Illinois recently joined more than 20 states in considering a measure that would require presidential candidates to release five years of tax returns in order to appear on primary and general election ballots. The bill was approved by the state Senate in April, though it still must pass the Illinois House of Representatives and be signed by the governor to become law. Some of the legislators championing these bills have confirmed that they are in fact aimed at Trump. The sponsor of the Washington bill (which passed the state’s Senate in March) pointed out that Trump’s failure to release his tax returns shattered a presidential norm dating back 40 years.

Norms are worth protecting. There is widespread academic agreement that institutional safeguards are not enough to protect democratic governments, since there is in fact no legal way to prevent those same institutions from becoming tools of power consolidation.[1][2] Instead, norms are responsible for ensuring the institutions are used properly.[2][3][4] Though the norm of releasing tax returns is in no way the most indispensable, the importance of norms in general grants Democrats a certain degree of legitimacy in their push to obtain Trump’s tax returns despite obstinate refusal. But is limiting ballot access the right way to go about protecting democratic norms?

The first step to answering that question is understanding the concept of gatekeeping. The term refers to various tactics whereby mainstream parties can keep populist authoritarian candidates out of power.[4] These tactics can range anywhere from uniting with opposing political parties against anti-democratic candidates to simply leaving those candidates off party ballots.[4] The proposed ballot restrictions can be understood in light of gatekeeping, since they aim to keep candidates violating a longstanding presidential norm off the ballot. Furthemore, future ballot restrictions could potentially be used to enforce other, more central, democratic norms.

Unfortunately, successful gatekeeping often requires some measure of bipartisan support, and the ballot restrictions are no exception.[4] Trump did not carry a single state with a democratic legislature in 2016, and the proposed ballot restrictions have been exclusively advanced by democratic legislatures. So Trump would probably not lose any of his base even if the proposed restrictions took effect, unless Republican lawmakers joined in the effort.

However, the potency of restricting ballot access should not be underestimated, and could conceivably have profound effects on both primaries and general elections of the future. Indeed, democratic governor Jerry Brown, who vetoed the California restriction in 2017, cited the potential for a slippery slope, acknowledging the power that such measures could have. Indeed, ballot restrictions could even be easily placed in such a way as to undermine democracy. For instance, some states might mandate that only the current incumbent’s name be present on the ballot. As is the case with most aspects of federalism, state use of ballot restrictions can advance or hinder the cause of democracy.[2]

This means that, just like most other democratic institutional mechanisms, which can function as either checks on or weapons of authoritarianism, ballot restrictions would need to be used with restraint.[4] Unfortunately, this is particularly difficult during periods of polarization, such as the one currently gripping America.[3][4] If ballot restrictions became a legitimate tool to enforce democratic norms, they could easily be used used instead for all-out partisan warfare, further eroding democratic norms of mutual toleration and institutional restraint. (For instance, a state legislature could pass a law that only Republicans may appear on their ballots.)

Given this, it is perhaps of some comfort that the constitutionality of the restrictions is an open question. Opponents of the measures cite U.S. Term Limits v. Thornton, where the Supreme Court ruled that states could not deny ballot access in such a way as to place substantive limits not found in the Constitution on representatives and senators.[5] However, ballot restriction supporters cite Bush v. Gore, where the Supreme Court ruled that state legislatures have ultimate power in determining the manner of choosing presidential electors.[6] Since legislatures can remove the right to vote for president altogether, the argument goes, surely they can place limits on who can appear on the ballot.

Perhaps the key to unraveling the question lies somewhere else. Indeed, the Court has emphasized across several cases in recent history the importance of political accountability. For example, it recently struck down Obamacare’s Medicaid expansion in National Federation of Independent Business v. Sebelius, ruling that the federal government cannot force states to implement its programs.[7] The idea was that voters angry at the measure might have turned against their state government, rather than recognizing the federal government as the true culprit. Whether the argument is reasonable, a similar rationale could be applied here. If states nominally allow the democratic election of a president while placing certain restrictions on which options are available to voters, subsequently elected presidents might claim a popular mandate they do not in fact possess, with the electorate seemingly accountable for their election.

But what will the Court do if one of the ballot restrictions becomes law? On the one hand, the public overwhelmingly believes Trump’s tax returns should be released, and the Court does have a long history of bowing to popular opinion.[8] On the other hand, the blatant partisanship of the ballot restrictions and the current composition of the Supreme Court is likely to incline them towards striking the restrictions.

Ballot restrictions are a potent institutional check that could potentially provide state lawmakers with opportunities to reach across partisan aisles and unite in gatekeeping. However, they can also be used as weapons for politicians to turn against each other, thus eroding democracy. Given the hyperpolarized nature of American politics today, the best scenario may be for one of these bills to become law, only to be struck down by the Supreme Court. This would hopefully set a strong precedent against opening the sphere of ballot restrictions to all-out partisan warfare.

[1] Ozan Varol, “Stealth Authoritarianism,” Iowa Law Review 100, no. 4 (May 2015): 1673-742.
[2] Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy (Chicago: University of Chicago Press, 2018).
[3] Robert Lieberman, Suzanne Mettler, Thomas Pepinsky, Kenneth Roberts and Richard Valelly, “The Trump Presidency and American Democracy: A Historical and Comparative Analysis,” Perspectives on Politics (October 2018): 1-10.
[4] Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York: Crown Publishing Group, 2018).
[5] U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
[6] Bush v. Gore, 531 U.S. 98 (2000).
[7] National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).
[8] Robert McCloskey, The American Supreme Court (Chicago: University of Chicago Press, 1960).

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