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[Copyrighted Material Omitted]
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COUNSEL
[4');">451
P.3d 1172');">2] [2');">254');">4 Cal.Rptr.3d 817');">2');">254');">4 Cal.Rptr.3d 817] 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.
Page 2');">22');">23
[2');">254');">4
Cal.Rptr.3d 818] 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 [4');">451 P.3d 1173');">4');">451 P.3d 1173] 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 2');">26,
2');">2019 statutory deadline for candidates to disclose their tax
returns to appear on the March 3, 2');">202');">20 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)
[2');">254');">4 Cal.Rptr.3d 819');">2');">254');">4 Cal.Rptr.3d 819] assert that article II, section 5(c)
Page 2');">22');">24');">4
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');">4, 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 [4');">451 P.3d
1174');">4] 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');">2 ballot measure, Proposition
4');">4. As the history of Proposition 4');">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.
Page 2');">22');">25
Elections Code sections 6883 and 6884');">4 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 [2');">254');">4
Cal.Rptr.3d 82');">20] 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 (2');">2019-2');">202');">20 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. 2');">27
The
Assembly and the Senate passed the Act in July 2');">2019 as Senate
Bill No. 2');">27 (2');">2019-2');">202');">20 Reg. Sess.) (Senate Bill No. 2');">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 2');">202');">20 primary election."
(Stats. 2');">2019, ch. 12');">21, � 3.)[2');">2" name=
"ftn.FN2');">2" id="ftn.FN2');">2">2');">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
Page 2');">22');">26
Secretary of State. (Elec. Code, � � 6883-6884');">4, 8902');">2-8903.)
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
...." ( [4');">451 P.3d 1175');">4');">451 P.3d 1175] 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');">4,
subd. (a)(1).) The candidate also must file with the
Secretary of [2');">254');">4 Cal.Rptr.3d 82');">21');">2');">254');">4 Cal.Rptr.3d 82');">21] 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');">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');">4, 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');">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');">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
Page 2');">22');">27
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');">2.
Legislative History
The
analyses prepared in connection with the Legislature’s
consideration of Senate Bill No. 2');">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.
[2');">2;] 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 2');">2016, only
one candidate, President Gerald Ford in 1976, did not do so.
Ford released a summary of his return instead. [2');">2;] [4');">451 P.3d
1176] During the 2');">2016 campaign for U.S. President, Donald
Trump broke with this longstanding tradition and refused to
release his tax returns. Though prompted [2');">254');">4 Cal.Rptr.3d
82');">22');">2] 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.
2');">27 (2');">2019-2');">202');">20 Reg. Sess.) as amended June 2');">27, 2');">2019, pp.
4');">4-5.)[4');">4" name="ftn.FN4');">4" id=
"ftn.FN4');">4">4');">4]
Page 2');">22');">28
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. 2');">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. 2');">27, supra, p. 12');">2, fn.
15.)[6]
The
analysis prepared for the Senate Judiciary Committee
recognized that Senate Bill No. 14');">49 (2');">2017-2');">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 2');">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. 2');">27,
supra, at p. 14');">4.) The committee analysis
acknowledged that "[t]here is, in fact, some precedent
for this [that is, conditioning ballot access upon some
disclosure by a [2');">254');">4 Cal.Rptr.3d 82');">23');">2');">254');">4 Cal.Rptr.3d 82');">23] presidential
candidate]. In 2');">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
Page 2');">22');">29
Conference of State Legislatures, 14');">4 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 [4');">451 P.3d 1177');">4');">451 P.3d 1177] 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, � � 604');">41, 634');">40, subd. (a), 652');">20, subd. (a), 672');">20,
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');">4 was approved by the voters. (See Elec. Code,
former � 6010, added by Stats. 1975, ch. 104');">48, � 2');">2, p. 2');">24');">468;
Elec. Code, former � 62');">210, added by Stats. 1975, ch. 1056, �
3, p. 2');">2509; Elec. Code, former � 6110, added by Stats. 1975,
ch. 1060, � 3, p. 2');">2569; Elec. Code, former � 6310, added by
Stats. 1974');">4, ch. 1184');">4, � 2');">2, p. 2');">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');">4, as
amended" (Elec. Code, � 604');">41); with regard to the
Republican Party, "generally advocated for or recognized
throughout the United States or
Page 2');">230
California as a candidate for the nomination of the
Republican Party for President of the United States"
(id ., � 634');">40, 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 ., � 652');">20, subd. (a)); with regard to the Peace
and Freedom Party, "generally advocated [2');">254');">4 Cal.Rptr.3d
82');">24');">4] 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., �
672');">20); and, with regard to the Green Party, "generally
advocated for or recognized throughout the ...