Candidate Disclosure and Ballot Access Bills: Novel Questions on Voting and Disclosure

Abstract

For nearly a half century prior to the current administration, U.S. presidents and most serious candidates for the presidency have released their tax returns for public inspection. The practice of presidential tax disclosure serves several key functions. It provides the public with important insights into the president’s or presidential candidate’s potential conflicts of interest, particularly with respect to personal conflicts of interest related to reform of the tax system. It also instills public confidence in the honesty, integrity, and transparency of a presidential administration. Yet, despite repeated calls throughout the 2016 election cycle and since his election and inauguration, from advocates and ordinary citizens alike, and sustained public support for disclosure, President Donald Trump has not released his tax returns. President Trump’s refusal to comply with this well-established norm has exposed a gap in our regulation of presidential elections.

Legislators in at least twenty-three states have released at least forty bills seeking to force presidential candidate tax return transparency. These laws would hinge access to the state presidential ballot on voluntary disclosure. Ballot access laws requiring presidential candidate disclosure, even in just a few states, would reinforce the disclosure norm and leave future candidates in the position of abandoning entire states (and thus harming their popular vote totals) in order to evade transparency.

This Essay addresses whether these state ballot access measures pass constitutional muster and concludes that they do. These ballot access measures are not unlawful additional substantive qualifications for the presidency but rather procedural requirements akin to other state laws requiring the filing of petition signatures or filing fees. The Essay further posits that several key drafting choices would strengthen their likelihood of success in the nearly inevitable court challenges they would face. While several academics and practitioners have opined recently about this issue in the public sphere, there has not yet been any robust legal analysis of these proposals, which raise novel questions at the intersection of disclosure and ballot access law. This Essay begins to fill that gap.