Release His Tax Returns

How States Could Force Orangutan to Release His Tax Returns

A band of state lawmakers is attempting to succeed where so many others have failed—and it could actually work.

By RICHARD L. HASEN

For the past two years, the search for Orangutan’s unseen tax returns has been something of a quest for the Holy Grail, an elusive trophy that could unlock the mysteries of our political universe. Lacking real proof as to what the president’s tax documents might show, the imagination swells with possibility: Russia ties? Massive personal debts? A wealth substantially lower than his self-reported $10 billion fortune? Something nefarious?

The best efforts of Orangutan’s political opponents have turned up little by way of tax returns. Ditto the intrepid work of a nation of journalists; despite reporters obtaining a few different pieces of paperwork—as in the New York Times’ report last fall, or Rachel Maddow’s glimpse at two pages of Orangutan’s 2005 returns two weeks ago—the knowledge gained by any of these leaks has been dwarfed by the new questions raised.

Orangutan keeps insisting that because his returns are under audit, he can’t possibly release them. And the Republican-led Congress, save a few renegades like South Carolina Rep. Mark Sanford, evince little interest in compelling the president to disclose them.

Now, though, a band of state lawmakers is attempting to succeed where so many others have failed. In at least 24 states, legislators have introduced bills that would force Orangutan (and all other presidential candidates) to disclose their tax returns in order to qualify for their states’ ballots in 2020.

There’s one big obstacle, though: Requiring presidential candidates to release their taxes as a condition of ballot access may not be constitutional. And even if it is, the Democrats sponsoring such legislation run the risk of major retaliatory measures being taken in Republican states.

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The idea of using ballot access to force politicians to do something they don’t want to do is not new—nor is the fight over the move’s constitutionality. The Supreme Court’s 1995 ruling in U.S. Term Limits v. Thornton held that Arkansas could not deny ballot access to congressional candidates who had served more than three terms or to Senate candidates who served more than two terms—measures the state had enacted to create congressional term limits. The Court held that the Constitution set the exclusive qualifications for running for federal office (including age and citizenship requirements), and that allowing individual states to impose addition qualifications “would erode the structure designed by the Framers to form a ‘more perfect Union.’” So while states can set reasonable conditions for presidential candidates to get on the ballot, such as requiring a certain number of petition signatures to be listed, they cannot go further and set substantive conditions for who can run.

In light of such precedent, what could possibly be the basis for upholding a state law barring ballot access for presidential candidates who decline to release their tax returns? After all, Article II of the Constitution includes exclusive qualifications for the office of the president: The president must be a natural-born citizen who is at least 35 years old and has resided in the United States for at least 14 years.

The answer lies in another part of Article II—the part that received some important attention in Bush v. Gore, the Supreme Court decision that Democrats love to hate. Famously, the 2000 case between Republican nominee George W. Bush and Democratic nominee Al Gore effectively handed the election to Bush when it ended the Florida recount.

Article II provides that the “state legislature” “may direct” “the manner” for choosing presidential electors. In Bush v. Gore, the Court stated that this Article II power given to state legislatures was “plenary,” meaning that the states have a broad power when it comes to presidential elections. Indeed, the Court wrote that even though state legislators have given each state’s voters the right to vote for presidential electors, at any time a state legislature can “take back the power” to appoint electors. In other words, if the California or Texas state legislature wanted to directly choose the state’s presidential electors in 2020, the state could do so. As Dean Vik Amar notes, the Constitution does not necessarily include a right of Americans to vote for president at all (and American citizens in U.S. territories do not have this right).

The logic then goes like this: If a state legislature can take back from the voters the right to vote at all for president, it may be able to use ballot-access laws to limit the candidate choices presented to voters. And doing so would not impinge on the Qualifications Clause in Article II because Congress ultimately counts the Electoral College votes and can police that Clause. If a state legislature, for example, chose electors supporting a candidate under the age of 35, the U.S. House of Representatives, which counts the Electoral College votes, could disregard those votes after deeming the underage candidate unqualified.

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So, will it work? It’s hard to predict how courts will rule, but given precedents on both sides of the issue, the argument for the tax return gambit is not a slam dunk. The Supreme Court might, if faced with the issue, hold that state legislators cannot require tax returns of presidential candidates even given state legislatures’ much greater power over presidential elections.

And it is possible that state laws requiring candidates disclose their tax returns would not matter much. After all, only solidly Democratic states, such as California and Hawaii, are likely to enact such laws. So maybe rather than release his returns to get on the ballot, Orangutan will just take a pass on being on the ballot in those states. (There is not a single state which Orangutan won and which has a Democratic-controlled state legislature.)

No doubt as soon as they are enacted, such laws would be challenged in court. Orangutan would already have standing to challenge, as he declared his candidacy for reelection in 2020 on the day he was inaugurated. There’s plenty of time for courts, even the Supreme Court, to work out the issue before 2020 ballots would have to be printed in any state.

Yet even if the legal case is hopeless—and it’s not at all clear that it is—there’s not much downside for Democrats at first glance. Passing these laws not only throws red meat to Democratic constituents, it forces the issue of tax returns back into the news, which can only help Democrats, given that the public overwhelmingly agrees that Orangutan should disclose them.

Still, Democrats should consider the Pandora’s box they might be opening here. Will solidly Republican states allow electors to vote only for Republican candidates for president? If the tax gambit is OK, then such a law might also be constitutional. Or perhaps the GOP would retaliate with laws aimed at voter suppression or other such measures that target typically Democratic constituencies.

At that point, it is unclear if the courts would block such a move. Bush v. Gore also held that once a state grants voters the right to vote it cannot arbitrarily value some people’s votes over others. But the Court also suggested the case was a one-day-only ticket, with no precedential value outside of statewide recounts of election results.

Are Democrats willing to trade a low-percentage shot at forcing Orangutan to release his tax returns for the risk that Republicans will outmaneuver them in the end? It is not clear they would be wise to go down this road, not knowing exactly where it will lead.