California Supreme Court unanimously finds presidential tax return disclosure requirement violates state constitution

A federal district court already found that California’s new law requiring presidential primary candidates to disclose their tax returns as a condition of ballot access violated several provisions of the United States Constitution. The case is being appealed to the Ninth Circuit, and there was little rush to have the law take effect for 2020.

Now, the California Supreme Court has weighed in with a unanimous decision finding that the state constitution precludes the tax disclosure requirement, too. The California Constitution includes a provision enacted by initiative that requires “recognized” candidates to appear on the primary ballot; this tax return disclosure requirement, the court reasoned, exceeded the legislature’s power. (Justice Mariano-Florentino Cuéllar wrote a brief concurring opinion to indicate his concerns about corruption.)

While my recent draft article emphasized only one facet of these ballot access disputes—whether such conditions are legitimate “manner” restrictions or whether they exceed the state’s power under the Elections Clause and Presidential Electors Clause—I noted that state constitutional law might be an alternative basis for these claims. And here’s one such example.

What might a constitutional amendment capping the age of the President look like?

I recently published an op-ed in the Wall Street Journal suggesting that we should consider a constitutional amendment capping the age of the president.

Undoubtedly, the decision to amend the Constitution is significant, and the decision to do so by limiting voters’ choices even more so. The Constitution does limit our choices for president, however—there’s an age minimum of 35, the natural born citizen requirement, and the 14-year residency requirement. The 22d Amendment was enacted to forbid candidates who have served two terms (or 10 years’ service) from taking office—even though the people had just elected Franklin Delano Roosevelt to four terms.

But if voters lack adequate information about candidates’ health (as I argue in the piece), and health-related risks increase significantly with age, we may want to cap the age of the president.

Here’s a proposal for a constitutional amendment:

Section 1. No person shall be elected to the office of the President who shall have attained to the age of seventy-five years on the date on which the term of office begins.

In the opinion piece, I offer 70, 75, and 80 as possible benchmarks. I like 75 for a few reasons. First, Ronald Reagan was elected at 69, reelected at 73, and left office at 77. Like a two-term limit patterned after George Washington, an age-related requirement closely mirroring Mr. Reagan has a nice practical background. At 75, it’s a number that nicely mirrors 35. (Okay, so I’m too into the aesthetics….) Finally, it requires a president to leave office before turning 80, which starts to feel (?) like an upper bound.

The amendment is patterned off language in Article II and the 22d Amendment. It would allow a 70-year-old to seek two consecutive terms of office, and a 74-year-old to seek one.

It uses the word “elected,” which means, I think, that a vice president could be older, or someone from the cabinet who ascends to the office of president could be older. It simply means those individuals could not be “elected” to the office of President. And it fixes the date of age at the time the term of office begins.

Of course, such a hard number is going to be overinclusive and underinclusive. But if it’s a matter of risk tolerance, it strikes me that this is a pretty good marker.

Some might point to the extremely short life expectancy at the Founding, but I think those figures are deceptive. Life expectancy was short because of infant mortality. If you made it to the age of 21, your life expectancy, particularly among the upper class, was not much shorter than today. Indeed, among our first several presidents, most died late in life—Mr. Washington at 67, John Adams at 73, Thomas Jefferson at 83, James Madison at 85, James Monroe at 73, and John Quincy Adams at 80.

The requirement would undoubtedly alter how presidential campaigns would run. Candidates would recognize that they have a “window,” one that might “close” if they wait too long. But I think having two generations to seek the office of president is a sufficiently long window for most candidates.

I think the office of President is unique because it is a single-headed executive. It might be, of course, that we have concerns about other federal positions. So here are some proposals to add to this amendment.

Section 2. No person shall be elected to Congress who shall have attained to the age of eighty years.

Section 3. No person shall hold the office of judge of the supreme or inferior courts who has attained to the age of eighty-five years. Any judge holding that office who has attained to the age of eighty-five years shall no longer hold that office.

Section 2 would cap the age of members of Congress. It would serve as a soft term limit—much better than the deeply restrictive suggestions proposed recently of things like two- or three-year limits. In the Senate, a person could be elected at 79 and end the term at 85. In the House, it would be 79 and 81.

Right now, there are just two senators over the age of 85 (Dianne Feinstein and Chuck Grassley) and three others over the age of 80. In the House, there are 9 representatives over the age of 80—some elected as far back as 1973, the most recent elected in 1999. It would effectively offer rotation for some members of the House. It also allows a governor to appoint an over-eighty Senator if a vacancy occurs, consistent with the 17th Amendment—that Senator simply couldn’t be elected. It also reduces vacancies that arise from death given that very senior members would not be serving in Congress.

On the federal judiciary side, many federal judges already go “senior” at the age of 65 or so anyway. It would simply pull those—and all other—judges out of active service at the age of 85, which is fairly late in a career anyway. There are concerns that occasionally arise about the age of district court judges in particular, which this amendment would address. It would also compel retirements of Supreme Court justices upon turning 85 (two current justices are over that age). It might lead to younger-than-ever Supreme Court nominees, or strategic timing of retirements… but let’s face it, those are already occurring.

I’m sure many might quibble or wonder about these precise contours. Or maybe you’ve identified weaknesses I haven’t considered. But these are, I think, worth considering.

In today's WSJ: "No Country for Old Presidents"

In today's Wall Street Journal, I have an opinion piece entitled, “No Country for Old Presidents.” It begins:

Should there be an upper age limit on the presidency? Former New York Mayor Michael Bloomberg, 77, may join a crowded and aging field of candidates. Last month Bernie Sanders, 78, was hospitalized with what the campaign called “chest discomfort” and turned out to be a heart attack. In September 2016, Hillary Clinton, then 68, was privately diagnosed with pneumonia. The campaign concealed the diagnosis until she was caught on camera fainting from dehydration.

Mental health is another concern. “Gaffes” on the campaign trail drive observers to wonder whether the slip-ups reflect a candidate’s age and are a sign of some greater health concern. Voters have no way of knowing.

It concludes:

The Constitution sets a minimum age of 35 to serve as president. Maybe it should be amended to set an upper age limit at 70, 75 or 80. Like the 22nd Amendment limiting presidential terms, such an amendment shouldn’t take effect immediately, lest it affect the outcome of the 2020 race. But it’s worth having a conversation about age for future presidential candidates before an age-related crisis strikes a president.

I’ll have more about what a constitutional amendment might look like soon.

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.

Sexual misconduct, Senate precedent, and the Expulsion Clause

I recently wrote a piece at Law & Liberty on the Senate's power to expel Roy Moore in the event he wins the Alabama Senate special election. He has been accused of sexual misconduct, and calls for him to resign have not been heeded. Some have wondered about whether the Senate might refuse to seat him; I explain in the piece why that is inconsistent with the constitutional understanding set forth in Powell v. McCormack.

But what about the power to expel a member once seated? The Constitution says this:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

I explain in the piece that there are few contours to the power to expel, except that it must occur by a two-thirds vote. That's mostly a procedural check, and the substance has largely been left to the Senate to flesh out. (Professor Brian Kalt shares similar thoughts in a Wall Street Journal opinion.)

I identify a couple of precedents that would limit the Senate's power to expel Mr. Moore. First, the Senate has typically wondered whether it has the power to expel members for conduct that arose prior to the candidate taking office. (Some earlier debates actually focused on whether it had to arise during that existing term in office and not from a preceding term, but recent Senate investigations have moved away from that view.) Second, the Senate has generally refused to expel a member for conduct known to the voters at the time of the election, the notion being that it's not for the Senate to expel a member with such baggange sent by the voters.

The Senate has not expelled a member since the Civil War, but it has investigated members who resigned before facing an expulsion vote, like Senator Bob Packwood in 1995.

New allegations have arise in recent weeks. Representative John Conyers and Senator Al Franken have been accused of sexual misconduct, and campaigns arose to urge their resignations.

Mr. Conyers heeded such calls this week and resigned, rather than face an ethics investigation and, perhaps, subsequent expulsion vote. His conduct arose during his terms in office (as he has been in the House for several decades).

Mr. Franken is facing new calls from a number of his fellow Senators to resign. Some allegations of his sexual misconduct arose from events prior to taking office, but certainly were not widely known to voters. He is also facing an ethics investigation.

It is worth noting how the rather underdefined precedents shaping Congress's practices under the Expulsion Clause may be experiencing a rather significant change right before our eyes. Ethics investigations and calls for resignation for (at least some) conduct arising prior to taking office suggest that a good number of Senators would apply the Clause in a way that the Senate has been reluctant to do in the past.

This is not to say that this is a wrong view, just to say that the Senate is, as is within its authority, deciding the proper scope of its authority under the Clause. It may be using informal means, like social media campaigns, political calls for resignations, and political party threats (perhaps offering primary challengers, withholding campaign funding, or revoking committee assignments), in ways that do not impact the Expulsion Clause.

But in the event Mr. Moore is seated, and the Senate begins to look at these recent precedents involving allegations of sexual misconduct prior to a candidate taking office, it may be moving toward a new understanding of its own power under the Clause.

That may not be the case, of course. Expulsion is an understandably extraordinary remedy, requiring significant consensus, and we have seen the Senate bluster recently and fail to carry through. These other tools at the disposal of the parties and the Senate may make the Senate reluctant to carry through with expulsion of Mr. Franken (if he does not resign in the next several hours) or Mr. Moore (if he is elected). But it is worth considering how recent weeks may be shaping, before our very eyes, a renewed attention to the Senate reconsidering its past practices and reinvigorating the Expulsion Clause.

Virgin Islands Supreme Court embroiled in another candidate qualifications disputes

A few year ago, I blogged about a rather extraordinary series of cases from the Virgin Islands concerning candidate qualifications. A candidate previously convicted of tax evasion was kept off the ballot by the Virgin Islands Supreme Court. A federal court ordered otherwise. The Virgin Islands Supreme Court ignored it.

A similar dispute has arisen recently. Kevin Rodriquez was elected to the legislature, but some claimed he was not a three-year resident of the Virgin Islands, which meant that he could not serve in the legislature. After litigation, the Virgin Islands Supreme Court ordered that he not be seated. The Third Circuit last week reversed. In doing so, it approvingly cited the power of the Board of Elections to judge qualifications before the election (a dubious proposition, as my earlier posts have noted).

The Vermont Supreme Court oral argument in Cruz and Rubio "natural born citizen" litigation

You may have long forgotten about the "natural born citizen" litigation in the 2016 presidential election, which I chronicled this spring. One can be forgiven, because, as hot as the topic was, Ted Cruz dropped out of the race, most cases disappeared, and little has been thought about the matter (much less about the even more tenuous and rare litigation surrounding Marco Rubio). My forthcoming Fordham Law Review piece chronicles the procedural paths these cases took, urging courts to exercise caution before needlessly plunging into disputes that the political process could readily solve, or areas where the state legislature failed to give them express jurisdiction.

Procedure took center stage in Vermont.

The plaintiff, H. Brooke Paige, was one of the first to file a claim challenging Messrs. Cruz's and Rubio's status as "natural born citizens." Mr. Paige filed pro se and sued both candidates and the state of Vermont. The case was dismissed. Mr. Paige appealed, again pro se. And the Vermont Supreme Court scheduled 30 minutes of oral argument for November 30, 2016. Messrs. Cruz and Rubio waived the opportunity to appear at oral argument. The oral argument has been uploaded.

The Vermont Supreme Court did care about procedural matters and asked Mr. Paige almost exclusively about those procedural points. First, as neither Messrs. Cruz nor Rubio were on the general election ballot, one justice wondered whether the dispute was moot--but Mr. Paige emphasized they were on the primary ballot. (Later analogies to abortion mootness exceptions arose.)

Another justice asked that the Constitution has a requirement as to who can serve as president; but does that extend the same as to who can run for president? Mr. Paige identified them as the same standard.

As to standing, Mr. Paige claimed he sought ballot access in Vermont.

The government opened with a mootness claim, which the Court challenged, but the government answered that while mootness could be an issue in election cases, it was not a problem in this case, where the plaintiff was responsible for many of the delays.

The government then noted the speculative future of the claim and the breadth of citizenship claims that might need to be raised. When the court later noted that its previous mootness case included the fact that Barack Obama was ineligible for another election, the government tried to raise the greater speculative nature of the political process. But the court pressed back that "capable of repetition yet evading review" inherently speculate about the future.

The court also mused that this exception often refers to the plaintiff's injury, as in the case with abortion cases; but, the court noted, if he has standing, what are the odds the plaintiff would face an election against someone born to foreign-born parents? That, the court said, might be a different case, as it seemed quite likely Mr. Paige would run again and face someone in that citizenship posture. But, another justice pressed back that it seemed like an advisory opinion, as it would be conditioned on "if" Mr. Rubio or someone else ran for office.

The court then asked about standing--a statute says that an election may be contested by any voter in the process. The government described the standing as something ministerial, such as the conduct of the election itself; or to matters like voter intimidation. But those are about the validity of the election, the government said, and the statute does not extend to challenges about qualifications.

The government moved back to the questions of Mr. Paige as a candidate challenging Messrs. Cruz and Rubio and argued that he was not truly a competitor in the election, such that he did not have standing.

The court started to worry about competitor standing--suppose Mr. Obama ran for governor in Vermont as a resident of Illinois? The government conceded that his general election opponent might have standing in that case.

All in all, the court muddled through a series of standing, mootness, and statutory issues, with virtually no time spent on the merits. It's unlikely we'll see any surprises... but only time will tell.

"Natural Born" Disputes in the 2016 Presidential Election

I've posted a draft of a new article, "Natural Born" Disputes in the 2016 Presidential Election, forthcoming in the Fordham Law Review. Here is the abstract:

The 2016 presidential election brought forth new disputes concerning the definition of a "natural born citizen." The most significant challenges surrounded the eligibility of Senator Ted Cruz, born in Canada to a Cuban father and an American mother. Administrative challenges and litigation in court revealed deficiencies in the procedures for handling such disputes. This paper exhaustively examines these challenges and identifies three significant complications arising out of these disputes.

First, agencies tasked with administering elections and reviewing challenges to candidate eligibility often construed their own jurisdiction broadly, but good reasons exist for construing such jurisdiction narrowly given ample political and legal opportunities to review candidates' qualifications. while litigation in federal court usually led to swift dismissal on a procedural ground, challenges in state proceedings sometimes led to broad—and incorrect—pronouncements about the power to scrutinize the eligibility of presidential candidates. Third, decision makers repeatedly mused about how useful it would be if the Supreme Court offered a clear definition of a "natural born citizen." This suggests that executive and judicial actors are uncomfortable with non-federal judicial resolution of a constitutional claim like this one.

Finally, this Article offers a recommendation. After three consecutive presidential election cycles with time-consuming and costly litigation, it may well be time to amend the Constitution and abolish the natural born citizen requirement. Amending the Constitution is admittedly no simple task. But perhaps an uncontroversial amendment would find broad support in order to avoid delays and legal challenges seen in recent presidential primaries and elections.

New Jersey administrative law judge perpetuates "natural born citizen" procedural errors

Today, a New Jersey administrative law judge found that Ted Cruz was eligible to appear on the New Jersey ballot because he is a "natural born citizen." (PDF of the opinion) In doing so, he made many of the same procedural errors raised in Pennsylvania, and he perpetuated errors in New Jersey about the proper authority to review such disputes.

First, the judge confused justiciability questions with the power of certain bodies to review qualifications. That is, while the Electoral College or Congress may have the power to review the qualifications of a presidential candidate, that is a distinction question from whether they have the sole power to review qualifications to the exclusion of a federal court such that the claim is nonjusticiable. In conflating these questions, the judge incorrectly described the roles of these bodies--just as the court in Pennsylvania did.

First, the judge said that the Electoral College "is not vested with the power to determine the eligibility of the Presidential candidate since it is only charged to select the candidate for each office and transmit its votes to the 'seat of government.'" What else does the power to "select" include if not the power to decide whether a candidate is eligibility? As I've mentioned, many electors refused to cast votes for Horace Greeley upon his death in 1876, because they believed he was no longer eligible for the office.

The judge goes on to note that Congress has "no power over this process," but it fails to cite to the Twentieth Amendment, which does give congress power to count ballots; its precedent in 1876 in refusing to count votes for Horace Greeley; and its practice in 2008 of endorsing that Senator McCain was, indeed, a "natural born citizen," presumably speaking in anticipation of its review of electoral votes.

These do not answer the question of whether there is a textually demonstrable commitment that these bodies decide the matter; indeed, I think the question is justiciable for a court. But it is different than saying these bodies lack power. As I mentioned earlier, New Jersey law does not contemplate that state courts or election administrators should weigh in on such matters.

Additionally, the judge never identifies what New Jersey law empowers it, or the Secretary of State, to scrutinize federal qualifications of presidential candidates. He generically refers to the fact that the Secretary must rule on the "validity" of objections to petitions, citing N.J.S.A. 19:13-11. But to assume that "validity" includes the power to decide whether a candidate meets the qualifications of the Constitution is another step, indeed.

While the court reached the result on the merits that I tend to agree with, these missteps in procedure are troublesome. They incentivize litigants to bring challenges when no law empowers election officials to scrutinize qualifications, and they diminish the role of other bodies in scrutinizing qualifications. Perhaps the Secretary of State will modify the opinion on review.