Kanye West, federalism, and party disaffiliation statutes in presidential elections: Idaho edition

Last week, I noted that an Arizona trial court, in my view, got a party disaffiliation requirement wrong in the Kanye West ballot access case. Mr. West may be a registered Republican in Wyoming, but he is not a member of any recognized political party in Arizona. When the Arizona Supreme Court affirmed the trial court’s judgment, it did so on a different ground.

There’s a similar challenge in Idaho now. Idaho Code § 34-708A provides, "Such declarations must state that such persons are offering themselves as independent candidates and must declare that they have no political party affiliation." But a “political party” is defined specifically under Idaho law. For instance, "Upon certification by the secretary of state that the petition has met the requirements of this act such party shall, under the party name chosen, have all the rights of a political party whose ticket shall have been on the ballot at the preceding general election." The Republican Party of Wyoming has no such rights in the State of Idaho.

Again, this isn’t a mere technicality. It’s simply that presidential candidates look different because they’re crossing state lines. John Anderson might be a registered Republican in Illinois but could run as an independent candidate in the general election. George Wallace might be a registered Democrat in Alabama but run under the banner of the “American Independent Party.” The Democratic-Farm-Labor Party is unique to Minnesota for Democratic presidential candidates; the U.S. Taxpayers Party is unique to Michigan for the Constitution Party’s candidates. And fusion tickets in state like New York might result in unusual translation of voter registration across states. In a state like Idaho, the only way for the Green Party candidate to get on the ballot is via the independent route—because the Green Party is not recognized in Idaho.

To the extent Mr. West’s petition has other problems, those might well be good reasons to exclude him from the ballot. But on this measure, it’s not.

Kanye West, Arizona, federalism, and party disaffiliation statutes in presidential elections

I haven’t weighed in much on the Kanye West presidential run since mid-July because, well, I haven’t much of legal interest to write. There have been some typical ballot access issues and some petitioning challenges. He’s gotten ballot access in a few places but not most others, and he’s been kicked off the ballot in several places. He’s not running a “serious” campaign, as I indicated in July. And so I haven’t spent much effort thinking about it.

But the challenge in Arizona to Mr. West’s candidacy piqued my interest, because a district court got the law, in my view, quite wrong.

Arizona law provides under Section 16-341, “Any qualified elector who is not a registered member of a political party that is recognized pursuant to this title may be nominated as a candidate for public office otherwise than by primary election or by party committee pursuant to this section.” (Emphasis added.) Mr. West is apparently a registered Republican in Wyoming. Plaintiffs sought to exclude Mr. West from the ballot by arguing that he sought ballot access through a nonpartisan route, which is forbidden if he’s a Republican. The district court agreed, saying that the “most sensible reading” of the statute is that Mr. West is a Republican.

But when we register to vote and affiliate with a political party, we do not affiliate with a “national” party. We affiliate with a state party. In Arizona, there is a Republican Party, recognized under Arizona law, with its headquarters in Arizona. But Mr. West is registered with the Republican Party of Wyoming, not of Arizona. Wyoming’s Republican Party is not recognized under Arizona law.

True, the Republican Party of Arizona holds a presidential nominating primary to send delegates to the Republican National Convention. And true, this November, the Republican Party of Arizona, like the other Republican Parties throughout the country, will name Donald Trump and Mike Pence as their presidential ticket. But how the state parties affiliate with the national apparatus is a different question.

Maybe this seems too cute by half, but it’s a testament to how presidential elections just look different. For instance, Minnesota doesn’t have a “Democratic Party.” It has a Democratic-Farmer-Labor Party, but it’s affiliated with the national Democratic Party and participates in the Democratic National Convention.

We might want a disaffiliation statute if you’re an Arizona Republican running for an nonpartisan slot for, say, Congress or the state legislature. The Supreme Court in Storer v. Brown upheld such a requirement to protect the interests of the political party from sham candidacies or party raiding. But for presidential tickets, however, we’d need more express statutory clarity—at least, I think so, and my reading of the statute, I think, is the more persuasive view.

Puzzles when crossing state lines in election contests is hardly a novel problem. In 2015 in Arizona, for instance, a court threw out a criminal conviction for someone accused of voting twice, once in Arizona and once in Colorado. The court noted that the defendant hadn’t voted twice under the statute—the statute applied to Arizona elections, not other states’ elections.

It might be too late for an appellate court to correct this misunderstanding of state law. I don’t know whether Mr. West would appeal, or if there are other bases for throwing out his petition. But it’s simply to point out, I think, that disaffiliation statutes simply look different in presidential elections with out-of-state candidates.

UPDATE: On September 8, the Arizona Supreme Court affirmed the exclusion of Mr. West from the ballot, but not on this basis, which is good news. That said, it does appear that the Court used a novel rule previously inapplicable to other candidates, which may be its own problem….

Weaponizing the ballot: voters sue to keep candidate off ballot for unpaid campaign finance fines

Richard Winger over at Ballot Access News has the details about a lawsuit filed in federal court challenging a candidate’s appearance on the ballot. Brenda Jones, a former member of Congress, is challenging incumbent Rashida Tlaib in the Democratic Party primary in a congressional district in Michigan. Plaintiffs in this lawsuit claim Ms. Jones falsely attested that she had no unpaid campaign finance fines, when she apparently did.

In Weaponizing the Ballot, I emphasize that even fairly light restrictions on a candidate’s ballot access that do not pertain to the “manner” of holding an election—that is, procedural rules pertaining to an election—would run afoul of the Constitution’s enumerated qualifications for federal office and exceed a state’s power under the Elections Clause. The claim holds here, in my view—the lawsuit should fail, and Ms. Jones (whose name already appears on the ballot—plaintiffs ask that votes cast for her not be counted) should be able to seek office unencumbered by the Michigan statute.

Barriers facing a Kanye West 2020 presidential run

It’s hard to know how seriously to take a tweet from Kanye West. On July 4, he tweeted, “I am running for president of the United States!” Sadly, “journalists” from outlets like Reuters and ABC News chose not to investigate and simply engaged in the embarrassing contemporary practice of reciting a tweet as if it’s news, without, say, you know, engaging in journalism (e.g., investigating, interviewing relevant parties, reporting, etc.).

I doubt it’s serious, but for the good reason that even if it’s earnest, it’s still probably not serious. Ballot access remains a real issue for a presidential candidate at this late date. Mr. West would have two viable paths.

The first is to co-opt an existing political party’s presidential nomination. It seems unlikely the Democratic or Republican Parties would do so, nor the Libertarian Party, which formally has a nominee. Other parties like the Green Party, Constitution Party, or Reform Party are at various stages of their nominating process, and they’re unlikely to appear on the ballot in all fifty states and D.C. I suppose it’s possible, but this process seems unlikely.

The second is to run as an independent candidate. (A related path would be to establish a new political party, but this is more complicated and something I’ll dismiss for the moment.) This requires the Herculean effort of securing ballot access in all fifty states and D.C. One doesn’t need to get on the ballot everywhere to win the presidency—in theory, access in 270 electoral votes’ worth of states is enough. But, to be frank, there’s a material difference, in my view, between serious independent candidates like John Anderson in 1980 and Ross Perot in 1992, and unserious independent candidates like Lyndon LaRouche in several elections and Evan McMullin in 2016—breadth of a campaign to every (or nearly every) state lends seriousness to the ticket. And while write-in candidates should not be easily dismissed in local or even statewide elections, presidential candidates seem hard to take seriously.

(It’s worth noting that while I’ve seen the claim that Mr. West’s name could be written-in “anywhere,” that’s not true—at least, not written in and counted anywhere. Several states do not recognize write-in votes for the president, which the Supreme Court has acknowledged is legitimate if ballot access rules otherwise are not too onerous. Indeed, think how a presidential election works—one isn’t casting votes for the president, but for a slate of electors who’ll cast votes for that candidate when the Electoral College meets. A write-in campaign ought, I think, to require, at the very least, some pre-election filing of the slate of electors who’ll support that candidate, given that the ballots in most states don’t list the electors. And frankly, several states don’t have rules about even this while purporting to authorize write-in presidential votes.)

The ballot access deadline has (in theory—more on that in a moment) already passed in Texas, Indiana, Maine, New Mexico, New York, and North Carolina. Other ballot access deadlines arise in the next couple of weeks for some states. Off the top, Mr. West would be hard to take seriously, even if, today, he had amassed an army of signature-gatherers to canvass the remaining states (and challenges for signature-collection seem exacerbated during a pandemic). Some of these efforts seem tough at this stage—like Florida’s 132,000 signature requirement by July 15.

In theory, for two reasons. I borrow deadlines from Ballotpedia, and maybe they’re not all up to date. But that’s in part because many states have been pushing back their ballot access deadlines by legislative rule or executive order due to the coronavirus pandemic. Some have lowered signature requirements, and there have been rumbling about moving to online signatures in places. States like New York have shown willingness to be more generous. It’s possible, then, that pending or apparently-passed deadlines may not have yet actually passed.

Another is that Mr. West could litigate, a la John Anderson in 1980. Federal courts have been using flabby balancing tests to justify giving independent or minor party candidates additional opportunities to secure ballot access when the rules are too restrictive—and courts seem increasingly willing to do so during the coronavirus pandemic. Nevertheless, winning several kinds of challenges in different federal courts (absent Supreme Court intervention), all ahead of Election Day, seems not only to require extraordinary legal coordination and preparation (something a tweet on running a campaign seems to lack), but also extraordinary levels of success. UPDATE July 6: The Fourth Circuit has recently affirmed North Carolina’s exceedingly early March 3 independent presidential candidate petition deadline.

I’m sure some will speculate about which major party candidate Mr. West’s candidacy would most affect, whether his appearance on the ballot in certain states but not others might alter the Electoral College, and so on. My point is rather this—it’s hard to take a candidacy announced this late terribly seriously because, to be a serious candidate, one ought to appear on the bulk of ballots in the United States, and candidates announcing at this late date have little chance of doing so.

It’s also true, of course, that even an unserious candidate like Messrs. LaRouche and McMullin could disrupt a presidential election—playing a “spoiler” role in select states, and so on. That’s different than how I’m using the term “serious,” but, of course, I recognize that this may be the greater concern for many political watchers.

This post has been updated as new information arises.

UPDATE July 7: As of early July 7, there is no indication of any attempt by Mr. West to gather signatures in any states, which suggests, as this opening paragraph provided, that a tweet is not newsworthy.

UPDATE July 8: This free-wheeling interview at Forbes shows a couple of things. First, while he coins the name “Birthday Party,” his bid would assuredly be an independent one, and the “party” affiliation would be informal, at least for 2020. Second, Forbes reports, “For much of the phone calls, his core message, strategically, was that he has 30 days to make a final decision about running for president. At that point, he says, he’d miss the filing deadline for most states, though he believes an argument could be made to get onto any ballots he’s missed, citing coronavirus issues.” This reflects a seriousness I hadn’t anticipated—as I explained earlier, some ballot access deadlines might be feasible to make up given the coronavirus. But, 30 days as a “final decision” suggests that he’s not trying to get on the ballot today, which, as I noted in my July 7 update, seems strange and hard to justify. While coronavirus issues can help him make up some ground in some states, the more state deadlines slip away, the harder it is to meet them. Starting a run in early August—that is, starting signature-gathering then—would not be feasible.

UPDATE July 14: Ben Jacobs reports that there were some fits and starts of an attempt at ballot access in at least Florida and South Carolina, but it appears those have ended.

UPDATE July 15: Mr. West has filed an independent candidate statement in Oklahoma with a slate of electors.

2020 proving a quiet year (so far) for "natural born citizen" legal challenges

On the heels of conspiracy theory-driven questions about the birthplace of Barack Obama and legal questions about the birthplace of John McCain in the 2008 (and, for Mr. Obama, the 2012) election, there was a surge in “natural born citizen” litigation in the 2016 presidential election. I’ve advocated for amending the Constitution to simplify these inquiries, a tall order but one consistent, I think, with the often-marginal claims advanced and deep confusion concerning the constitutional phrase.

I thought we might see another surge of litigation in 2020. Some of the Democratic candidates whose qualifications might be challenged have dropped out, but no challenges were ever raised (that I saw). And one candidate, Tulsi Gabbard, born in American Samoa to citizen parents, has seen no challenges (again, that I’ve seen) raised. (I think Ms. Gabbard is likely eligible to serve as President, largely for reasons I think Mr. McCain was.)

Challenges sometimes happen in state administrative proceedings to ascertain whether ballot access is appropriate; it may also happen in state or federal court. But I haven’t seen any such challenges.

It may be that Ms. Gabbard hasn’t attracted the attention of the “birther” movement that kept its momentum from 2012 into 2016. Maybe her eligibility is less a target than someone like Ted Cruz in 2016, born in Canada to a citizen parent and a non-citizen parent; or maybe her rather marginal polling has kept her from litigation.

Regardless, I thought it was worth noting that despite my worries that we’d continue to see a rash of "natural born citizen-related litigation, this cycle has been fairly quiet (so far!). Instead, it’s simply left to the electoral process to sort it out—which is my preference, anyway.

California's presidential tax return disclosure requirement may not take effect for 2020

On September 19, a federal judge announced from the bench that he would enjoin enforcement of California’s law that requires presidential candidates to disclose their tax returns as a condition of securing ballot access in the presidential primary. He announced he would issue a written order by October 1, which he did (with a later amendment to that order October 2).

California announced it would appeal the ruling, but it has dragged its feet in doing so. The notice of appeal was filed October 8. The matter (five consolidated matters, really) was docketed before the Ninth Circuit on October 10. The clerk of the Ninth Circuit announced its briefing deadline, which extends as late as December 24 for the reply brief. Oral argument would likely be after that, and a ruling issued after that. UPDATE: The California Supreme Court is also hearing oral argument on a state-law claim on November 4.

Presidential candidates who intend to secure ballot access must circulate petitions between November 4 and December 13. The California Secretary of State plans to announce all “generally recognized” presidential primary candidates, pursuant to the state constitution, by December 26.

California moved up its presidential primary to March 3, 2020, which means that it has this exceedingly early ballot access deadline. It has to print ballots to begin delivery to overseas and military voters on January 3, 2020.

There appears to be no urgency or movement to try to resolve this case ahead of the ballot access deadline, in which case the preliminary injunction would remain in effect for the 2020 primary. (Later events might change that, of course.)

To the extent this law is targeting President Donald Trump in particular, the law will have no effect on any effort to secure his tax returns—unless, I suppose, he lost the election in 2020 and ran again in the primaries in 2024, or the Twenty-Second Amendment was repealed to abolish presidential term limits.

It’s also reason why I focus on the broader portrait in Weaponizing the Ballot on states’ power over ballot access rules. Tax return disclosure requirements targeting Mr. Trump in particular may be the primary political lens through which we view the validity of such laws. But these laws, if enacted, would affect a far broader pool of candidates and extend far longer than the 2020 election. It’s worth reflecting upon that if the law is enjoined ahead of the 2020 primaries.

Federal judge finds tax return disclosure requirement for ballot access cases violates Elections Clause, First Amendment, and Equal Protection Clause

A federal court in California issued its order (PDF) after enjoining California’s tax disclosure requirement for presidential candidates. Earlier, I noted the court suggested that California’s statute was preempted by the Ethics in Government Act. The court did make that finding. But the court also found it unconstitutional on three other bases.

First, the statute runs afoul of the Elections Clause, meaning California lacked the power to add this rule as a condition of ballot access. (This is the argument I make in Weaponizing the Ballot.) It relies on Term Limits v. Thornton and Cook v. Gralike, in addition to a Ninth Circuit opinion Schaefer v. Townsend that struck down a voter registration requirement as a condition of ballot access.

Second, the court concluded it burdened the associational interests of candidates, voters, and political parties under the First Amendment. The court concluded the burden was “severe” because it was a “functional bar” on candidates who refused to disclose tax returns, a “severe” burden that the state failed to justify.

Third, the court held that it violated the Equal Protection Clause by “distinguishing among constitutionally eligible candidates,”—that’s because general-election independent candidates would not need to disclose their tax returns, but primary candidates would.

In short, the court found four separate reasons why the law failed. We’ll see what happens as this case proceeds to the Ninth Circuit—given that time is precious as the ballot petition period begins in a matter of weeks, and given that the California Supreme Court is considering an independent challenge, we’ll see what choices the parties and the courts make moving forward.

Federal judge blocks enforcement of tax return disclosure requirement in presidential primaries

Earlier this year, California enacted SB 27, which requires presidential candidates to disclose 5 years’ tax returns as a condition of appearing on the state’s presidential preference primary ballot. For reasons I outline in Weaponizing the Ballot, I think such a law exceeds the state’s authority to regulate the “manner” of holding elections.

There are many alternative reasons, of course, why such a law might fail. A federal judge enjoined the law today and announced his decision from the bench in a set of five consolidated challenges to the law. The reasons will come by October 1. But it’s worth noting a take from early news reports:

Morrison spent much of the court proceeding on the question of whether a longstanding federal financial disclosure law preempts any additional rules that a state could impose.

The federal law, known as the Ethics In Government Act, or EIGA, was originally passed in 1978 and applies to a range of top federal officials. Trump has filed the annual report, most recently in May, which provides an overview of his finances.

“Do we even need to get here if EIGA preempts [the new California law]?,” England asked attorneys for the state. “Is that it?”

That is, rather than address the tough constitutional questions, the judge may well avoid them (at least, as best he can!) and conclude that California’s law is preempted by federal statute.

To summarize from my piece Weaponizing the Ballot, here’s what federal law currently requires (footnote omitted):

Prominently, Congress passed the Ethics in Government Act of 1978, which requires disclosures of financial information of certain government officials to the public. Within thirty days of assuming office, the President and Vice-President must file financial disclosures about their sources of income, payments to charitable organizations, property they hold, debts they owe, and more. The President and Vice-President continue to file these reports annually, including identifying gifts, reimbursements, sale of property and stocks, the cash value of any blind trust, and other disclosures for spouses and dependent children. In 2012, Congress added to some of these disclosures and required that these disclosures must be made available on the Internet. While disclosures are published for the President and Vice-President, reports for most other government official require a specific request. Certain information might be kept confidential for lower level officials or if the information might compromise the national interest of the United States.

Presidential and congressional candidates also must file similar statements within thirty days of declaring as a candidate. Federal law also requires disclosure of certain activities of campaigns, including disclosure of contributions to the campaign and expenditures from the campaign.

You can view current disclosures of the president and vice president here.

UPDATE: I’m told the express preemption language from the original EIGA has been repealed in 1989, so I’ve removed that block quotation.

UPDATE: Current law provides, “The provisions of this title requiring the reporting of information shall supersede any general requirement under any other provision of law or regulation with respect to the reporting of information required for purposes of preventing conflicts of interest or apparent conflicts of interest,” but this provision does not expressly mention state law.

It’ll be worth seeing all the reasons the court articulates for enjoining the law, and, of course, what happens on appeal. But it’s also worth noting that while it avoids the constitutional questions, it also avoids answering questions in the event states require other disclosures—say, medical records or school transcripts—as a condition of ballot access.

New draft posted on SSRN: "Weaponizing the Ballot"

I’ve just posted a draft of an article, Weaponizing the Ballot, on SSRN here. From the abstract:

States are considering legislation that would exclude presidential candidates from appearing on the ballot if they fail to disclose their tax returns. These proposals exceed the state’s power under the Elections Clause and the Presidential Electors Clause. States have no power to add qualifications to presidential or congressional candidates. But states do have constitutional authority to regulate the manner of holding elections and to direct the manner of appointing presidential electors. Manner regulations that relate to the ballot are those that affect the integrity and reliability of the electoral process itself or that require a preliminary showing of substantial support. In other words, they are procedural rules to help voters choose their preferred candidate. Tax disclosure requirements are not procedural election rules, which means they fall outside the scope of the state’s constitutional authority to administer federal elections and are unconstitutional.

And from the introduction:

This Article makes three principal contributions to help understand the scope of state authority to regulate access to the ballot in federal elections. First, while states may not add qualifications to candidates seeking federal office, this Article finds that “manner” regulations may at times legitimately affect the ability of candidates to win office. Second, this Article defines the constitutional scope of “manner” rules as election process rules, and it synthesizes alternative judicial formulations of state power over the “manner” of holding elections as variations of this definition. Third, this Articles applies this definition to proposals that compel disclosure of information as a condition of ballot access—applied here to tax returns, but applicable to other disclosures like medical records or school transcripts—and finds that they exceed the state’s power to regulate the manner of holding elections.

I’m pleased to share this major work, which builds off ideas I floated in a New York Times op-ed many months ago, and which builds off my scholarship thinking about state control over ballot rules generally and review of qualifications of candidates for federal office.