to appear on the ballot is an additional “qualification” to serve as President. Unfortunately, no case provides a clear answer to that question.

            The leading U.S. Supreme Court decision on the Congressional Qualifications Clause is Term Limits, 514 U.S. 779. That case addressed an Arkansas state constitutional provision that prohibited congressional candidates from appearing on the ballot if they had previously served more than three terms as a federal Representative or two terms as a Senator. Id. at 784. The Court concluded that these state-imposed term limits constituted impermissible qualifications for office, beyond those specified in the Constitution. Even though the Arkansas provision was drafted as a ballot access restriction, it had “the same practical effect as an absolute bar” on certain incumbent members of Congress serving an additional term. Id. at 830. A prohibition on ballot access by term-limited candidates thus constituted an unconstitutional attempt to impose an additional qualification for office. Id. at 831.

            The Supreme Court has said very little in other cases about this clause. In Storer v. Brown, 415 U.S. 724 (1974), the Court addressed several California election regulations, including one that prohibited candidates from appearing on the general election ballot as independents if they had belonged to a political party in the year before the primary election. In a footnote, the Court

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said that the argument that this rule violated the Congressional Qualifications Clause was “wholly without merit.” Id. at 746 n.16. “The non-affiliation requirement no more establishes an additional requirement for the office of Representative than the requirement that the candidate win the primary to secure a place on the general ballot or otherwise demonstrate substantial community support.” Id. And in Powell, 395 U.S. at 547, the Court held that Congress “is without power to exclude any member-elect who meets the Constitution’s requirements for membership.” Id. at 547.

            Unfortunately, none of these cases provides a clear explanation of what counts as a qualification for office and what does not. See, e.g., Cartwright v. Barnes, 304 F.3d 1138, 1143 (11th Cir. 2002) (“In Term Limits, the Supreme Court did not fashion a precise definition of qualification[.]”). In Term Limits, for example, the Court simply held that even under the narrow definition of qualifications that Arkansas proposed—that “only a legal bar to service creates an impermissible qualification”—Arkansas would lose, because the term limit requirement, even if not an “absolute bar” to service, had “the avowed purpose and obvious effect of evading the requirements of the Qualifications Clauses by handicapping a class of candidates[.]” Term Limits, 514 U.S. at 824, 831.

            Without a clear definition of what counts as an impermissible “qualification,” lower federal courts have struggled to apply the Supreme Court’s cases to a range of state and federal requirements on candidates for Congress. They have primarily looked at two considerations the Supreme Court discussed in Term Limits.

            First, lower courts have generally understood Term Limits to mean “that a state provision creating an absolute bar to candidates, who otherwise meet the requirements of the Qualifications Clause, is unconstitutional.” Schaefer v. Townsend, 215 F.3d 1031, 1035 (9th Cir. 2000). Under this test, courts have generally held that a requirement is not an “absolute bar” if it is something a candidate can choose to comply with, as opposed to a quality inherent in the candidate. See, e.g., Biener v. Calio, 361 F.3d 206, 212 (3d Cir. 2004) (“a candidate financially able to pay a filing fee, but unwilling to do so, is not being subjected to an impermissible wealth requirement”); Merle v. United States, 351 F.3d 92, 97 (3d Cir. 2003) (holding that “resign to run” law, which forced a candidate to make a choice between federal employment and running for elective office, does not impose an additional qualification).

            Second, if a state law doesn’t impose an absolute bar to candidates who would otherwise qualify, it may still constitute a qualification for office if the requirement has “the likely effect of handicapping a class of candidates[.]” Term Limits, 514 U.S. at 835-36; see also Schaefer, 215 F.3d at 1035. The Supreme Court unfortunately has never explained what would count as a relevant “class of candidates.”

            Applying this second prong of the test, lower federal courts have held that state laws that prohibit candidates from running for Congress in a state unless they live in the State prior to the election violate the Qualifications Clause. For example, in Schaefer, the Ninth Circuit struck down a California law requiring that candidates for Congress be registered to vote in California (and thus

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have previously lived in California) before they can file. Schaefer, 215 F.3d at 1037. The court held that this added an impermissible qualification because the Constitution itself specifies that candidates must live in the State “when elected,” so “California’s requirement that candidates to the House of Representatives reside within the state before election[] violates the Constitution by handicapping the class of nonresident candidates who otherwise satisfy the Qualifications Clause.” Id.; see also, e.g., Texas Democratic Party v. Benkiser, 459 F.3d 582, 591 (5th Cir. 2006) (holding that state rule that “would exclude, or at a minimum handicap, the pool of nonresident prospective candidates . . . is unconstitutional under U.S. Term Limits”); Campbell v. Davidson, 233 F.3d 1229, 1234 (10th Cir. 2000) (invalidating Colorado law that required candidates to be registered voters because it “disadvantages a particular class of candidates” by “preventing those who are ineligible to register to vote (e.g., persons serving criminal sentences or on parole, and non-residents), from becoming a candidate under the guise of ballot regulation, and second by precluding all non-registering persons from candidacy” (citations omitted)).

            In contrast, lower federal courts have consistently held that requirements that congressional candidates pay reasonable filing fees or gather a reasonable number of signatures in order to appear on the ballot are consistent with the Qualifications Clause. See, e.g., Cartwright, 304 F.3d at 1143-44 (upholding Georgia requirement that candidates from small parties submit signatures of 5% of registered voters in order to appear on ballot, finding that “Georgia’s 5% requirement is not a ‘qualification,’ but a permissible procedural regulation of the manner in which candidates may obtain ballot placement”); Libertarian Party of Illinois v. Rednour, 108 F.3d 768, 777 (7th Cir. 1997) (upholding similar Illinois requirement); Biener, 361 F.3d at 211-12 (upholding $3,000 filing fee against argument that it created an impermissible “wealth qualification”).

            Lower federal courts have also upheld laws that prohibited state and federal employees from running for office, including Congress. For example, in Merle, 351 F.3d 92, the Third Circuit held that the Hatch Act, which bars current federal employees from running for partisan office, including Congress, does not violate the Qualifications Clause because it “allows a citizen a choice.” Id. at 97. “A ‘resign to run’ law may force Merle to choose between remaining as an employee of the federal government and running for elected office, but forcing him to make that decision is not an additional qualification for the office of United States Representative.” Id. Similarly, in Joyner v. Mofford, 706 F.2d 1523 (9th Cir. 1983), the Ninth Circuit upheld an Arizona law that prohibited state elected officials from running for Congress unless they were in the final year of the term of their state office. A state official argued that this imposed an additional qualification on candidates for Congress. The Ninth Circuit rejected this argument, saying the rule did not impose a qualification “because it does not prevent an elected state officeholder from running for federal office,” but merely requires them to resign their state office if they wish to run for Congress. Id. at 1531.

            Applying these cases to the proposed statute requiring disclosure of tax returns in order to appear on the ballot provides no certain answer, but suggests that this rule likely would not qualify as an impermissible “qualification.”

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            To begin with, a requirement that a candidate disclose his or her federal tax returns would not pose an “absolute bar” to candidates who would otherwise qualify. Federal law makes tax returns confidential, 26 U.S.C. § 6103(a), but a taxpayer may choose to disclose his or her own returns, 26 U.S.C. § 6103(c). A candidate could comply with the requirement by choosing to release his or her federal tax returns. And with the exception of Donald Trump, every major-party nominee in recent history has done so.[6]

            It also seems unlikely that a court would conclude that this type of requirement has “the likely effect of handicapping a class of candidates[.]” Term Limits, 514 U.S. at 835-36. A tax return disclosure requirement does not appear to affect any constitutionally relevant “class of candidates.” The only people impacted would be those who do not wish to disclose financial information. But if “candidates unwilling to disclose financial information” were a constitutionally relevant class, it would call into question all sorts of other longstanding state and federal laws. For example, “[t]he Ethics in Government Act of 1978 (EIGA) requires federal candidates—presidential included—to publicly disclose their various financial interests,” though not their tax returns.[7] To our knowledge, no candidate for Congress or President has ever argued that this financial disclosure requirement impermissibly adds a “qualification” to those stated in the Constitution. And courts have consistently upheld requirements more onerous than financial disclosure, such as laws requiring individuals to resign from their current jobs in order to run for Congress. See, e.g., Merle, 351 F.3d 92; Joyner, 706 F.2d 1523.

            In addition, there is no reason to assume that such a requirement would predominantly affect candidates belonging to any constitutionally relevant class. While some have described tax return disclosure requirements as partisan efforts, and the most prominent current example of a candidate affected is of course Donald Trump, there is no reason to think that this requirement would disproportionately affect members of one party or another. For example, former California Governor Jerry Brown, certainly at the other end of the political spectrum from Donald Trump, “did not release his tax returns during his 2010 or 2014 campaigns” for governor, breaking a longstanding tradition of gubernatorial candidates there,[8] and declined to release his tax returns when he ran for President in 1992.[9] As the Fifth Circuit has explained, “disclosure requirements do not limit the choices of any particular group of voters. There is no reason to believe that those most sensitive to their privacy will be Republicans or Democrats, liberals or conservatives, blacks or whites.” Plante v. Gonzalez, 575 F.2d 1119, 1127 (5th Cir. 1978).

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            In sum, while there is no case law directly on point, and our analysis is necessarily uncertain, we believe that a court would likely conclude that requiring disclosure of a presidential candidate’s tax return in order to appear on the ballot does not violate the Qualifications Clause. See generally Danielle Lang, Candidate Disclosure and Ballot Access Bills: Novel Questions on Voting and Disclosure, 65 UCLA L. Rev. Discourse 46, 54-56 (2017) (reaching the same conclusion).

b.         Conditioning ballot access on disclosure of candidate tax returns would likely not violate the Presidential Elections Clause

            The Presidential Elections Clause of the Constitution provides States with broad power to decide how presidential electors are chosen. “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress[.]” U.S. Const. art. II, § 1, cl. 2.

            Only a few cases, all many decades old, have addressed this provision, and none has articulated a clear standard limiting what requirements States can impose in the choosing of electors; on the contrary, all have emphasized the breadth of this power. See McPherson, 146 U.S. at 35 (Congress determines when electors are chosen and the day on which they give their votes, “but otherwise the power and jurisdiction of the state is exclusive”); Ray v. Blair, 343 U.S. 214, 227 (1952); Fitzgerald v. Green, 134 U.S. 377 (1890). The Supreme Court has even said that if a state legislature wanted to, it could simply choose the State’s presidential electors itself, without a vote of the people, which “was the manner used by state legislatures in several States for many years after the framing of our Constitution.” Bush, 531 U.S. at 104 (citing McPherson, 146 U.S. at 28-33).

            Perhaps the most relevant case interpreting this clause is Williams, 393 U.S. 23, where two small parties challenged Ohio’s rules limiting their ability to get their presidential candidates on the ballot. Ohio argued that the Presidential Elections Clause gave it absolute authority to regulate the selection of presidential electors in Ohio. The Supreme Court disagreed, but in doing so it indicated that the only limitation on States’ power under the Presidential Elections Clause is that they cannot adopt rules that violate other provisions of the Constitution. Id. at 29. Assuming that is the test, then the proposed disclosure requirement clearly does not violate the Presidential Elections Clause, and a court would not even meaningfully analyze this issue and would simply address the other questions considered by this opinion.

            In an abundance of caution, however, we will also consider what would occur if a court chose to apply the test the Supreme Court has used to analyze ballot access restrictions States have imposed on candidates for Congress. Those cases have arisen under a different provision of the Constitution, the Congressional Elections Clause, which provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the

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Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.” U.S. Const. art. I, § 4. This clause, unlike the Presidential Elections Clause, explicitly divides power to regulate congressional elections between States and the federal government. And in interpreting this clause, the Supreme Court has held that States may impose only election regulations that are procedural, generally applicable, evenhanded, and that relate to the manner of holding elections. Cook v. Gralike, 531 U.S. 510, 523 (2001).

            Because of the textual differences between the two clauses, and because of the very different approaches the Supreme Court took in Williams and Cook in applying the two different clauses, we think it very unlikely that the Court would apply the Congressional Elections Clause test in this context. Nonetheless, in an abundance of caution, we will consider what would happen if a court applied the same test.

            The leading Congressional Elections Clause case is Cook, in which a congressional candidate challenged an amendment to the Missouri state constitution that directed the State’s congressional delegation to support amending the U.S. Constitution to require congressional term limits. Cook, 531 U.S. at 514. The state constitutional amendment then required ballot language informing voters of any failure of U.S. senators or representatives to support term limits, or failure of non-incumbent candidates for those offices to pledge to do so. Id.[10] Defending the requirement, the Missouri secretary of state argued that it “merely regulates the manner in which elections are held by disclosing information about congressional candidates,” and that the labels “merely” inform voters about a candidate’s compliance. Id. at 523, 525. The Court disagreed, holding that the amendment “is not a procedural regulation [as it] bears no relation to the ‘manner’ of elections as we understand it, for in our commonsense view that term encompasses matters like ‘notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.’” Id. at 523-24 (quoting Smiley v. Holm, 285 U.S. 355, 366 (1932)). The Court emphasized that “‘the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.’” Id. at 523 (quoting Term Limits, 514 U.S. at 833-34). The Court concluded that, “far from regulating the procedural mechanisms of elections, [the amendment] attempts to ‘dictate electoral outcomes.’” Id. at 525-26 (quoting Term Limits, 514 U.S. at 833-34).

            While a close call, we believe that a requirement to disclose one’s tax return to appear on the ballot would likely qualify as a procedural, generally applicable, and evenhanded regulation of the “manner” of elections. The requirement does not attempt to dictate electoral outcomes or favor

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a class of candidates because there is no reason to assume that the substance of the disclosed information will help or hurt any particular class of candidate. Democratic and Republican candidates have faced criticism based on details disclosed in their past tax returns.[11] The requirement is procedural because, unlike the law in Cook, the disclosures it requires have no inherent relationship to the substance of a candidate’s views or policy positions. While the State in Cook sought to justify the language included on the ballot about the candidate’s position on term limits as “informational,” the reality was that the language was “plainly designed to favor candidates” who supported term limits. Cook, 531 U.S. at 524, 525. The requirement also bears a significant relation to the “manner” of elections because it provides information to voters and helps expose corruption, thereby enhancing the “integrity and reliability of the electoral process.” Anderson, 460 U.S. at 788 n.9 (“There can be no question about the legitimacy of the State’s interest in fostering informed and educated expressions of the popular will in a general election.” Id. at 796.)[12]; see also Plante, 575 F.2d at 1137 (holding that the “educational feature” of an amendment to the Florida state constitution requiring that elected officials make public detailed information about their personal finances “serves one of the most legitimate of state interests: it improves the electoral process”). The requirement also furthers the interest in exposing candidates’ potential conflicts of interest, which the Supreme Court has long recognized as an important state goal. See, e.g., Buckley v. Valeo, 424 U.S. 1, 66-67 (1976).

            We therefore conclude that the proposed amendment to Washington elections law would likely not exceed the broad scope of power granted by the Presidential Elections Clause.

c.         Conditioning ballot access on disclosure of candidate tax returns would likely not violate the constitutional right to privacy

            We next consider whether conditioning ballot access on satisfying the disclosure requirement here proposed is an impermissible infringement on the privacy rights of presidential candidates. We conclude that it likely is not.

            Many states and the federal government have long required candidates for office and some other officials to disclose information about their personal finances, though none, to our knowledge, has required disclosure of candidates’ tax returns. See, e.g., Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824; Plante, 575 F.2d at 1125-26 (describing state laws around the country requiring disclosure). “The right to run for office is not a ‘fundamental’ right[,]”

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Plante, 575 F.2d at 1126, so it is unclear exactly how closely a court would scrutinize the impacts of this type of disclosure requirement on candidates.

            Courts have generally applied a balancing test to disclosure requirements, and have usually upheld such requirements by concluding that, although disclosure imposes real burdens on potential candidates, it also serves very important public interests. See, e.g., Plante, 575 F.2d at 1136 (“Financial privacy is a matter of serious concern, deserving strong protection. The public interests supporting public disclosure for these elected officials are even stronger.”); id. at 1136 n.26 (citing cases around the country upholding disclosure requirements); Fritz v. Gorton, 83 Wn.2d 275, 294-95, 517 P.2d 911 (1974) (“[T]he candidate who enters the public arena voluntarily presents or thrusts himself forth as a subject of public interest and scrutiny. While there are many intimate details which may be beyond the scope of legitimate public interest, information which clearly and directly bears upon the qualifications and the fitness of those who seek and hold public office is unquestionably in the public domain.”); see also, e.g., Buckley, 424 U.S. at 64 (upholding requirement to disclose campaign contributors because although “compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment,” it furthers very important government interests, including preventing corruption and informing voters about candidates); Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105, 116 (3d Cir. 1987) (upholding requirement that applicants for special investigations unit of police department provide detailed financial disclosures because “the strong public interest in avoiding corruption among officers assigned to a unit designed to perform investigations in areas traditionally susceptible to corruption outweighs police officers’ limited privacy expectations in the financial information sought by the SIU questionnaire”); Duplantier v. United States, 606 F.2d 654 (5th Cir. 1979) (upholding Ethics in Government Act against lawsuit brought by federal judges arguing that the required financial disclosures violated their right of privacy).

            Underlying the disclosure conditions on ballot access proposed here are state interests essentially the same as those considered by these courts: revealing potential or actual conflicts of interest that the candidates may have, and revealing whether the policies promoted by the candidate would benefit him or her personally. It seems undeniable that the required disclosure of financial information contained in personal tax returns would significantly promote these interests. And a court would have good reason to conclude that these interests, on balance, would outweigh a candidate’s financial privacy concerns.

            The difficulty here is that the disclosures involved in releasing tax returns seem to implicate greater privacy concerns than most financial disclosure laws currently in effect (and previously considered by courts), which typically require less detail than would be included in a tax return. For example, even in Plante, which upheld Florida’s disclosure requirements for candidates, the Court said: “[A] substantial constitutional issue might be raised by disclosure of one’s income tax returns. Such disclosure could be troublesome if it were to reveal the nature of various contributions made by the official or candidate, such as contributions to a church, a political party, or a charity.” Plante, 575 F.2d at 1133 n.20. The Court noted, however, that the State could

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 “eliminate any threat of such sensitive revelations” through regulations narrowing what information on a tax return had to be disclosed. Id. By the same token, if the Legislature chooses to enact the disclosure requirement discussed here, it might wish to consider taking steps to mitigate impacts on candidates’ privacy, such as exempting certain types of information from disclosure (like details about which charities the candidate contributed to) or by creating a judicial or regulatory waiver process candidates could invoke if they thought certain information in a return was especially sensitive. This is not to say that such mitigating steps are necessary, but they would make it easier to defend a disclosure requirement like this one against a candidate’s constitutional challenge.

            In short, while it is a close call, we think a court would likely conclude that a requirement that presidential candidates disclose their tax returns would not violate the candidates’ right to privacy, especially if the law allowed for exemptions for exceptionally sensitive information.

d.         Conditioning ballot access on disclosure of candidate tax returns would likely not violate rights to vote and associate for political ends protected by the First and Fourteenth Amendments

            Ballot access provisions can implicate the constitutional rights to vote and associate for political ends, but if they are reasonable and nondiscriminatory, they generally will be justified if they support important state interests. Anderson, 460 U.S. at 787-88. The Anderson Court explained why fundamental rights are implicated: “voters can assert their preferences only through candidates or parties or both,” and “‘[i]t is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues.’” Id. at 787 (quoting Lubin v. Panish, 415 U.S. 709, 716 (1974)). A voter’s right to vote is burdened when his or her choice of candidates is restricted, as it is by a ballot access law. Id. at 787 (citing Williams, 393 U.S. at 31). The voters’ right to associate for the advancement of political beliefs is likewise burdened, because “a candidate serves as a rallying-point for like-minded citizens.” Id. at 788.

            Still, “[a]lthough these rights of voters are fundamental, not all restrictions imposed by the States on candidates’ eligibility for the ballot impose constitutionally-suspect burdens on voters’ rights to associate or to choose among candidates.” Anderson, 460 U.S. at 788. “[A]s a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer, 415 U.S. at 730. “To achieve these necessary objectives, States have enacted comprehensive and sometimes complex election codes,” each provision of which inevitably affects at least to some degree an individual’s rights to vote and associate for political ends, protected under the First and Fourteenth Amendments. Anderson, 460 U.S. at 788; Burdick, 504 U.S. at 433. Not all such burdens on voters’ rights to associate or to choose among candidates are constitutionally suspect. And the mere fact that a State’s system contains a ballot access requirement that “creates barriers . . . tending to limit the field of candidates from which voters might choose . . . does not of itself compel close scrutiny.” Burdick, 504 U.S. at 433 (alterations in Burdick) (quoting Bullock, 405 U.S. at 143);

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Anderson, 460 U.S. at 788. “[T]he state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.” Anderson, 460 U.S. at 788.

            A court considering a challenge to a state election law must weigh “‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments’” against “‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). When those rights are subjected to severe restriction, the regulation must be narrowly tailored to advance a compelling state interest. Id. at 434. But when a state election law imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, important state regulatory interests are generally sufficient to justify the restrictions. Id.; Anderson, 460 U.S. at 788. There is no “‘litmus-paper test for separating those restrictions that are valid from those that are invidious[.]’” Clements v. Fashing, 457 U.S. 957, 963 (1982) (citing Storer, 415 U.S. at 730). “Decision in this area of constitutional adjudication is a matter of degree, and involves a consideration of the facts and circumstances behind the law, the interests the State seeks to protect by placing restrictions on candidacy, and the nature of the interests of those who may be burdened by the restrictions.” Id. (citing Williams, 393 U.S. at 30).

            In Anderson, the State of Ohio required nominating petitions for independent presidential candidates to be filed by an early filing deadline that the Supreme Court found impermissible. The Court first examined the extent of the burden, concluding that it was substantial—the early filing deadline placed independent presidential candidates, as a class, at a competitive disadvantage. Independents were required to file by mid-March, but the major party nominees were automatically included on the ballot. Anderson, 460 U.S. at 790-91 & n.11. This forced independents, but not major-party nominees, to identify early, and it burdened the signature-gathering process. Id. Because the independent candidates’ petitions were due by mid-March, they would have to be gathered “[w]hen the primary campaigns are far in the future[.]” Id. at 792. This in turn hampered organizing efforts such as volunteer recruiting, publicity, and campaign contributions. Id. The Court found that the law thus placed special burdens on independent voters, and said that “it is especially difficult for the State to justify a restriction that limits political participation by an identifiable political group whose members share a particular viewpoint, associational preference, or economic status.” Id. at 793.

            The state interests offered to justify these burdens were voter education, equal treatment, and political stability. The Court acknowledged each as a legitimate and important interest, but they were hardly, if at all, promoted by the state-imposed restriction. Indeed, the state interest in fostering voter education was more likely to be frustrated than promoted. Id. at 797-98. The equal treatment justification did not work because, in fact, independents were not treated equally. Id. at 799. And the political stability interest was essentially not promoted at all. Id. at 801.

            Applying this analytic scheme to Hawaii’s prohibition on write-in voting in Burdick, 504 U.S. 428, on the other hand, resulted in the law being upheld. Because there were multiple

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ways for candidates to appear on the ballot in Hawaii, the Court concluded that the ban on write-in votes imposed only a slight burden on voters’ rights. Id. at 438-39. Because the burden was slight, there was no need for the State to establish a compelling interest, and strict scrutiny was not required. Id. at 439. The state interests in averting divisive sore-loser candidacies, promotion of a two-stage primary-general election process, and prevention of party raiding were legitimate. Id. at 439-40. The State’s interests were thus sufficient to outweigh the limited burden that the write-in ban imposed on Hawaii’s voters. Id. at 441.

            The proposed amendment to Washington law limiting ballot access to presidential candidates who have disclosed their personal income tax returns appears to be closer to the restriction upheld in Burdick than the one struck down in Anderson. First, the proposal imposes very minimal restrictions on voters’ ability to choose the candidates of their choice. The overwhelming majority of candidates for President in recent decades have willingly released their tax returns, so the effect of this restriction on voters’ choices would likely be minimal. Moreover, unlike the law in Anderson, any burden that exists is not targeted at voters with any particular ideology. As detailed above, candidates of all ideologies have willingly released their tax returns in the past, and the few exceptions have widely differing ideologies. Third, the rights to vote and to associate that might be limited if a voter’s preferred candidate is not on the ballot are limited not by the regulation, but by the candidate’s own choice. See Adams v. Askew, 511 F.2d 700, 703 (5th Cir. 1975) (“it is not the statute which perforce restricts the ballot but the candidate’s decision to pay or not to pay”); Biener, 361 F.3d at 212 (“voter’s rights are not infringed where a candidate chooses not to run because he is unwilling to comply with reasonable state requirements”) (quoting Adams, 511 F.2d at 703); Bullock, 405 U.S. at 146 (where an excessive filing fee unconstitutionally excluded candidates according to their economic status, it was because they were “unable, not simply unwilling, to pay the assessed fees”).

            Thus, the minimal burden on voters’ rights would require only a legitimate state interest related to the voting process to justify it. The state interests here are voter education and exposure of conflicts of interest, both of which are legitimate. See, e.g., Anderson, 460 U.S. at 796 (recognizing that the state has a legitimate interest in “fostering informed and educated expressions of the popular will in a general election”); Plante, 575 F.2d at 1137 (“This educational feature . . . serves one of the most legitimate of state interests: it improves the electoral process.”); Buckley, 424 U.S. at 64 (recognizing that disclosure furthers very important government interests, including preventing corruption and informing voters about candidates).

f.          Conditioning ballot access on disclosure of candidate tax returns would likely not violate any federal statutes

            We are unaware of any federal statute that would arguably preempt a state law like the one described here. The Internal Revenue Code generally prohibits federal officers and employees, as well as certain state officers and employees, from disclosing tax returns and tax information. 26 U.S.C. § 6103(a). That statute, however, does not preclude taxpayers from disclosing their own returns. 26 U.S.C. § 6103(a). The Internal Revenue Code contains no provisions preempting States

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from requiring the disclosure of information as part of the electoral process, or from making public returns that are voluntarily disclosed by the taxpayer. 26 U.S.C. § 6103(a).

2.         Would an amendment to Washington elections laws violate the United States Constitution or any federal statutes if it required that, in order for their names to appear on the presidential primary ballot, candidates for President of the United States must disclose their federal tax returns?

            By the words “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,” U.S. Const. art. II, § 1, cl. 2, the Presidential Elections Clause empowers States to regulate the presidential election process, up to and including the selection of electors. Smiley, 285 U.S. at 366. Such powers include regulation of primary elections on behalf of the political parties. Clingman v. Beaver, 544 U.S. 581, 587 (2005); Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 451-52 (2008). States play a major role in structuring and monitoring the primary election process, but they must act within constitutional limits when regulating parties’ internal processes. California Democratic Party v. Jones, 530 U.S. 567, 572-73 (2000). The First Amendment protects the right of citizens to band together to promote the election of candidates who espouse their political views. Id. at 574. But when a state electoral provision places no heavy burden on associational rights, “a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.” Clingman, 544 U.S. at 587 (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997)). When reviewing state regulation of primary elections, the Court has repeatedly upheld “‘reasonable, politically neutral regulations that have the effect of channeling expressive activity at the polls.’” Washington State Grange, 552 U.S. at 452 (quoting Burdick, 504 U.S. at 438).

            A further concern about protecting associational rights in the context of regulating primaries (as opposed to the general election) is that the regulations might burden a party’s ability to promote and select the nominee of its choice by interfering with internal party decision-making. Clingman, 544 U.S. at 589-90; California Democratic Party, 530 U.S. at 573 (blanket primary interfered with party’s ability to nominate its preferred candidate); Cousins v. Wigoda, 419 U.S. 477 (1975) (state improperly attempted to regulate internal party decision-making). But where parties continue to be “free to canvass the electorate, enroll or exclude potential members, nominate the candidate of its choice, and engage in the same electoral activities,” there is little if any effect on freedom of association. Clingman, 544 U.S. at 587.

            The proposed amendment to Washington elections law conditioning access to the primary ballot imposes minimal, if any, burden on associational rights. It does not attempt to regulate any party’s internal processes, as parties are not required to use the presidential primary to select their nominees. See RCW 29A.56.010. Beyond this issue, the analysis of other constitutional restrictions that we applied above to the proposed amendment to Washington elections law conditioning access to the November election ballot applies equally to the condition for appearing on the primary ballot.

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3.         May Washington State’s elections laws be amended to prohibit the Secretary of State from accepting a certificate with the names and addresses of presidential electors chosen by a political party or convention if the presidential or vice presidential candidate nominated by that party did not release their federal tax returns in the 12 months prior to receiving the nomination?

            For the reasons explained above, conditioning acceptance of a party’s slate of electors by the Secretary of State on whether the party’s nominee has disclosed his or her federal tax return likely would fall within the State’s Presidential Elections Clause power. Such a requirement would have virtually the same effect as the proposed ballot access restrictions considered above. For this reason, the analysis that we have applied above to the proposed amendment to Washington State’s elections laws conditioning access to the November election ballot applies equally here. We conclude similarly that this proposal likely would not violate the Constitution.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

 

NOAH PURCELL
Solicitor General


[1] In addition to yourself, the following Senators signed the letter requesting this opinion: The Honorable John McCoy, the Honorable Sam Hunt, the Honorable Patty Kuderer, the Honorable Christine Rolfes, the Honorable Jamie Pedersen, the Honorable Rebecca Saldaña, the Honorable Guy Palumbo, the Honorable Mark Mullet, the Honorable Lisa Wellman, the Honorable Kevin Ranker, the Honorable Annette Cleveland, the Honorable Karen Keiser, the Honorable Jeannie Darneille, and the Honorable Reuven Carlyle.

[2] We have revised your original questions to be specific as to the category of information disclosure at issue. The primary concern in your original questions appeared to be disclosure of personal tax returns of presidential and vice-presidential candidates. We focus on that. Without such specificity, we would be unable to assess the extent to which the proposed requirement supported the state interest intended to justify it. We also removed references to existing statutes because, as a matter of policy, the Attorney General’s Office does not opine on the constitutionality of existing statutes.

[3] See, e.g., Storer v. Brown, 415 U.S. 724 (1974) (upholding “disaffiliation” ballot access restriction on candidates for congressional office and remanding to assess burden placed by State’s signature-gathering requirements on minor party presidential candidates); Munro v. Socialist Workers Party, 479 U.S. 189 (1986) (upholding ballot access restriction on candidates for congressional office); Burdick v. Takushi, 504 U.S. 428 (1992) (upholding prohibition on write-in candidates).

[4] See, e.g., Libertarian Party of Illinois v. Rednour, 108 F.3d 768 (7th Cir. 1997) (upholding ballot access restriction on candidates for congressional office); Cartwright v. Barnes, 304 F.3d 1138 (11th Cir. 2002) (upholding ballot access restriction on candidates for congressional office); Biener v. Calio, 361 F.3d 206 (3d Cir. 2004) (upholding ballot access restriction on candidates for congressional office); Nat’l Comm. of the U.S. Taxpayers Party v. Garza, 924 F. Supp. 71 (W.D. Tex. 1996) (upholding ballot access restriction on candidates for president).

[5] Congress determines when electors are chosen and the day on which they give their votes, McPherson, 146 U.S. at 35; U.S. Const. art. II, § 1, cl. 4, “but otherwise the power and jurisdiction of the state is exclusive.” McPherson, 146 U.S. at 35.

[6] Nat’l Pub. Radio, Domenico Montanaro, 3 Reasons We Care About Politicians’ Taxes (Aug. 12, 2016), http://www.npr.org/2016/08/12/489791576/3-reasons-we-care-about-politici....

[7] Eric T. Tollar, Playing the Trump Card: The Perils of Encroachment Resulting from Ballot Restrictions, 51 Suffolk U. L. Rev. 695, 700-01 (2018); see also Lovitky v. Trump, 308 F. Supp. 3d 250, 252 (D.D.C. 2018) (describing how the Ethics in Government Act applies to presidential candidates).

[8] David Siders, Jerry Brown vetoes bill to pry loose Trump’s tax returns, Politico, Oct. 16, 2017, https://www.politico.com/story/2017/10/16/jerry-brown-trump-tax-returns-....

[9] Douglas Jehl & Sam Fulwood, Clinton Tax Attack on Brown Bommerangs, L.A. Times, Dec. 2, 2012, http://articles.latimes.com/1992-03-29/news/mn-483_1_release-of-tax-returns.

[10] The amendment required that the statement “DISREGARDED VOTERS’ INSTRUCTION ON TERM LIMITS” be printed on all primary and general ballots adjacent to the name of a Senator or Representative who failed to support term limits. And that the statement “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS” be printed on all primary and general election ballots next to the name of every non-incumbent congressional candidate who refused to take a “Term Limit” pledge. Cook, 531 U.S. at 514-15.

[11] See, e.g., Josh Gurstein, Hillary releases 8 years of tax returns, Politico, July 31, 2015, https://www.politico.com/story/2015/07/hillary-clinton-releases-eight-ye... (“[Hillary Clinton’s] returns do show some financial tactics that could draw criticism.”).

[12] This legitimate interest was not enough to justify the restriction in Anderson. But that is because the restriction was not evenhanded. It fell “unequally on new or small political parties or on independent candidates . . . . It discriminates against these candidates and—of particular importance—against those voters whose political preferences lie outside the existing political parties.” Anderson, 460 U.S. at 793-94.