Weaponizing the Ballot

72 Pages Posted: 10 Sep 2019 Last revised: 3 Jun 2021

Date Written: September 9, 2019


State legislatures are considering passing laws that would keep presidential candidates from appearing on the ballot if they fail to disclose their tax returns. These proposals exceed the state’s power under the Elections Clause and the Presidential Electors Clause. States have no power to add qualifications to presidential or congressional candidates. But states do have constitutional authority to regulate the manner of holding elections and to direct the manner of appointing presidential electors. “Manner” regulations that relate to the ballot are those that affect the integrity and reliability of the electoral process itself or that require a preliminary showing of substantial support. In other words, they are procedural rules to help voters choose their preferred candidate. Tax disclosure requirements, like term limits or other substantive ballot access conditions, are not procedural election rules, which means they fall outside the scope of the state’s constitutional authority to administer federal elections and are thus unconstitutional.

Keywords: election law, voting rights, ballot access, tax disclosures, presidential elections, presidential primaries, elections clause, presidential electors clause

JEL Classification: K00, K1, K10, K19, K34, K4, K40

Suggested Citation

Muller, Derek T., Weaponizing the Ballot (September 9, 2019). 48 Florida State University Law Review 61 (2021), Available at SSRN: https://ssrn.com/abstract=3450649 or http://dx.doi.org/10.2139/ssrn.3450649

Derek T. Muller (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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