The Supreme Court of California ordered the Secretary of State to show cause why the emergency writ of mandate to block SB 27 requested by the California Republican Party (CRP) and its chair Jessica Patterson should not be granted. The court asked attorneys from both sides to brief on a 1972 ballot measure, which added the “recognized” candidates, discussed below.

The timeline set forth by the court closes out briefings the week of September 16, so don’t anticipate a ruling before then. The federal Eastern District of California is scheduled for a hearing that Thursday, September 19 at 2pm.

I’ve written extensively that I believe that SB 27 violates the Qualifications Clause of Article II, Section 1 ¶5 and the First and Fourteenth Amendments of the United States Constitution. I between thinking of otter jokes yesterday, I read the CRP lawsuit and the state’s response to it. I do not expect a Supreme Court of California to grant the CRP’s motion for writ of mandate because of the language of Article II, Section 5(c) of the state constitution, which provides:

“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of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of noncandidacy.”

I believe the Eastern District will throw out SB 27 solely on the Qualifications Clause and withhold opening the stickier First and Fourteenth Amendments. Qualifications Clause is a once-in-four-years issue that rarely comes into legal play–age 35, natural born citizen, and resident of the United States in the 14 preceding years.

Here is the Qualifications Clause:

“No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.”

Some people argue that the fact that state Secretaries of State have the authority to decide who is a “recognized” national candidate and can require signatures (or fees) shows that states can add items to the Qualifications Clause.

However, in law we talk about procedural and substantive rights, usually in Due Process analysis. I would put the items in the preceding paragraph in the category of procedural. In contrast, tax returns are substantive. Indeed, active candidates for President (and Veep and Congress) are required to file a financial interest disclosure under 5 U.S.C. app. § 101(c), which is a substantive requirement, but it’s far less intrusive than disclosure of five years of tax returns that pre-date their candidacies or current conflicts of interest, which is the rationale for the federal requirement.

Failure to comply with the mandated federal financial disclosure is a civil penalty of up to $50,000 should the Attorney General bring a case and a federal court has considered facts (5 U.S.C. app. § 104(a)(1)).

Contrast that federal potential civil penalty with SB 27, which is a bar on appearing on the ballot of the nation’s largest state. That’s a big difference in the constitutional rights of a candidate who otherwise meets the Qualifications Clause. Thus, California seeks to exceed federal statutory law in both substance and penalty/procedure, which I believe the federal courts will find violates the Qualifications Clause.

I do believe POTUS should declare that his “audit” is over and release the damn returns. Journalists can’t wait to go through hundreds of pages of confusing documents.