Liias, 031219 WAAGO, AGO 2019-2
| Case Date | March 12, 2019 |
| Court | Washington |
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 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 did not offend in that way. Id. at 834.[3] And lower federal courts after Term Limits have continued to uphold ballot access restrictions.[
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