Republicans File Another Suit Against California's Presidential Ballot Access Restriction

On Tuesday, the California Republican Party and its Chairperson, represented by former RNLA President and Board of Governors member Chuck Bell, filed an emergency petition for a writ of mandate in the California Supreme Court, challenging California's new law requiring presidential candidates to disclose their tax returns prior to appearing on California's presidential primary ballot.  As we wrote on Tuesday, this law is a blatantly political maneuver to keep President Trump off the ballot, and a federal lawsuit against it is also pending.

The lawsuit claims that the law unconstitutionally interferes with the Secretary of State’s delegated authority solely to determine what Presidential candidates are placed on the Presidential primary ballot and that he is required to place all nationally recognized candidates on the ballot.  The law cannot restrict a right to an open Presidential primary, which was a reform specifically enacted to counteract corruption in California's primary system.  It also alleges that the effect of keeping the President off the ballot will be to irreparably injure the CAGOP in down-ticket “top two” primary races for all other federal and state offices by suppressing Republican turnout (emphasis added):

Our State Constitution requires the Secretary of State to identify all nationally-known candidates for President of the United States and to place their names on the primary election ballot for nomination by his or her respective political party. In the case of the Democratic Party, that list of candidates in 2020 may be a dozen or more candidates. In the case of the Republican Party, that list might be just one or two candidates. One of those candidates is likely to be the incumbent. Just days ago, a statute was enacted that directly conflicts with the express duty assigned to the Secretary of State in our State Constitution by prohibiting him from placing the name of a legitimate candidate for President on the primary ballot unless and until that candidate provides to the Secretary of State 5 years of personal and confidential income tax returns.

The merits of that policy are not at issue here. What is at issue is that SB 27 clearly violates Article II, section 5(c) of the California Constitution. As indicated more fully below, this provision of our Constitution was proposed by the Legislature and enacted by the voters to guarantee California voters the right to consider all of the candidates seeking election to the highest office in the land. In prior elections, California politicians rigged the primary election, putting up “favorite son” nominees for partisan political advantage. Californians were denied the right to vote on the candidates who were actually running for the office of President. The voters changed that with the enactment of Proposition 4 in 1972 by eliminating the game play and requiring the Secretary of State to place the name of all presidential candidates on the ballot.

SB 27 upends that reform. Not only does SB 27 deny access to the ballot for any legitimate candidate who does not want to provide his unredacted tax return to a state government agency, it may suppress voter turn-out – affecting the elections held at the same time for Congressional and legislative seats. Data proves and studies have shown that voter turn-out in a presidential primary is much larger than in a non-presidential primary and that the “top of the ticket” is an important factor in voter turn-out. Voter turn-out is important to every race on the ballot, not just the “top of the ticket” race.

In California, our state legislative and congressional elections are “top two” elections, whereby the top two vote getters, regardless of party, are advanced to the general election. If Republican turn-out is reduced because the incumbent President’s name is not placed on the ballot, the trickle-down effect of that will reduce the Party’s chance to qualify candidates in the top two primary in many state legislative and congressional districts. Indeed, a cynic might suggest that SB 27 is intended to have that very effect.

The writ asked for in the state lawsuit is discretionary, but the California Supreme Court has already requested a response from the Secretary of State by August 14 and a reply from the petitioners by August 16.  The petition requests relief no later than November 4, 2019.