Our federal Constitution allows states to create ballot access requirements that ensure that the ballots for every office, including the office of presidential elector, are comprehensible and informative.

A line must of course be drawn between permissible ballot access laws and impermissible attempts to add qualifications to those specified in the federal Constitution. But our research and analysis lead us to conclude that tax return disclosure laws such as the one proposed in California resemble ballot access laws in structure, impact, and purpose much more closely than they resemble laws imposing additional qualifications for presidential office.

As a result, we believe these laws comport fully with the U.S. Constitution.

Unlike prohibited qualifications, these laws do not impose substantive requirements on candidates beyond those imposed by the Constitution itself; that is, these laws do not limit which candidates may run for office based on any particular information in their tax return. Thus, they do not create an insurmountable barrier in advance to any set of individuals otherwise qualified under Article II of our Constitution. Instead, these laws require federally qualified candidates to comply with a relatively minor process of tax disclosure. That is something competing candidates can and should readily do in order to allow voters to make more informed judgments about those contenders' characters or backgrounds.

The answer lies in another part of Article II—the part that received some important attention in Bush v. Gore, the Supreme Court decision that Democrats love to hate. Famously, the 2000 case between Republican nominee George W. Bush and Democratic nominee Al Gore effectively handed the election to Bush when it ended the Florida recount.

Article II provides that the “state legislature” “may direct” “the manner” for choosing presidential electors. In Bush v. Gore, the Court stated that this Article II power given to state legislatures was “plenary,” meaning that the states have a broad power when it comes to presidential elections. Indeed, the Court wrote that even though state legislators have given each state’s voters the right to vote for presidential electors, at any time a state legislature can “take back the power” to appoint electors. In other words, if the California or Texas state legislature wanted to directly choose the state’s presidential electors in 2020, the state could do so. As Dean Vik Amar notes, the Constitution does not necessarily include a right of Americans to vote for president at all (and American citizens in U.S. territories do not have this right).

The logic then goes like this: If a state legislature can take back from the voters the right to vote at all for president, it may be able to use ballot-access laws to limit the candidate choices presented to voters. And doing so would not impinge on the Qualifications Clause in Article II because Congress ultimately counts the Electoral College votes and can police that Clause. If a state legislature, for example, chose electors supporting a candidate under the age of 35, the U.S. House of Representatives, which counts the Electoral College votes, could disregard those votes after deeming the underage candidate unqualified.