I want to weigh in on the debate over whether states can constitutionally insist that presidential candidates must make some of their tax returns public in order to get on the ballot. My tentative conclusion is that this would be unlawful under the Equal Protection Clause.
Let’s start with some basic principles. U.S. Term Limits v. Thornton that a state cannot impose upon congressional candidates substantive requirements for ballot access beyond the three that are in Article One of the Constitution. While Article Two’s text on the qualifications for the Presidency parallels the Article One requirements at issue in Thornton, state legislatures have more discretion over presidential elections because they can appoint electors in any manner that does not otherwise violate the Constitution (for example, a state legislature can just directly choose electors without holding any popular election). As a result, when it comes to presidential candidates and tax returns, the issue reduces (in my mind) to whether there is rational basis that connections the mandatory release of a tax return with ballot access.
I think the answer is no. Here are my reasons. First, it’s clear that these proposed statutes are directed at one man–Donald Trump. They will apply to all presidential candidates, but we all know that they might as well be called the “Make it Harder For Donald Trump to be Reelected” Act. This raises a red flag. Second, I have a hard time understanding the link between compulsory tax return release and ballot access. States have many procedural ballot access requirements (get signatures from voters, get them from certain places, pay a fee, etc.), that are, if modest, plausibly related to ether defraying the costs of election administration or establishing whether someone is a viable candidate. Requiring the release of tax returns has nothing to do with these things. What, then, is the rational basis for such a law, especially given that tax return disclosure does implicate privacy rights. (I can’t, for example, get the President’s old tax returns through a FOIA request.)
Will this ever be litigated? I don’t know. Arguably the only states that might enact such a law are the ones that the President has no chance of winning next time. So he might just choose not to release his returns anyway. Or by 2020 his returns might be quite simple (“I earned my salary as President plus some money from passive investments.”) and thus releasing them will be no big deal.