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From twitter

BREAKING: Maryland is on the verge of passing a law requiring all Presidential candidates to release their past 5 years of tax returns in order to be placed on the election ballot. This means Trump would be required to do so in 2020 if he wants to try & earn Maryland's 10 votes!

Is this likely to hold up in the SCOTUS if it passes? Can states place restrictions on presidential candidacy? Or does ballot access give them a carte blanche to do anything they want?

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None of the answers so far address the actual question, which is whether states can restrict who appears on their ballots. The answer to that is yes. The rules vary by state: in Nevada, a candidate must either be nominated by a recognized political party, or file a petition signed by a percentage of registered voters to run as an independent. Also IIRC someone who lost in the primary of a party can't run as an independent.

There are other qualifications that mostly apply to Senate & House elections (and state offices): the candidate must be a resident of the state, if running as the candidate of a party, must have been a registered voter of that party for some time prior to filing, &c. And all candidates have to file a form (or have it filed for them), and pay a fee. https://ballotpedia.org/Ballot_access_requirements_for_presidential_candidates_in_Nevada

So if the states can impose fairly arbitrary restrictions like the "sore loser"* provision, it doesn't seem impossible that they could also require tax returns. IANAL, though.

*This prevents someone who lost in the primary of a party from being on the ballot as an independent candidate.

  • what is the sore loser prevention – Evan Carroll Oct 31 at 18:15
  • @Evan, from the question "someone who lost in the primary of a party" – MSalters Oct 31 at 18:57
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The election for the president is the Electoral college. You are talking about how a state chooses its electors, and this is a matter for the state.

The people in Maryland get to choose between the various candidates who have qualified to be on the ballot. The winner of the election in Maryland gets to choose who he or she wants to represent Maryland in the electoral college. This is all controlled by State Law. The constitution just requires that states choose electors.

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:

The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

Note that this doesn't even mandate presidential elections. It would be constitutional for the legislature of Maryland to simply ask the Governor to pick 10 people.

The only other appropriate part of the constitution is the 24th amendment

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

However, this is about the right to vote, not the right to stand.

In short, the constitution allows the states wide freedom to run presidential elections in the manner that they see fit. The choice of who appears on the ballot is a matter for Maryland Law. It would be possible to challenge the law in the Court of Appeals of Maryland. But there does not appear to be a breach of the US constitution in asking for tax returns.

  • 3
    I don't think the question is about the choice of electors, but about restricting the choices those electors can make. If they decided to vote for Trump anyway, what would happen? – André Paramés Mar 4 '18 at 23:09
  • That again would be a matter for Maryland state law. Pledge laws are constitutional and allow a state to penalize an elector for voting for a candidate other that that they are pledged to vote for. Maryland has no such law. A faithless elector could vote for Trump. However this question is about who gets on the ballot to choose electors, not about who those electors vote for. Either way, it is a matter for state law. – James K Mar 5 '18 at 0:22
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    You could I supppose put up a 'faithfullly faithless' elector who promises to vote for Trump if you vote for his ballot-proxy. – Duke Bouvier Oct 31 at 0:01
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Speaking as someone who was a voter in Maryland in 2016, Trump did not get our 10 votes to begin with... so yeah.

In terms of the United States Constitution, the only requirements for a President are that the person must be at least 35 years old AND must be a Natural Birth U.S. Citizen (i.e. Born in the United States, or to parents who are U.S. Citizens but were born out of country, or in territory that has since become a part of the United States.). Their tax info has nothing to do with it.

Thus far, no state has passed a similar law (Republicans did write some bills requiring Birth Certificates from candidates during the Obama years that went nowhere). The key here is that the law will not only be challenged in SCOTUS (the very reason the MD Senate didn't pass the bill during 2017) and could open the door to further restrictions in other states.

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I'm surprised no one has mentioned this yet. As of October 2, 2019:

This has been temporarily ruled unconstitutional by a federal judge.

The United States District Court in the Eastern District of California concluded that

The Act’s provisions likely violate the Constitution and the laws of the United States.

The opinion is in fact quite interesting, questioning California's motives:

[...] Nor can it be considered an even-handed restriction to “protect the integrity and reliability of the electoral process itself” or to ensure “orderly, fair, and honest elections” by providing financial information to voters. Term Limits, 514 U.S. at 834. If this was truly the State’s even-handed objective, it presumably would have passed some version of the Act in 1992, when former California Governor Jerry Brown elected not to release his tax returns while running for the Democratic nomination for President. At base, the Act seeks to punish a class of candidates who elect not to comply with disclosing their tax returns by handicapping their access to the electoral process. This is plainly impermissible.

The injunction is preliminary, and it's going to be appealed, but for now, the law is that states cannot cannot place such restrictions on candidates.

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Let's go to the text, specifically the 12th Amendment:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify …

This appears to give the electors freedom to "vote by ballot." A State can certainly control how its electors are chosen. But I think it's an open question whether or not it can put this particular requirement on to how said electors should vote. Requirements that the electors respect the will of the voters have not been overturned. But other requirements (such as requiring that the electors vote for a member of a particular party) would likely not be upheld. This question lies in a middle ground, and I don't think it's easy to predict what the courts might say. They have found a right to privacy in the Constitution, for example; would this violate it? I don't think anyone knows for sure.

Furthermore, even if a State does require its electors to vote a certain way, there have been plenty of examples where the electors have not followed that requirement. In such a case, the text of the Constitution appears to say that the elector's actual vote is what matters:

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted. The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole…

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    You haven't considered the Supremacy Clause. States can't interfere with proceedings of the Federal government. And this is a Federal election. Although states don't technically have to bind the electors to the results of the election, keeping a candidate off a ballot would be an interference with the Federal election. If states could interfere with Federal elections, the blacks in the South never would have gotten a vote. – grovkin Oct 30 at 19:08
  • This doesn't answer the question. The Electoral College has nothing to do with who can be placed on the ballot. At least in the several states I've voted in over my life, the names of Electors do not appear on the ballot, the candidate's name does. The question asks whether states can restrict those names. – jamesqf Oct 31 at 17:16

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