Illinois is in the process of trying to pass a law which says any candidate for president must publicly release the last five years of their federal tax returns if that want a spot on the ballot. Illinois is not alone, 17 other states are considering similar measures.
Is this legal/constitutional? It is not that I disagree with them in this case but it seems crazy if there ends up being a mish-mosh of 50 different states each with their own criteria for who is allowed on a ballot for US president in their state.
The constitution, as I recall, is pretty vague in its wording about how the states run their elections. As I recall states are given the right to run elections as they see fit but congress is allowed to regulate it through legislation.
So it’s possible that Illinois could pass such a law and congress could try to override it. Good luck with that override, though.
I’ll admit that I only scanned this article, but it seems that it hasn’t been tested for constitutionality in a court, so there’s no legal precedent one way or the other.
Long story short, Illinois can do what at least 25 other states have done and give it a go and see if it holds up in court.
No state has done it yet. A number of states are in the process of voting on it.
Concerning constitutionality, the closest precedent is US Term Limits v. Thornton, and the reasoning within that opinion IMO makes it very unlikely that the Court would sustain effective disqualification of presidential candidates by a state or states. Thornton concerned members of Congress, and the Court found (a) that states have no power to add to the qualifications for service in Congress enumerated in the United States Constitution; and (b) that disguising such qualifications as a ballot access requirement was a distinction without a difference. I see no reason why the same logic wouldn’t apply to the Presidency.
In the unlikely event that such laws are upheld, be aware that other restrictions imposed by other states will follow, and members of this Board may find them less congenial, such as denial of ballot access to candidates “who fail to respect the sanctity of human life” or candidates who refuse to sign a pledge to enforce immigration laws. Be careful what you wish for; you might get it.
Ain’t that the truth! “Presidential elections” are essentially simply a convention that has grown up over the years; they’re not really spelled out anywhere in the U.S. Constitution. Now, in some countries (like the U.K.) “a convention that has grown up over the years” can effectively become part of “the constitution”; since the United States has a written constitution we in theory don’t do that sort of thing.
It goes on to discuss how these Electors, duly “appointed” by the states, should vote; those procedures have in turn been modified by the Twelfth Amendment, but the [essential lack of] rules for how the states “appoint” Electors weren’t changed. (I’m going to go all 18th century and capitalize “Electors” in this post to distinguish them from “people who vote in an election” AKA “voters”.)
The Twenty-fourth Amendment does refer in passing to “primary or other election for President or Vice President” and to elections “for [E]lectors for President or Vice President”. In reality, the idea of states “appointing” their Electors in any way other than by a democratic election is nowadays a complete non-starter. The idea that Electors should not be “faithless” is also now deeply entrenched; that is, Electors should essentially be automatons, simply reflecting the preference of the people who voted for them (essentially none of whom did more than push the button or punch the chad next to “Donald J. Trump” or “Hillary Rodham Clinton”, or at most “the slate of Electors who are pledged to vote for Donald J. Trump” or “the slate of Electors who are pledged to vote for Hillary Rodham Clinton”).
But, in the original language about “Electors”, which has never been formally superseded, the Electors themselves elect the President. Period. By the original language of the Constitution, they could elect anybody who meets the fairly minimal qualifications of being “a natural born citizen”, at least 35 years old, and a resident within the U.S. for fourteen years. By the actual language of the Constitution, the Electors could just go and pick someone none of us has ever heard of, completely of their own accord:
(Of course the “Electoral College” never actually meets as a body; all three or fifty-five of them from that state meet together in their particular state capital, not all 538 of them from all over the country. But I guess they could e-mail each other, or Skype, or something.)
Similarly, the Constitution is completely silent about how the states “appoint” Electors. The state legislatures could choose them–originally that was often the case–but there doesn’t seem to be any reason why a state couldn’t go all Ancient Greece and appoint Electors by sortition, sort of like jury duty:
I don’t even see that there are any requirements that Electors themselves be citizens. Or that they be old enough to vote. A state could appoint a bunch of middle school kids and let them have a field trip. Or a state could appoint “illegal aliens” (or “undocumented immigrants”)–hey, I guess selecting the President of the United States is just one of those jobs Americans don’t want to do.
It’s a great idea, and like many a great idea it would make for a very stupid law. Surely unconstitutional and I’d expect the vote to be 9-0 to void all such state laws.
I tend to agree, but what adds a monkey wrench into the thought is that (as you know) nobody actually runs for president. The name of the presidential candidate on the ballot is a substitute for “slate of electors pledged to vote for this person.” The Electors themselves are the actual candidates.
The only qualifications for elector are: 1) not a member of Congress and 2) not holding any office of profit or trust under the United States.
By requiring that in order to be on the ballot for election to be elector, the states require that I be selected as a member of a declared candidate’s slate of electors and that I pledge my vote for that candidate. I cannot, in my state, nor to my knowledge any other, get on the ballot in any way, either by filing fee or petition, to be an undeclared elector.
Hasn’t the state thus unconstitutionally added a requirement to be an elector? If not, then why couldn’t a state say, “An elector must pledge not to vote for someone who has not released tax returns.”