Could California Appeal Today’s California Supreme Court Ruling on Presidential Candidate Tax Return Disclosure To SCOTUS? Maybe, Under Cases Arising Out of the 2000 Bush v. Gore Race

I was in meetings for much of the day and just got around to reading the California Supreme Court’s unanimous decision (with one concurring Justice writing separately) in Patterson v. Padilla. The state high court holds that it violates a provision of the state constitution (requiring “recognized” presidential candidates to appear on the primary ballot) to require disclosure of the candidate’s tax return before inclusion on the ballot.

Because this is a holding under the state constitution, this would ordinarily be the end of the line. One cannot appeal a question about the scope of the state constitution to the United States Supreme Court.

But I was reminded in reading this opinion of the U.S. Supreme Court’s decision in Bush v. Palm Beach County Canvassing Board and the concurring opinion of Chief Justice Rehnquist in Bush v. Gore. In a nutshell, the Constitution’s Article II gives the state legislature very broad right to set the rules for presidential elections. In the Palm Beach County case, the Supreme Court unanimously suggested that a Florida supreme court determination that a rule for recounts was mandated by the state of Florida’s constitution would violate Article II. Under the independent state legislature doctrine (see this thorough piece by Hayward Smith), the state legislature gets to trump even the state constitution under Article II when it comes to setting the rules for choosing presidential electors. The Bush v. Gore concurrence offered a similar theory.

To be clear: I’ve never bought this theory and think it is dangerous. I also think the tax return provision passed by the California legislature is deeply problematic because of the race to the bottom it could cause. But it is something that is intriguing to think about. (I also don’t know if such an argument was waived if not raised earlier.)

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