By: Erik Gerstner
While the 2016 Presidential election was especially notable for a number of reasons, one of the major recurring issues throughout the campaign was the outright refusal of Donald Trump to follow tradition and release previous tax returns to the public, despite calls from observers, both partisan and neutral, that he do so. In the wake of the election, at least 26 states began considering laws requiring presidential candidates to disclose their tax returns in various ways. Among these is Massachusetts, whose legislature is currently considering a bill requiring any candidates wanting their name to appear on a Massachusetts primary ballot to provide the state secretary with a certified copy of their three most recent federal income tax returns.
Meanwhile, as this bill continues its way through the legislative process, Massachusetts voters may have a more direct path toward enshrining such a proposal into law. Among the proposed ballot measures for 2018 is one with a similar proposal to the above bill: any presidential or vice presidential candidates seeking to appear on primary or general election ballots in the Commonwealth must first provide tax returns from the previous six years in order to be eligible. Although there remain considerable hurdles before the proposed measure appears on the 2018 ballot, it has been certified by Attorney General Maura Healy to comply with the Massachusetts Constitution, and will be circulated for signatures from Massachusetts voters, 64,750 of which must sign it in order for it to continue through the process.
Nevertheless, underlying these potential new laws, both in Massachusetts and elsewhere, is the question of constitutionality. Conservative commentators have opined that they are not, because they impose additional, extraconstitutional qualifications upon candidates for the office, which were ruled unconstitutional in 1995. On the other hand, notable legal scholars have weighed in on the opposite side, arguing that disclosing tax returns is not a substantive barrier to any individual wishing to run for President, and is a fairly minor process, which would be imposed due to legitimate state interests in fair and transparent elections. Noted election law scholar Richard Hasen has come down somewhere in the middle of the issue, pointing out that the text of Article II of the Constitution could favor either side upon a legal challenge (which would almost certainly happen very quickly) and would simply depend on which judges happen to hear the cases. The key point, he says, is that “the tax return gambit is not a slam dunk.”
Hasen also brings up another point: if courts accept an argument that there is no inherent right to vote for a President at all, and states may limit the candidates presented to voters, then this opens an entirely different field of inquiry: what else could states do to limit voters’ access and influence in elections? He suggests that highly partisan Republican states could retaliate by simply requiring state electors to only vote for Republican candidates, and that this too might be constitutional under the previous logic. Would, and should, an extreme endpoint like this be something Massachusetts lawmakers and voters be willing to risk? In the present highly uncertain political climate, it is anybody’s guess as to what the end result of this political gamesmanship will be.