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withdrawn by filing an affidavit of noncandidacy.”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 ...