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Patterson v. Padilla

Supreme Court of California

November 21, 2019

JESSICA MILLAN PATTERSON et al., Petitioners,
v.
ALEX PADILLA, as Secretary of State, etc., Respondent.

          Bell, McAndrews & Hiltachk, Charles H. Bell, Thomas W. Hiltachk and Terry J. Martin for Petitioners.

          Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Anthony R. Hakl, Jay C. Russell and Chad A. Stegeman, Deputy Attorneys General, for Respondent.

          Boies Schiller Flexner, David Boies, Maxwell V. Pritt and Alexander J. Holtzman for Dean Erwin Chemerinsky as Amicus Curiae on behalf of Respondent.

          OPINION

          CANTIL-SAKAUYE, C. J.

         We must decide in this case whether portions of the recently enacted Presidential Tax Transparency and Accountability Act (Elec. Code, § 6880 et seq.) (the Act) conflict with article II, section 5, subdivision (c) of the California Constitution (article II, section 5(c)) and are therefore invalid. At issue are the Act's provisions that prohibit the Secretary of State from printing on a primary election ballot the name of a candidate for President of the United States who has not filed with the Secretary of State the candidate's federal income tax returns for the five most recent taxable years. Because of the important and time-sensitive nature of this controversy, we have exercised our original jurisdiction to entertain an emergency petition for a writ of mandate that would forbid the Secretary of State from enforcing the pertinent sections of the Act. Upon issuing an order to show cause, we directed the parties to submit briefing on an expedited basis to ensure the matter would be decided ahead of the November 26, 2019 statutory deadline for candidates to disclose their tax returns to appear on the March 3, 2020 primary ballot.[1]

         The dispute before us turns on the interpretation of article II, section 5(c), which states: “The Legislature shall provide for partisan elections for presidential candidates, and political party and party central committees, including an open presidential primary whereby the candidates on the ballot are those found by the Secretary of State to be recognized candidates throughout the nation or throughout California for the office of President of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of noncandidacy.” (Italics added.)

         In requesting a writ of mandate, petitioners Jessica Millan Patterson and the California Republican Party (petitioners) assert that article II, section 5(c) requires a presidential primary in which the names of all “recognized candidates throughout the nation or throughout California for the office of President of the United States” appear on the ballot. Petitioners cast the Act as unconstitutional because it imposes an additional disclosure requirement for appearing on a presidential primary ballot. In petitioners' view, this additional prerequisite undermines the primary process contemplated by article II, section 5(c), and cannot lawfully be enforced.

         Secretary of State Alex Padilla, named as respondent, counters that article II, section 5(c) does not prevent the Legislature from prescribing disclosure prerequisites that even “recognized candidates throughout the nation or throughout California for the office of President of the United States” must satisfy if they are to appear on a presidential primary ballot. In respondent's view, by stating that “[t]he Legislature shall provide for... an open presidential primary, ” article II, section 5(c) confirms that branch's long-recognized, expansive authority to devise reasonable rules for primary elections, including presidential primaries. And subsumed within this power, respondent argues, is the authority to enact neutral disclosure laws that provide relevant information to voters and thus enable the electorate to make a more informed choice among presidential candidates.

         Upon careful consideration of the parties' briefing and arguments, as well as the submission by amicus curiae, we conclude that petitioners are entitled to a writ of mandate. We direct the Secretary of State to refrain from enforcing Elections Code sections 6883 and 6884, the relevant provisions of the Act, insofar as enforcement of these sections would keep the name of a “recognized candidate[] throughout the nation or throughout California for the office of President of the United States” from being printed on the ballot of a political party that has qualified to participate in the primary election.

         As we shall explain, article II, section 5(c) is properly read as including a requirement that all persons found to be “recognized candidates” in the relevant sense must appear on the appropriate primary ballot, except when an affidavit of noncandidacy has been filed. This interpretation reflects the most natural reading of article II, section 5(c), and it vindicates the intent behind this provision. The language within article II, section 5(c) providing for the inclusion of “recognized” candidates on the primary ballot was added to the state Constitution through a June 1972 ballot measure, Proposition 4. As the history of Proposition 4 makes clear, its purpose was to ensure that the voters at future California presidential primary elections would have the opportunity, within each qualifying political party, to choose among a complete array of candidates found to be “recognized candidates throughout the nation or throughout California for the office of President of the United States, ” who had not filed affidavits of noncandidacy to remove themselves from the ballot.

         Elections Code sections 6883 and 6884 purport to make the appearance of a “recognized” candidate for president on a primary ballot contingent on whether the candidate has made the disclosures specified by the Act. This additional requirement, however, is in conflict with the Constitution's specification of an inclusive open presidential primary ballot. The Legislature may well be correct that a presidential candidate's income tax returns could provide California voters with important information. But article II, section 5(c) embeds in the state Constitution the principle that, ultimately, it is the voters who must decide whether the refusal of a “recognized candidate[] throughout the nation or throughout California for the office of President of the United States” to make such information available to the public will have consequences at the ballot box.

         We therefore issue the writ of mandate.

         I. Background

         We begin by describing the Act, and then review analyses of the measure that were prepared while it was still under consideration by the Legislature. We then discuss contemporaneous legislation that was enacted earlier this year as Senate Bill No. 505 (2019-2020 Reg. Sess.) (Senate Bill No. 505). The latter statute is not directly at issue, but it is nevertheless relevant to the dispute before the court. The last portion of this background section will relate the brief history of this writ proceeding.

         A. The Presidential Tax Transparency and Accountability Act

         1. Senate Bill No. 27

         The Assembly and the Senate passed the Act in July 2019 as Senate Bill No. 27 (2019-2020 Reg. Sess.) (Senate Bill No. 27), and the Governor signed the measure into law. As an urgency statute, the Act went into effect immediately “[i]n order to ensure that the protections” it affords “are in place for the 2020 primary election.” (Stats. 2019, ch. 121, § 3.)[2" name= "ftn.FN2" id="ftn.FN2">2]

         The Act directs the Secretary of State not to print on a primary ballot the names of candidates for President of the United States or for Governor of California who have not filed their federal income tax returns with the Secretary of State. (Elec. Code, §§ 6883-6884, 8902-8903.) Because article II, section 5(c) relates only to the presidential primary ballot, only the provisions of the Act relating to candidates for president are implicated in this proceeding.

         Regarding candidates for president, the Act provides, “Notwithstanding any other law, the Secretary of State shall not print the name of a candidate for President of the United States on a primary election ballot, unless the candidate, no less than 98 days before the presidential primary election, files with the Secretary of State copies of every income tax return the candidate filed with the Internal Revenue Service in the five most recent taxable years....” (Elec. Code, § 6883, subd. (a).)[3] The candidate must file with the Secretary of State both unredacted and redacted versions of these returns, removing certain personal information such as social security numbers, home addresses, and medical information from the latter version. (Id., § 6884, subd. (a)(1).) The candidate also must file with the Secretary of State a signed written consent form that grants the Secretary of State permission to make a redacted version of the tax returns publicly available. (Id., subd. (a)(2).)

         Upon receiving the income tax returns, the Secretary of State is to review them to confirm that only the information identified by statute as subject to redaction has been removed. (Elec. Code, § 6884, subd. (b).) If additional redactions have been made to a tax return, “the Secretary of State shall prepare a new version of the tax return with only the redactions permitted by” statute. (Ibid.) Within five days of receiving a candidate's tax returns, the Secretary of State shall make appropriately redacted versions of the returns available to the public on the Secretary's website. (Id., subd. (c)(1), (2).) These versions “shall be continuously posted until the official canvass for the presidential primary election is completed.” (Id., subd. (c)(3); see also id., subd. (c)(4).)

         The Act includes the following findings and declarations regarding the income tax return disclosure requirement for presidential candidates: “The... State of California has a strong interest in ensuring that its voters make informed, educated choices in the voting booth. To this end, the state has mandated that extensive amounts of information be provided to voters, including county and state voter information guides. The Legislature also finds and declares that a Presidential candidate's income tax returns provide voters with essential information regarding the candidate's potential conflicts of interest, business dealings, financial status, and charitable donations. The information in tax returns therefore helps voters to make a more informed decision. The Legislature further finds and declares that as one of the largest centers of economic activity in the world, the State of California has a special interest in the President refraining from corrupt or self-enriching behaviors while in office. The people of California can better estimate the risks of any given Presidential candidate engaging in corruption or the appearance of corruption if they have access to candidates' tax returns. Finally, the State of California has an interest in ensuring that any violations of the Foreign Emoluments Clause of the United States Constitution or statutory prohibitions on behavior such as insider trading are detected and punished. Mandated disclosure of Presidential candidates' tax returns will enable enforcement of the laws against whichever candidate is elected President. The Legislature finds and declares that compliance costs with this requirement will be trivial.” (Elec. Code, § 6881.)

         2. Legislative History

         The analyses prepared in connection with the Legislature's consideration of Senate Bill No. 27 detailed the reasoning behind the measure. A Senate floor analysis explained, “In 1973, the Providence Journal-Bulletin obtained and published data showing that President Richard Nixon had paid an astonishingly low amount in taxes in 1969 given his income for that year. After initially resisting calls for him to do so, Nixon eventually released his taxes and underwent an IRS audit. It turned out he had improperly claimed an exemption of $500, 000 for papers he donated to the National Archives. [¶] Ever since this incident, it has been customary - though never required by law - for U.S. Presidential candidates to release their tax returns. Prior to 2016, only one candidate, President Gerald Ford in 1976, did not do so. Ford released a summary of his return instead. [¶] During the 2016 campaign for U.S. President, Donald Trump broke with this longstanding tradition and refused to release his tax returns. Though prompted by Trump's break with the customary practice, this bill is not retroactive and would only apply to future presidential candidates.” (Sen. Rules Com., Off. of Sen. Floor Analysis, Unfinished Business Analysis of Sen. Bill No. 27 (2019-2020 Reg. Sess.) as amended June 27, 2019, pp. 4-5.)[4" name= "ftn.FN4" id="ftn.FN4">4]

         Several of these analyses also considered constitutional issues that might be implicated by the tax return disclosure requirement.[5] However, these assessments concentrated on whether the disclosure requirement comported with the federal Constitution. The only analysis of Senate Bill No. 27 that mentioned the California Constitution was prepared for the Senate Judiciary Committee, and this evaluation discussed only the right to privacy conferred by the state charter (Cal. Const., art. I, § 1) - not article II, section 5(c). (Sen. Judiciary Com., Analysis of Sen. Bill No. 27, supra, p. 12, fn. 15.)[6]

         The analysis prepared for the Senate Judiciary Committee recognized that Senate Bill No. 149 (2017-2018 Reg. Sess.), a similar proposal that also would have conditioned access to the presidential primary ballot on a candidate's disclosure of federal income tax returns, had been vetoed in 2017 by then-Governor Jerry Brown. The analysis recited a series of rhetorical questions Brown had posed in his veto message: “ ‘Today we require tax returns, but what would be next? Five years of health records? A certified birth certificate? High school report cards? And will these requirements vary depending on which political party is in power? A qualified candidate's ability to appear on the ballot is fundamental to our democratic system. For that reason, I hesitate to start down a road that well might lead to an ever escalating set of differing state requirements for presidential candidates.' ” (Sen. Judiciary Com., Analysis of Sen. Bill No. 27, supra, at p. 14.) The committee analysis acknowledged that “[t]here is, in fact, some precedent for this [that is, conditioning ballot access upon some disclosure by a presidential candidate]. In 2011, for example, the Arizona legislature passed a bill that would have required presidential candidates to submit a birth certificate in order to appear on the state's election ballot. The bill was vetoed by Governor Jan Brewer. According to a senior fellow with the National Conference of State Legislatures, 14 other states considered similar legislation.” (Ibid.) But, the analysis continued, “In response to this line of concern, the authors assert their belief that democratically elected legislatures are equipped to make reasoned assessments about what information is sufficiently important to their constituents to warrant a disclosure requirement and what information is not. If legislators go too far in demanding disclosures of presidential candidates, their fully informed constituents can always elect other representatives who will retract the requirement.” (Id., at p. 15.)

         B. Senate Bill No. 505

         The Governor signed a separate measure, Senate Bill No. 505, into law on the same day he signed the Act. Senate Bill No. 505 codified several criteria to be applied by the Secretary of State in determining who is to be placed on the appropriate presidential primary ballot as (i) a “recognized candidate[] throughout the nation or throughout California for the office of President of the United States” under article II, section 5(c), or (ii) a “generally advocated for or recognized” candidate for that office, in the phrasing of statutes that prescribe rules for the presidential primaries of specific political parties. (Elec. Code, §§ 6041, 6340, subd. (a), 6520, subd. (a), 6720, 6851.)

         Prior to the enactment of Senate Bill No. 505, the only elaboration within the Elections Code of what it means to be a “recognized” candidate for president appeared in the aforementioned statutes, each specifically tailored to an individual party that has qualified to participate in the state primary election. (See Elec. Code, § 5100 [setting forth the criteria for party qualification for the primary election].) The earliest precursors of the current laws to this effect were enacted in the 1970s, shortly after Proposition 4 was approved by the voters. (See Elec. Code, former § 6010, added by Stats. 1975, ch. 1048, § 2, p. 2468; Elec. Code, former § 6210, added by Stats. 1975, ch. 1056, § 3, p. 2509; Elec. Code, former § 6110, added by Stats. 1975, ch. 1060, § 3, p. 2569; Elec. Code, former § 6310, added by Stats. 1974, ch. 1184, § 2, p. 2537.)

         The terms of the current statutes vary somewhat from party to party. They presently provide that a candidate for president is to be placed on the appropriate presidential primary ballot when the Secretary of State finds the person to be, with regard to the Democratic Party, “generally advocated for or recognized throughout the United States or California as actively seeking the nomination of the Democratic Party for President of the United States, ” with the Secretary of State to “include as criteria for selecting [such] candidates the fact of qualifying for funding under the Federal Elections Campaign Act of 1974, as amended” (Elec. Code, § 6041); with regard to the Republican Party, “generally advocated for or recognized throughout the United States or California as a candidate for the nomination of the Republican Party for President of the United States” (id., § 6340, subd. (a)); with regard to the American Independent Party, “generally advocated for or recognized in the news media throughout the United States or California as actively seeking the nomination of the American Independent Party for President of the United States” (id., § 6520, subd. (a)); with regard to the Peace and Freedom Party, “generally advocated for or recognized throughout the United States or California as actively seeking the presidential nomination of the Peace and Freedom Party or the national party with which the Peace and Freedom Party is affiliated” (id., § 6720); and, with regard to the Green Party, “generally advocated for or recognized throughout the United States or California as actively seeking the presidential nomination of the Green Party or the national political party with which the Green Party is affiliated” (id., § 6851).

         The available historical materials indicate that prior to the approval of Senate Bill No. 505, the Secretary of State relied on various criteria or factors in identifying “recognized” or “generally advocated for or recognized” candidates for president. In 1976, then-Secretary of State March Fong Eu explained that in developing an initial list of “active presidential candidates for California, ” she had “taken into consideration a number of factors, including the fact that the persons are announced candidates, appear to be actively campaigning, have qualified for matching federal funds under the 1974 amendments to the Federal Elections Campaign Act, and are slated to appear on other states' primary ballots.” (Sect. of State, News Release, Secretary of State Eu Selects Presidential Candidates (Jan. 30, 1976) p. 1 (hereafter Secretary of State 1976 Presidential Candidate Announcement).) Similar criteria have been articulated by Eu's successors as Secretary of State.[7]

         Senate Bill No. 505 added sections 6000.1 and 6000.2 to the Elections Code. Section 6000.1 sets forth criteria for being identified as a “generally advocated for or recognized” or “recognized” candidate for president. These criteria overlap to some extent with the factors applied by former Secretary of State Eu. (Elec. Code, § 6000.1, subds. (a)-(e).) Section 6000.2 further provides that on or before the 98th day prior to the presidential primary election, a candidate for president is to file a form with the Secretary of State, together with any supporting documentation, establishing that the candidate is a “generally advocated for or recognized” candidate under the standard set forth in section 6000.1. (Id., § 6000.2, subds. (a), (b).)

         With this action, petitioners challenge only the income tax return disclosure requirement for presidential candidates that was adopted through Senate Bill No. 27. Our analysis here therefore need not, and does not, address the constitutionality of Elections Code sections 6000.1 and 6000.2.

         C. Procedural History

         On August 6, 2019, petitioners filed an emergency petition for writ of mandate or other extraordinary or immediate relief with this court. The petition identifies Patterson as “an individual California voter, a registered Republican, and current Chairperson of the Petitioner California Republican Party.” She alleges that she “desires to participate as a voter and to lead her state political party by supporting the inclusion of all qualified Republican Presidential candidates in the open Presidential primary.” The petition for writ of mandate also alleges that Patterson “fears that a large number of Republican voters will be suppressed and discouraged from voting at the primary election as a result of the Secretary of State's implementation of [Senate Bill No. 27], if qualified Republican candidates are excluded from the Republican Party's Presidential primary ballot.” The California Republican Party is identified as “the ballot-qualified statewide political party representing more than 4.7 million registered Republican voters, ” and the petition states that the party and “its adherents participate in the partisan Presidential primary, ” among other electoral contests.

         Petitioners assert that the Act's income tax return disclosure requirement “plainly conflicts with the constitutional provision of [a]rticle II, section 5(c) guaranteeing an open Presidential primary.” They request a writ of mandate that would prohibit respondent “from enforcing Elections Code sections 6883 and 6884... as fundamentally inconsistent and in conflict with [a]rticle II, section 5(c).” Petitioners seek this relief on an emergency basis because the Act's deadline for submission of tax returns to the Secretary of State is November 26, 2019 (98 days before the March 3, 2020 primary election; see Elec. Code, § 6883, subd. (a)), and “the sitting President of the United States who has announced that he is a Presidential candidate for the 2020 election has in the past declined to release his federal tax returns.”

         After requesting and receiving preliminary opposition from respondent, we ordered him to show cause why a writ of mandate should not issue. To ensure the timely disposition of the cause, we directed expedited briefing in which the parties would address, among other subjects, the history of Proposition 4 and related legislation, and any guidelines, including internal measures and protocols, that the Secretary of State has used to determine who are “recognized candidates throughout the nation or throughout California for the office of President of the United States.”

         II. Discussion

         Petitioners and respondent advance divergent constructions of article II, section 5(c), which carry different implications for the constitutionality of Elections Code sections 6883 and 6884.

         As has been explained, petitioners regard article II, section 5(c) as specifying a rule of inclusivity for presidential primary contests that cannot be infringed through legislation such as the Act. According to petitioners, article II, section 5(c) requires all individuals who are found to be “recognized candidates throughout the nation or throughout California for the office of President of the United States” to be named on the appropriate primary ballot, unless an affidavit of noncandidacy is filed. And, their argument continues, even if one assumes that the Legislature may play a role in defining what it means to be “recognized... throughout the nation or throughout California” as a candidate “for the office of President of the United States, ” noncompliance with the Act's disclosure provisions ...


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