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Federal or state constitutions or statutes may place limits on the number of consecutive (or nonconsecutive) times a candidate may be reelected to the same office. Such term limits are not unknown in American law and politics. Indeed, at times there were various informal norms that certain political offices would be subject to rotation, even without formal term limits. For example, Abraham Lincoln served only one term in the U.S. House of Representatives in the 1840s due to such an informal agreement. Robert Struble, Jr., House Turnover and the Principle of Rotation, 94 POL. SCI. Q. 649 (1979-80) (discussing such norms in the U.S. House of Representatives in the nineteenth century). Until recently, most formal limits were restricted to executive offices. Most famously, the Twenty-Second Amendment to the U.S. Constitution limits Presidents to serving a maximum of two terms. The Amendment was adopted in 1951 after Franklin Roosevelt was elected four times, breaking the informal two-term tradition set by President Washington. Forty states place various term limits on their governors, and thirty-five percent of major cities place term limits on their mayors. Einer Elhauge, Are Term Limits Undemocratic?, 64 U. CHI. L. REV. 83, 87 n.9 (1997). Support for term limits grew and became more controversial in the 1990s, when twenty-four states adopted limits for state legislators and some term-limited their Members of Congress as well. What accounted for the term-limit phenomenon in that decade? Support for term limits has always been supported by the notion that persons continually reelected to the same office unfairly or inappropriately aggrandize political power. Accordingly, the advantages of mandatory rotations are thought by some to outweigh the greater experience and seniority possessed by long-serving representatives, as well as the right of voters to elect whom they want to office. This notion gained particular currency in the past several decades for members of Congress and state legislators, who in that period enjoyed little turnover and high reelection rates. Many argued that limiting legislative terms would lead to, among other things, fewer professional politicians, greater devotion to the public good, less spending, and less capture by interest groups. Opponents of legislative term limits countered that such limits would degrade institutional memory and lead to the capture of less-experienced legislators by interest groups and bureaucrats, who are not effected by term limits. There was a lively popular and academic literature debating these points. E.g., GEORGE F. WILL, RESTORATION: CONGRESS, TERM LIMITS, AND THE RECOVERY OF DELIBERATIVE DEMOCRACY (1992); Elizabeth Garrett, Term Limitations and the Myth of the Citizen-Legislator, 81 CORNELL L. REV. 623 (1996). Inevitably, legal challenges were mounted to the new wave of legislative term limits, as the balance of this Chapter describes. As you consider the legal and policy issues confronting the courts in these challenges, consider also the scholarly literature that has examined the efficacy of the new limits. That literature to date does not provide much comfort for supporters of term limits. For example, some studies show that states with term limits spend more than states without. H. Abbie Erler, Legislative Term Limits and State Spending, 133 PUB. CHOICE 479 (2007) (offering speculations for this counterintuitive result, including that term limits open up
2 the budgetary process in ways that lead to more participation by legislators and interest groups, which leads to more spending). Other studies suggest that term limits have had little effect on the type of people elected to office, but has (at least in the opinion of surveyed legislators) led to some of the ills forecast by critics of term limits, and to increased power of governors vis-à-vis legislatures. John M. Carey, et al., The Effects of Term Limits on State Legislators: A New Survey of the 50 States, 31 LEGIS. STUD. Q. 105 (2006).a One term-limits sympathizer has described the empirical studies of the effects of the limits as a “mixed bag of positives and negatives.” LARRY J. SABATO, A MORE PERFECT CONSTITUTION 51 (2007). To what extent, if at all, should federal and state judges take into account such studies when pondering challenges to term limits?
B. THE CONSTITUTIONALITY OF TERM-LIMITING MEMBERS OF CONGRESS
The Constitution requires that members of the House of Representatives and of the Senate be at least twenty-five and thirty years old, respectively; citizens of the United States for seven and nine years, respectively; and inhabitants of the states from which they are elected. For decades, states have added qualifications, including term limits, to those requirements. Throughout the twentieth century federal and state courts routinely struck down these additional requirements. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 798-800 (1995) [p. XXX] (listing cases). The issue resurfaced in the 1990s and was resolved by the Supreme Court in the next case.
U.S. TERM LIMITS, INC. v. THORNTON
Supreme Court of the United States 514 U.S. 779, 115 S. Ct. 1842, 131 L. Ed. 2d 881 (1995)
JUSTICE STEVENS delivered the opinion of the Court [in which JUSTICE KENNEDY, JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join]. The Constitution sets forth qualifications for membership in the Congress of the United States. Article I, § 2, cl. 2, which applies to the House of Representatives, provides:
“No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”
Article I, § 3, cl. 3, which applies to the Senate, similarly provides:
“No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”
*** At the general election on November 3, 1992, the voters of Arkansas adopted Amendment 73 to their State Constitution. Proposed as a “Term Limitation Amendment,” its preamble stated:
“The people of Arkansas find and declare that elected officials who remain in office too long become
For largely similar conclusions, see Timothy Besley & Anne Case, Does Electoral Accountability Affect Economic Policy Choices? Evidence from Gubernatorial Term Limits, 110 Q. J. Econ. 769 (1995); Bruce E. Cain & Marc A. Levin, Term Limits, 2 Ann. Rev. Pol. Sci. 163 (1999); Eric Lane, The Impact of Term Limits on Lawmaking in New York City, 3 Election L.J. 670 (2004); Edward J. López, Term Limits: Causes and Consequences, 114 Pub. Choice 1 (2003).
preoccupied with reelection and ignore their duties as representatives of the people. Entrenched incumbency has reduced voter participation and has led to an electoral system that is less free, less competitive, and less representative than the system established by the Founding Fathers. Therefore, the people of Arkansas, exercising their reserved powers, herein limit the terms of elected officials.”
The limitations in Amendment 73 apply to three categories of elected officials. * * * Section 3, the provision at issue in these cases, applies to the Arkansas Congressional Delegation. It provides:
“(a) Any person having been elected to three or more terms as a member of the United States House of Representatives from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States House of Representatives from Arkansas. “(b) Any person having been elected to two or more terms as a member of the United States Senate from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States Senate from Arkansas.”
*** [T]he constitutionality of Amendment 73 depends critically on the resolution of two distinct issues. The first is whether the Constitution forbids States to add to or alter the qualifications specifically enumerated in the Constitution. The second is, if the Constitution does so forbid, whether the fact that Amendment 73 is formulated as a ballot access restriction rather than as an outright disqualification is of constitutional significance. Our resolution of these issues draws upon our prior resolution of a related but distinct issue: whether Congress has the power to add to or alter the qualifications of its Members. Twenty-six years ago, in Powell v. McCormack, 395 U.S. 486 (1969), we reviewed the history and text of the Qualifications Clauses in a case involving an attempted exclusion of a duly elected Member of Congress. The principal issue was whether the power granted to each House in Art. I, § 5, cl. 1, to judge the “Qualifications of its own Members” includes the power to impose qualifications other than those set forth in the text of the Constitution. In an opinion by Chief Justice Warren for eight Members of the Court, we held that it does not. * * * We * * * conclude now, as we did in Powell, that history shows that, with respect to Congress, the Framers intended the Constitution to establish fixed qualifications. * * * In Powell, of course, we did not rely solely on an analysis of the historical evidence, but instead complemented that analysis with “an examination of the basic principles of our democratic system.” We noted that allowing Congress to impose additional qualifications would violate that “fundamental principle of our representative democracy . . . ‘that the people should choose whom they please to govern them.’ ” Our opinion made clear that this broad principle incorporated at least two fundamental ideas.10 First, we emphasized the egalitarian concept that the opportunity to be elected was open to all. We noted in particular Madison’s statement in The Federalist [No. 52] that “[u]nder these reasonable limitations [enumerated in the Constitution], the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.” Similarly, we noted that Wilson Carey Nicholas defended the Constitution against the charge that it “violated democratic principles” by arguing: “It has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature. This
The principle also incorporated the more practical concern that reposing the power to adopt qualifications in Congress would lead to a self-perpetuating body to the detriment of the new Republic.
4 Constitution has amply attended to this idea. We find no qualifications required except those of age and residence.” Second, we recognized the critical postulate that sovereignty is vested in the people, and that sovereignty confers on the people the right to choose freely their representatives to the National Government. * * * Thus, in Powell, we agreed * * * “[t]hat the right of the electors to be represented by men of their own choice, was so essential for the preservation of all their other rights, that it ought to be considered as one of the most sacred parts of our constitution.” * * * Our reaffirmation of Powell does not necessarily resolve the specific questions presented in these cases. For petitioners argue that whatever the constitutionality of additional qualifications for membership imposed by Congress, the historical and textual materials discussed in Powell do not support the conclusion that the Constitution prohibits additional qualifications imposed by States. In the absence of such a constitutional prohibition, petitioners argue, the Tenth Amendment and the principle of reserved powers require that States be allowed to add such qualifications. * * * We disagree for two independent reasons. First, we conclude that the power to add qualifications is not within the “original powers” of the States, and thus is not reserved to the States by the Tenth Amendment. Second, even if States possessed some original power in this area, we conclude that the Framers intended the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby “divested” States of any power to add qualifications. * * * Contrary to petitioners’ assertions, the power to add qualifications is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States. Petitioners’ Tenth Amendment argument misconceives the nature of the right at issue because that Amendment could only “reserve” that which existed before. As Justice Story recognized [in his Commentaries on the Constitution of the United States], “the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them. . . . No state can say, that it has reserved, what it never possessed.” * * * With respect to setting qualifications for service in Congress, no such right existed before the Constitution was ratified. * * * [E]lecting representatives to the National Legislature was a new right, arising from the Constitution itself. The Tenth Amendment thus provides no basis for concluding that the States possess reserved power to add qualifications to those that are fixed in the Constitution. Instead, any state power to set the qualifications for membership in Congress must derive not from the reserved powers of state sovereignty, but rather from the delegated powers of national sovereignty. In the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist. Even if we believed that States possessed as part of their original powers some control over congressional qualifications, the text and structure of the Constitution, the relevant historical materials, and, most importantly, the “basic principles of our democratic system” all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution. * * * As we noted earlier, the Powell Court recognized that an egalitarian ideal—that election to the National Legislature should be open to all people of merit—provided a critical foundation for the constitutional structure. This egalitarian theme echoes throughout the constitutional debates. In The Federalist No. 57, for example, Madison wrote:
“Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil
profession is permitted to fetter the judgment or disappoint the inclination of the people.” The Federalist No. 57, at 351 [(C. Rossiter ed. 1961)] (emphasis added).
* * * Additional qualifications pose the same obstacle to open elections whatever their source. The egalitarian ideal, so valued by the Framers, is thus compromised to the same degree by additional qualifications imposed by States as by those imposed by Congress. Similarly, we believe that state-imposed qualifications, as much as congressionally imposed qualifications, would undermine the second critical idea recognized in Powell: that an aspect of sovereignty is the right of the people to vote for whom they wish. Again, the source of the qualification is of little moment in assessing the qualification’s restrictive impact. Finally, state-imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell, violate a third idea central to this basic principle: that the right to choose representatives belongs not to the States, but to the people. From the start, the Framers recognized that the “great and radical vice” of the Articles of Confederation was “the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of whom they consist.” The Federalist No. 15, at 108 (Hamilton). Thus the Framers, in perhaps their most important contribution, conceived of a Federal Government directly responsible to the people, possessed of direct power over the people, and chosen directly, not by States, but by the people. * * * Consistent with these views, the constitutional structure provides for a uniform salary to be paid from the national treasury, allows the States but a limited role in federal elections, and maintains strict checks on state interference with the federal election process. The Constitution also provides that the qualifications of the representatives of each State will be judged by the representatives of the entire Nation. The Constitution thus creates a uniform national body representing the interests of a single people. Permitting individual States to formulate diverse qualifications for their representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure. * * * Such a patchwork would also sever the direct link that the Framers found so critical between the National Government and the people of the United States.32 * * * Petitioners argue that, even if States may not add qualifications, Amendment 73 is constitutional because it is not such a qualification, and because Amendment 73 is a permissible exercise of state power to regulate the “Times, Places and Manner of holding Elections.” We reject these contentions. Unlike §§ 1 and 2 of Amendment 73, which create absolute bars to service for long-term incumbents running for state office, § 3 merely provides that certain Senators and Representatives shall not be certified as candidates and shall not have their names appear on the ballot. They may run as write-in candidates and, if elected, they may serve. Petitioners contend that only a legal bar to service creates an impermissible qualification, and that Amendment 73 is therefore consistent with the Constitution. * * *
There is little significance to the fact that Amendment 73 was adopted by a popular vote, rather than as an Act of the state legislature. In fact, none of the petitioners argues that the constitutionality of a state law would depend on the method of its adoption. This is proper, because the voters of Arkansas, in adopting Amendment 73, were acting as citizens of the State of Arkansas, and not as citizens of the National Government. The people of the State of Arkansas have no more power than does the Arkansas Legislature to supplement the qualifications for service in Congress. * * *
6 We need not decide whether petitioners’ narrow understanding of qualifications is correct because, even if it is, Amendment 73 may not stand. As we have often noted, “[c]onstitutional rights would be of little value if they could be . . . indirectly denied.” Harman v. Forssenius, 380 U.S. 528, 540 (1965), quoting Smith v. Allwright, 321 U.S. 649, 664 (1944) [p. XXX]. The Constitution “nullifies sophisticated as well as simple-minded modes” of infringing on constitutional protections. Lane v. Wilson, 307 U.S. 268, 275 (1939). In our view, Amendment 73 is an indirect attempt to accomplish what the Constitution prohibits Arkansas from accomplishing directly. As the plurality opinion of the Arkansas Supreme Court recognized, Amendment 73 is an “effort to dress eligibility to stand for Congress in ballot access clothing,” because the “intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service.” We must, of course, accept the state court’s view of the purpose of its own law: We are thus authoritatively informed that the sole purpose of § 3 of Amendment 73 was to attempt to achieve a result that is forbidden by the Federal Constitution. Indeed, it cannot be seriously contended that the intent behind Amendment 73 is other than to prevent the election of incumbents. * * * Petitioners make the related argument that Amendment 73 merely regulates the “Manner” of elections, and that the amendment is therefore a permissible exercise of state power under Article I, § 4, cl. 1 (the Elections Clause), to regulate the “Times, Places and Manner” of elections. We cannot agree. * * * The Elections Clause gives States authority “to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved.” Smiley v. Holm, 285 U.S. , 366 [(1932)]. However, “[t]he power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights.” Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986) [p. XXX]. States are thus entitled to adopt “generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.” Anderson v. Celebrezze, 460 U.S. 780, 788, n.9 (1983) [p. XXX]. * * * The provisions at issue in [these] cases were thus constitutional because they regulated election procedures and did not even arguably impose any substantive qualification rendering a class of potential candidates ineligible for ballot position. They served the state interest in protecting the integrity and regularity of the election process, an interest independent of any attempt to evade the constitutional prohibition against the imposition of additional qualifications for service in Congress. And they did not involve measures that exclude candidates from the ballot without reference to the candidates’ support in the electoral process. Our cases upholding state regulations of election procedures thus provide little support for the contention that a stateimposed ballot access restriction is constitutional when it is undertaken for the twin goals of disadvantaging a particular class of candidates and evading the dictates of the Qualifications Clauses. * * * The merits of term limits, or “rotation,” have been the subject of debate since the formation of our Constitution, when the Framers unanimously rejected a proposal to add such limits to the Constitution. The cogent arguments on both sides of the question that were articulated during the process of ratification largely retain their force today. Over half the States have adopted measures that impose such limits on some offices either directly or indirectly, and the Nation as a whole, notably by constitutional amendment, has imposed a limit on the number of terms that the President may serve. Term limits, like any other qualification for office, unquestionably restrict the ability of voters to vote for whom they wish. On the other hand, such limits may provide for
7 the infusion of fresh ideas and new perspectives, and may decrease the likelihood that representatives will lose touch with their constituents. It is not our province to resolve this longstanding debate. We are, however, firmly convinced that allowing the several States to adopt term limits for congressional service would effect a fundamental change in the constitutional framework. Any such change must come not by legislation adopted either by Congress or by an individual State, but rather—as have other important changes in the electoral process—through the amendment procedures set forth in Article V. The Framers decided that the qualifications for service in the Congress of the United States be fixed in the Constitution and be uniform throughout the Nation. That decision reflects the Framers’ understanding that Members of Congress are chosen by separate constituencies, but that they become, when elected, servants of the people of the United States. They are not merely delegates appointed by separate, sovereign States; they occupy offices that are integral and essential components of a single National Government. In the absence of a properly passed constitutional amendment, allowing individual States to craft their own qualifications for Congress would thus erode the structure envisioned by the Framers, a structure that was designed, in the words of the Preamble to our Constitution, to form a “more perfect Union.” The judgment is affirmed. It is so ordered. JUSTICE KENNEDY, concurring. * * * Federalism was our Nation’s own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it. * * * Of course, because the Framers recognized that state power and identity were essential parts of the federal balance, the Constitution is solicitous of the prerogatives of the States, even in an otherwise sovereign federal province. The Constitution uses state boundaries to fix the size of congressional delegations, Art. I, § 2, cl. 3, ensures that each State shall have at least one representative, ibid., grants States certain powers over the times, places, and manner of federal elections (subject to congressional revision), Art. I, § 4, cl. 1, requires that when the President is elected by the House of Representatives, the delegations from each State have one vote, Art. II, § 1, cl. 3, and Amdt. 12, and allows States to appoint electors for the President, Art. II, § 1, cl. 2. Nothing in the Constitution or The Federalist Papers, however, supports the idea of state interference with the most basic relation between the National Government and its citizens, the selection of legislative representatives. * * * Not the least of the incongruities in the position advanced by Arkansas is the proposition, necessary to its case, that it can burden the rights of resident voters in federal elections by reason of the manner in which they earlier had exercised it. If the majority of the voters had been successful in selecting a candidate, they would be penalized from exercising that same right in the future. Quite apart from any First Amendment concerns, see Williams v. Rhodes, 393 U.S. 23, 30 (1968) [p. XXX]; Anderson v. Celebrezze, 460 U.S., [at] 786-788, neither the law nor federal theory allows a State to burden the exercise of federal rights in this manner. * * *
8 * * * There can be no doubt, if we are to respect the republican origins of the Nation and preserve its federal character, that there exists a federal right of citizenship, a relationship between the people of the Nation and their National Government, with which the States may not interfere. Because the Arkansas enactment intrudes upon this federal domain, it exceeds the boundaries of the Constitution. JUSTICE THOMAS, with whom THE CHIEF JUSTICE [REHNQUIST], JUSTICE O’CONNOR, and JUSTICE SCALIA join, dissenting. It is ironic that the Court bases today’s decision on the right of the people to “choose whom they please to govern them.” Under our Constitution, there is only one State whose people have the right to “choose whom they please” to represent Arkansas in Congress. The Court holds, however, that neither the elected legislature of that State nor the people themselves (acting by ballot initiative) may prescribe any qualifications for those representatives. The majority therefore defends the right of the people of Arkansas to “choose whom they please to govern them” by invalidating a provision that won nearly 60% of the votes cast in a direct election and that carried every congressional district in the State. I dissent. Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people. Because the majority fundamentally misunderstands the notion of “reserved” powers, I start with some first principles. Contrary to the majority’s suggestion, the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress, or to authorize their elected state legislators to do so. * * * * * * The Federal Government and the States * * * face different default rules: Where the Constitution is silent about the exercise of a particular power—that is, where the Constitution does not speak either expressly or by necessary implication—the Federal Government lacks that power and the States enjoy it. These basic principles are enshrined in the Tenth Amendment, which declares that all powers neither delegated to the Federal Government nor prohibited to the States “are reserved to the States respectively, or to the people.” With this careful last phrase, the Amendment avoids taking any position on the division of power between the state governments and the people of the States: It is up to the people of each State to determine which “reserved” powers their state government may exercise. But the Amendment does make clear that powers reside at the state level except where the Constitution removes them from that level. All powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State. * * * Any ambiguity in the Tenth Amendment’s use of the phrase “the people” is cleared up by the body of the Constitution itself. Article I begins by providing that the Congress of the United States enjoys “[a]ll legislative Powers herein granted,” § 1, and goes on to give a careful enumeration of Congress’ powers, § 8. It then concludes by enumerating certain powers that are prohibited to the States. The import of this structure is the same as the import of the Tenth Amendment: If we are to invalidate Arkansas’ Amendment 73, we must point to something in the Federal Constitution that deprives the people of Arkansas of the power to enact such measures. The majority disagrees that it bears this burden. But its arguments are unpersuasive.
9 The majority begins by announcing an enormous and untenable limitation on the principle expressed by the Tenth Amendment. According to the majority, the States possess only those powers that the Constitution affirmatively grants to them or that they enjoyed before the Constitution was adopted; the Tenth Amendment “could only ‘reserve’ that which existed before.” From the fact that the States had not previously enjoyed any powers over the particular institutions of the Federal Government established by the Constitution, the majority derives a rule precisely opposite to the one that the Amendment actually prescribes. * * * The majority’s essential logic is that the state governments could not “reserve” any powers that they did not control at the time the Constitution was drafted. But it was not the state governments that were doing the reserving. The Constitution derives its authority instead from the consent of the people of the States. Given the fundamental principle that all governmental powers stem from the people of the States, it would simply be incoherent to assert that the people of the States could not reserve any powers that they had not previously controlled. * * * I take it to be established, then, that the people of Arkansas do enjoy “reserved” powers over the selection of their representatives in Congress. Purporting to exercise those reserved powers, they have agreed among themselves that the candidates covered by § 3 of Amendment 73—those whom they have already elected to three or more terms in the House of Representatives or to two or more terms in the Senate—should not be eligible to appear on the ballot for reelection, but should nonetheless be returned to Congress if enough voters are sufficiently enthusiastic about their candidacy to write in their names. Whatever one might think of the wisdom of this arrangement, we may not override the decision of the people of Arkansas unless something in the Federal Constitution deprives them of the power to enact such measures. The majority settles on “the Qualifications Clauses” as the constitutional provisions that Amendment 73 violates. Because I do not read those provisions to impose any unstated prohibitions on the States, it is unnecessary for me to decide whether the majority is correct to identify Arkansas’ ballot-access restriction with laws fixing true term limits or otherwise prescribing “qualifications” for congressional office. [T]he Qualifications Clauses are merely straightforward recitations of the minimum eligibility requirements that the Framers thought it essential for every Member of Congress to meet. They restrict state power only in that they prevent the States from abolishing all eligibility requirements for membership in Congress. * * * * * * This restriction on state power reflects the fact that when the people of one State send immature, disloyal, or unknowledgeable representatives to Congress, they jeopardize not only their own interests but also the interests of the people of other States. Because Congress wields power over all the States, the people of each State need some guarantee that the legislators elected by the people of other States will meet minimum standards of competence. The Qualifications Clauses provide that guarantee: They list the requirements that the Framers considered essential to protect the competence of the National Legislature. If the people of a State decide that they would like their representatives to possess additional qualifications, however, they have done nothing to frustrate the policy behind the Qualifications Clauses. Anyone who possesses all of the constitutional qualifications, plus some qualifications required by state law, still has all of the federal qualifications. Accordingly, the fact that the Constitution specifies certain qualifications that the Framers deemed necessary to protect the competence of the National Legislature does not imply that it strips the people of the individual States of the power to protect their own interests by adding other requirements for their own representatives. * * *
10 The majority responds that “a patchwork of state qualifications” would “undermin[e] the uniformity and the national character that the Framers envisioned and sought to ensure.” Yet the Framers thought it perfectly consistent with the “national character” of Congress for the Senators and Representatives from each State to be chosen by the legislature or the people of that State. The majority never explains why Congress’ fundamental character permits this state-centered system, but nonetheless prohibits the people of the States and their state legislatures from setting any eligibility requirements for the candidates who seek to represent them. As for the majority’s related assertion that the Framers intended qualification requirements to be uniform, this is a conclusion, not an argument. Indeed, it is a conclusion that the Qualifications Clauses themselves contradict. At the time of the framing, and for some years thereafter, the Clauses’ citizenship requirements incorporated laws that varied from State to State. Thus, the Qualifications Clauses themselves made it possible that a person would be qualified to represent State A in Congress even though a similarly situated person would not be qualified to represent State B. * * * Although the Qualifications Clauses neither state nor imply the prohibition that it finds in them, the majority infers from the Framers’ “democratic principles” that the Clauses must have been generally understood to preclude the people of the States and their state legislatures from prescribing any additional qualifications for their representatives in Congress. But the majority’s evidence on this point establishes only two more modest propositions: (1) the Framers did not want the Federal Constitution itself to impose a broad set of disqualifications for congressional office, and (2) the Framers did not want the Federal Congress to be able to supplement the few disqualifications that the Constitution does set forth. The logical conclusion is simply that the Framers did not want the people of the States and their state legislatures to be constrained by too many qualifications imposed at the national level. The evidence does not support the majority’s more sweeping conclusion that the Framers intended to bar the people of the States and their state legislatures from adopting additional eligibility requirements to help narrow their own choices. * * * * * * One reason why the Framers decided not to let Congress prescribe the qualifications of its own Members was that incumbents could have used this power to perpetuate themselves or their ilk in office. As Madison pointed out at the Philadelphia Convention, Members of Congress would have an obvious conflict of interest if they could determine who may run against them. But neither the people of the States nor the state legislatures would labor under the same conflict of interest when prescribing qualifications for Members of Congress, and so the Framers would have had to use a different calculus in determining whether to deprive them of this power. As the majority argues, democratic principles also contributed to the Framers’ decision to withhold the qualification-setting power from Congress. But the majority is wrong to suggest that the same principles must also have led the Framers to deny this power to the people of the States and the state legislatures. In particular, it simply is not true that “the source of the qualification is of little moment in assessing the qualification’s restrictive impact.” There is a world of difference between a self-imposed constraint and a constraint imposed from above. Congressional power over qualifications would have enabled the representatives from some States, acting collectively in the National Legislature, to prevent the people of another State from electing their preferred candidates. * * * Yet this is simply to say that qualifications should not be set at the national level for offices whose occupants are selected at the state level. The majority never identifies the democratic principles that would have been violated if a state legislature, in the days before the Constitution
11 was amended to provide for the direct election of Senators, had imposed some limits of its own on the field of candidates that it would consider for appointment. Likewise, the majority does not explain why democratic principles prohibit the people of a State from adopting additional eligibility requirements to help narrow their choices among candidates seeking to represent them in the House of Representatives. Indeed, the invocation of democratic principles to invalidate Amendment 73 seems particularly difficult in the present case, because Amendment 73 remains fully within the control of the people of Arkansas. If they wanted to repeal it (despite the 20point margin by which they enacted it less than three years ago), they could do so by a simple majority vote. * * * When the people of a State themselves decide to restrict the field of candidates whom they are willing to send to Washington as their representatives, they simply have not violated the principle that “the people should choose whom they please to govern them.” * * * It is radical enough for the majority to hold that the Constitution implicitly precludes the people of the States from prescribing any eligibility requirements for the congressional candidates who seek their votes. This holding, after all, does not stop with negating the term limits that many States have seen fit to impose on their Senators and Representatives. 39 Today’s decision also means that no State may disqualify congressional candidates whom a court has found to be mentally incompetent, who are currently in prison, or who have past vote-fraud convictions. Likewise, after today’s decision, the people of each State must leave open the possibility that they will trust someone with their vote in Congress even though they do not trust him with a vote in the election for Congress. In order to invalidate § 3 of Amendment 73, however, the majority must go further. The bulk of the majority’s analysis * * * addresses the issues that would be raised if Arkansas had prescribed “genuine, unadulterated, undiluted term limits.” But as the parties have agreed, Amendment 73 does not actually create this kind of disqualification. It does not say that covered candidates may not serve any more terms in Congress if reelected, and it does not indirectly achieve the same result by barring those candidates from seeking reelection. It says only that if they are to win reelection, they must do so by write-in votes. * * * The majority suggests that this does not matter, because Amendment 73 itself says that it has the purpose of “evading the requirements of the Qualifications Clauses.” * * * [I am not sure why the intent behind a law should affect our analysis under the Qualifications Clauses. If a law does not in fact add to the constitutional qualifications, the mistaken expectations of the people who enacted it would not seem to affect whether it violates the alleged exclusivity of those Clauses.] In any event, inquiries into legislative intent are even more difficult than usual when the legislative body whose unified intent must be determined consists of 825,162 Arkansas voters. The majority nonetheless thinks it clear that the goal of § 3 is “to prevent the election of incumbents.” In reaching this conclusion at the summary-judgment stage, however, the majority has given short shrift to petitioners’ contrary claim. Petitioners do not deny that § 3 of Amendment 73 intentionally handicaps a class of candidates, in the sense that it decreases their
Going into the November 1994 elections, eight States [(Colorado, Michigan, Missouri, Montana, Ohio, Oregon, South Dakota, and Utah)] had adopted “pure” term limits of one sort or another. Eight other States [(Arizona, Arkansas, California, Florida, North Dakota, Oklahoma, Washington, and Wyoming)] had enacted “ballot access” provisions triggered by long-term incumbency or multiple prior terms in Congress. In the 1994 elections, six more States—Alaska, Idaho, Maine, Massachusetts, Nebraska, and Nevada—enacted term-limit or ballot-access measures, bringing to 22 the total number of States with such provisions. In 21 of these States, the measures have been enacted by direct vote of the people.
12 pre-existing electoral chances. But petitioners do deny that § 3 is intended to (or will in fact) “prevent” the covered candidates from winning reelection, or “disqualify” them from further service. One of petitioners’ central arguments is that congressionally conferred advantages have artificially inflated the pre-existing electoral chances of the covered candidates, and that Amendment 73 is merely designed to level the playing field on which challengers compete with them. To understand this argument requires some background. Current federal law (enacted, of course, by congressional incumbents) confers numerous advantages on incumbents, and these advantages are widely thought to make it “significantly more difficult” for challengers to defeat them. For instance, federal law gives incumbents enormous advantages in building name recognition and good will in their home districts. See, e.g., 39 U.S.C. § 3210 (permitting Members of Congress to send “franked” mail free of charge); 2 U.S.C. §§ 61-1, 72a, 332 (permitting Members to have sizable taxpayer-funded staffs); 2 U.S.C. § 123b (establishing the House Recording Studio and the Senate Recording and Photographic Studios). At the same time that incumbent Members of Congress enjoy these in-kind benefits, Congress imposes spending and contribution limits in congressional campaigns that “can prevent challengers from spending more . . . to overcome their disadvantage in name recognition.” Many observers believe that the campaign-finance laws also give incumbents an “enormous fund-raising edge” over their challengers by giving a large financing role to entities with incentives to curry favor with incumbents. In addition, the internal rules of Congress put a substantial premium on seniority, with the result that each Member’s already plentiful opportunities to distribute benefits to his constituents increase with the length of his tenure. In this manner, Congress effectively “fines” the electorate for voting against incumbents. * * * At the same time that incumbents enjoy the electoral advantages that they have conferred upon themselves, they also enjoy astonishingly high reelection rates. * * * The voters of Arkansas evidently believe that incumbents would not enjoy such overwhelming success if electoral contests were truly fair—that is, if the government did not put its thumb on either side of the scale. The majority offers no reason to question the accuracy of this belief. Given this context, petitioners portray § 3 of Amendment 73 as an effort at the state level to offset the electoral advantages that congressional incumbents have conferred upon themselves at the federal level. * * * * * * [T]oday’s decision reads the Qualifications Clauses to impose substantial implicit prohibitions on the States and the people of the States. I would not draw such an expansive negative inference * * *. Rather, I would read the Qualifications Clauses to do no more than what they say. I respectfully dissent. Notes and Questions 1. Both the majority and dissenting opinions in U.S. Term Limits spend a considerable amount of time discussing democratic principles to place their legal analysis in context. Einer Elhauge, in his article, Are Term Limits Undemocratic?, 64 U. CHI. L. REV. 83 (1997), revisited those principles and confronted the apparent paradox that the same voters who frequently support term limits nonetheless also frequently vote to keep incumbent officeholders. There is no contradiction, Elhauge argued, because voters who—at least sometimes—wish to oust incumbents (keeping with the ethos of term limits) face a collective-action problem. Any individual political jurisdiction that has term limits is at a disadvantage to jurisdictions that do not, since the latter keep seniority and other political advantages for their incumbents. In
13 contrast, he suggested, the justification for the more established term limits for Presidents, governors, and mayors may reflect the need to deal with high barriers of political entry to run for such positions. He concluded that these rationales provided the better reasons to find term limits to be prodemocratic. How persuasive are Elhauge’s arguments? Do they provide a better basis to support term limits at the state (and sub-state) level as opposed to those for federal officeholders, or vice-versa? 2. The majority in U.S. Term Limits took pains to distinguish “procedural” regulations that protect the “integrity and regularity of the election process” from “substantive” restrictions such as those enacted by Arkansas. In other contexts the Supreme Court has upheld various stateimposed qualifications for being placed on the ballot, including ones that fall more onerously on independent candidates. E.g., Storer v. Brown, 415 U.S. 724 (1974) [p. XXX] (upholding provisions of California law which made independent candidates ineligible for placement on the general-election ballot if they had been members of an existing political party in the past primary season). Could these and similar state restrictions be attacked under U.S. Term Limits, at least for elections to federal offices? In Campbell v. Davidson, 233 F.3d 1229 (10th Cir. 2000), the court struck down provisions of Colorado law which required seekers of federal office to be registered voters in that state before the beginning of the term of office. Following U.S. Term Limits and distinguishing cases like Storer, the court concluded that the requirements did not merely winnow candidates for the ballot but impermissibly excluded certain types of candidates. 3. Is there a constitutional difference between the people of a state acting collectively to add to the constitutionally specified qualifications—the effort struck down in U.S. Term Limits—and the people acting individually by voting against any candidate not possessing the additional qualifications? If a state legislature were to choose presidential electors (or, before the Seventeenth Amendment, United States Senators), could it constitutionally restrict its choice to those candidates with certain experience, or who are members of the majority party in the legislature? 4. While U.S. Term Limits places considerable weight on the Qualifications Clauses of the Constitution, do the broader principles applied by the Court suggest that term limits for state officials also violate the Constitution? One court answered in the negative, concluding that lifetime term limits in California were constitutional, and that U.S. Term Limits was limited to congressional offices. Bates v. Jones, 131 F.3d 843, 847 n.1 (9th Cir. 1997) (en banc). In contrast, the dissent argued that the broader analysis of U.S. Term Limits suggested that it had implications for attacks on state term limits. Id. at 868-72 (Fletcher, J., dissenting). 5. The vast majority of legislative term limits adopted in states in the 1990s were by popular initiative or referendum, not by state legislatures. Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 GEO. L.J. 491, 510 (1997). Why have state legislatures largely not enacted these limits? To what extent, if at all, should the method of enactment of term limits affect judicial review of such provisions? 6. Term limits are themselves sometimes limited or repealed, as support for the measures ebbs despite initial enthusiasm. For example, since the widespread adoption of such limits for state legislatures in the 1990s, two have been repealed by legislatures (Idaho and Utah), and others have been ruled unconstitutional by state supreme courts (Massachusetts, Oregon, Washington, and Wyoming). For other examples, see David W. Chen & Michael Barbaro, Across Country, New Challenges to Term Limits, N.Y. TIMES, Sept. 10, 2008, at A1. A highprofile example of the controversy that continues to surround term limits was the extension of the two-term limit for New York City’s mayor to three terms in 2008. The extension survived a
14 legal challenge, Molinari v. Bloomberg, 564 F.3d 587 (2d Cir. 2009), but it proved a political liability for incumbent Mayor Michael Bloomberg, the beneficiary of the change. Michael Barbaro, Change to Term Limits Dogs Mayor, N.Y. TIMES, Oct. 4, 2009, at A17.
COOK v. GRALIKE
Supreme Court of the United States 531 U.S. 510, 121 S. Ct. 1029, 149 L. Ed. 2d 44 (2001).
JUSTICE STEVENS delivered the opinion of the Court [in which JUSTICE SCALIA, JUSTICE KENNEDY, JUSTICE SOUTER, JUSTICE THOMAS, JUSTICE GINSBURG, and JUSTICE BREYER join]. * * * Article VIII [of the Missouri Constitution] “instruct[s]” each Member of Missouri’s congressional delegation “to use all of his or her delegated powers to pass the Congressional Term Limits Amendment” set forth in § 16 of the Article. That proposed amendment would limit service in the United States Congress to three terms in the House of Representatives and two terms in the Senate. Three provisions in Article VIII combine to advance its purpose. Section 17 prescribes that the statement “DISREGARDED VOTERS’ INSTRUCTION ON TERM LIMITS” be printed on all primary and general ballots adjacent to the name of a Senator or Representative who fails to take any one of eight legislative acts in support of the proposed amendment. Section 18 provides that the statement “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS” be printed on all primary and general election ballots next to the name of every nonincumbent congressional candidate who refuses to take a “Term Limit” pledge that commits the candidate, if elected, to performing the legislative acts enumerated in § 17. And § 19 directs the Missouri Secretary of State to determine and declare, pursuant to §§ 17 and 18, whether either statement should be printed alongside the name of each candidate for Congress. Respondent Don Gralike was a nonincumbent candidate for election in 1998 to the United States House of Representatives from Missouri’s Third Congressional District. A month after Article VIII was amended, Gralike brought suit * * * to enjoin petitioner, the Secretary of State of Missouri, from implementing the Article, which the complaint alleges violates several provisions of the Federal Constitution. * * * The federal offices at stake “aris[e] from the Constitution itself.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. , 805 [(1995)] [p. XXX]. Because any state authority to regulate election to those offices could not precede their very creation by the Constitution, such power “had to be delegated to, rather than reserved by, the States.” Id., at 804. * * * Through the Elections Clause, the Constitution delegated to the States the power to regulate the “Times, Places and Manner of holding Elections for Senators and Representatives,” subject to a grant of authority to Congress to “make or alter such Regulations.” Art. I, § 4, cl. 1. No other constitutional provision gives the States authority over congressional elections, and no such authority could be reserved under the Tenth Amendment. By process of elimination, the States may regulate the incidents of such elections, including balloting, only within the exclusive delegation of power under the Elections Clause. With respect to the Elections Clause, petitioner argues that Article VIII “merely regulates the manner in which elections are held by disclosing information about congressional candidates.” As such, petitioner concludes, Article VIII is a valid exercise of Missouri’s delegated power. We disagree. To be sure, the Elections Clause grants to the States “broad power” to prescribe the procedural mechanisms for holding congressional elections. Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986) [p. XXX]; see also Smiley v. Holm, 285 U.S. 355, 366 (1932).
15 Nevertheless, Article VIII falls outside of that grant of authority. As we made clear in U.S. Term Limits, “the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.” 514 U.S., at 833-834. Article VIII is not a procedural regulation. It does not regulate the time of elections; it does not regulate the place of elections; nor, we believe, does it regulate the manner of elections. As to the last point, Article VIII bears no relation to the “manner” of elections as we understand it, for in our commonsense view that term encompasses matters like “notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.” Smiley, 285 U.S., at 366; see also U.S. Term Limits, Inc. v. Thornton, 514 U.S., at 833. In short, Article VIII is not among “the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved,” Smiley, 285 U.S., at 366, ensuring that elections are “fair and honest,” and that “some sort of order, rather than chaos, is to accompany the democratic process,” Storer v. Brown, 415 U.S. 724, 730 (1974) [p. XXX]. Rather, Article VIII is plainly designed to favor candidates who are willing to support the particular form of a term limits amendment set forth in its text and to disfavor those who either oppose term limits entirely or would prefer a different proposal. As noted, the state provision does not just “instruct” each member of Missouri’s congressional delegation to promote in certain ways the passage of the specified term limits amendment. It also attaches a concrete consequence to noncompliance—the printing of the statement “DISREGARDED VOTERS’ INSTRUCTIONS ON TERM LIMITS” by the candidate’s name on all primary and general election ballots. Likewise, a nonincumbent candidate who does not pledge to follow the instruction receives the ballot designation “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS.” In describing the two labels, the courts below have employed terms such as “pejorative,” “negative,” “derogatory,” “intentionally intimidating,” “particularly harmful,” “politically damaging,” “a serious sanction,” “a penalty,” and “official denunciation.” The general counsel to petitioner’s office, no less, has denominated the labels as “the Scarlet Letter.” We agree with the sense of these descriptions. They convey the substantial political risk the ballot labels impose on current and prospective congressional members who, for one reason or another, fail to comply with the conditions set forth in Article VIII for passing its term limits amendment. Although petitioner now claims that the labels “merely” inform Missouri voters about a candidate’s compliance with Article VIII, she has acknowledged under oath that the ballot designations would handicap candidates for the United States Congress. To us, that is exactly the intended effect of Article VIII. Indeed, it seems clear that the adverse labels handicap candidates “at the most crucial stage in the election process—the instant before the vote is cast.” Anderson v. Martin, 375 U.S. 399, 402 (1964). At the same time, “by directing the citizen’s attention to the single consideration” of the candidates’ fidelity to term limits, the labels imply that the issue “is an important—perhaps paramount—consideration in the citizen’s choice, which may decisively influence the citizen to cast his ballot” against candidates branded as unfaithful. Ibid. While the precise damage the labels may exact on candidates is disputed between the parties, the labels surely place their targets at a political disadvantage to unmarked candidates for congressional office. Thus, far from regulating the procedural mechanisms of elections, Article VIII attempts to “dictate electoral outcomes.” U.S. Term Limits, Inc. v. Thornton, 514 U.S., at 833-834. Such “regulation”
16 of congressional elections simply is not authorized by the Elections Clause. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. JUSTICE KENNEDY, concurring. I join the opinion of the Court * * *. It seems appropriate, however, to add these brief observations * * *. The Court does not say the States are disabled from requesting specific action from Congress or from expressing their concerns to it. As the Court holds, however, the mechanism the State seeks to employ here goes well beyond this prerogative. A State is not permitted to interpose itself between the people and their National Government as it seeks to do here. Whether a State’s concern is with the proposed enactment of a constitutional amendment or an ordinary federal statute it simply lacks the power to impose any conditions on the election of Senators and Representatives, save neutral provisions as to the time, place, and manner of elections pursuant to Article I, § 4. * * * The Court rules, as it must, that the amendments to Article VIII of the Missouri Constitution do not regulate the time or place of federal elections; rather, those provisions are an attempt to control the actions of the State’s congressional delegation. The dispositive principle in this case is fundamental to the Constitution, to the idea of federalism, and to the theory of representative government. The principle is that Senators and Representatives in the National Government are responsible to the people who elect them, not to the States in which they reside. The Constitution was ratified by Conventions in the several States, not by the States themselves, U.S. Const., Art. VII, a historical fact and a constitutional imperative which underscore the proposition that the Constitution was ordained and established by the people of the United States. U.S. Const., preamble. The idea of federalism is that a National Legislature enacts laws which bind the people as individuals, not as citizens of a State; and, it follows, freedom is most secure if the people themselves, not the States as intermediaries, hold their federal legislators to account for the conduct of their office. If state enactments were allowed to condition or control certain actions of federal legislators, accountability would be blurred, with the legislators having the excuse of saying that they did not act in the exercise of their best judgment but simply in conformance with a state mandate. As noted in the concurring opinion in Thornton, “[n]othing in the Constitution or The Federalist Papers . . . supports the idea of state interference with the most basic relation between the National Government and its citizens, the selection of legislative representatives.” 514 U.S., at 842. Yet that is just what Missouri seeks to do through its law—to wield the power granted to it by the Elections Clause to handicap those who seek federal office by affixing pejorative labels next to their names on the ballot if they do not pledge to support the State’s preferred position on a certain issue. Neither the design of the Constitution nor sound principles of representative government are consistent with the right or power of a State to interfere with the direct line of accountability between the National Legislature and the people who elect it. For these reasons Article VIII is void. This said, it must be noted that when the Constitution was enacted, respectful petitions to legislators were an accepted mode of urging legislative action. This right is preserved to individuals (the people) in the First Amendment. Even if a State, as an entity, is not itself protected by the Petition Clause, there is no principle prohibiting a state legislature from following a parallel course and by a memorial resolution requesting the Congress of the United States to pay heed to certain state concerns. From the earliest days of our Republic to the present time, States have done so in the context of federal legislation. See, e.g., 22 Annals of Cong. 153-
17 154 (1811) (reprinting a resolution by the General Assembly of the Commonwealth of Pennsylvania requesting that the charter of the Bank of the United States not be renewed); 2000 Ala. Acts 66 (requesting targeted relief for Medicare cuts); 2000 Kan. Sess. Laws, ch. 186 (urging Congress to allow state-inspected meat to be shipped in interstate commerce). Indeed, the situation was even more complex in the early days of our Nation, when Senators were appointed by state legislatures rather than directly elected. At that time, it appears that some state legislatures followed a practice of instructing the Senators whom they had appointed to pass legislation, while only requesting that the Representatives, who had been elected by the people, do so. See 22 Annals of Cong., at 153-154. I do not believe that the situation should be any different with respect to a proposed constitutional amendment, and indeed history bears this out. See, e.g., 13 Annals of Cong. 95-96 (1803) (reprinting a resolution from the State of Vermont and the Commonwealth of Massachusetts requesting that Congress propose to the legislatures of the States a constitutional amendment akin to the Twelfth Amendment). The fact that the Members of the First Congress decided not to codify a right to instruct legislative representatives does not, in my view, prove that they intended to prohibit nonbinding petitions or memorials by the State as an entity. If there are to be cases in which a close question exists regarding whether the State has exceeded its constitutional authority in attempting to influence congressional action, this case is not one of them. In today’s case the question is not close. Here the State attempts to intrude upon the relationship between the people and their congressional delegates by seeking to control or confine the discretion of those delegates, and the interference is not permissible. With these observations, I concur in the Court’s opinion. JUSTICE THOMAS, concurring * * *. I continue to believe that, because they possess “reserved” powers, “the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications for their representatives in Congress, or to authorize their elected state legislators to do so.” U.S. Term Limits, Inc. v. Thornton, 514 U.S., [at] 846 (THOMAS, J., dissenting). For this reason, I disagree with the Court’s premise, derived from U.S. Term Limits, that the States have no authority to regulate congressional elections except for the authority that the Constitution expressly delegates to them. Nonetheless, the parties conceded the validity of this premise, and I therefore concur. CHIEF JUSTICE REHNQUIST, with whom JUSTICE O’CONNOR joins, concurring in the judgment. I would affirm the judgment of the Court of Appeals, but on the ground that Missouri’s Article VIII violates the First Amendment to the United States Constitution. Specifically, I believe that Article VIII violates the First Amendment right of a political candidate, once lawfully on the ballot, to have his name appear unaccompanied by pejorative language required by the State. Our ballot access cases based on First Amendment grounds have rarely distinguished between the rights of candidates and the rights of voters. In Bullock v. Carter, 405 U.S. 134, 143 (1972) [p. XXX], we said: “[T]he rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” And in Anderson v. Celebrezze, 460 U.S. 780, 787 (1983) [p. XXX], we said that “voters can assert their preferences only through candidates or parties or both.” Actions such as the present one challenging ballot provisions have in most instances been brought by the candidates themselves, and no one questions the standing of
18 respondents Gralike and Harmon to raise a First Amendment challenge to such laws.* Article I, § 4, provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . .” Missouri justifies Article VIII as a “time, place, and manner” regulation of election. Restrictions of this kind are valid “provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). Missouri’s Article VIII flunks two of these three requirements. Article VIII is not only not content neutral, but it actually discriminates on the basis of viewpoint because only those candidates who fail to conform to the State’s position receive derogatory labels. The result is that the State injects itself into the election process at an absolutely critical point—the composition of the ballot, which is the last thing the voter sees before he makes his choice—and does so in a way that is not neutral as to issues or candidates. The candidates who are thus singled out have no means of replying to their designation which would be equally effective with the voter. In Anderson v. Martin, we held that a Louisiana statute requiring the designation of a candidate’s race on the ballot violated the Equal Protection Clause. In describing the effect of such a designation, the Court said: “[B]y directing the citizen’s attention to the single consideration of race or color, the State indicates that a candidate’s race or color is an important —perhaps paramount—consideration in the citizen’s choice, which may decisively influence the citizen to cast his ballot along racial lines.” Id., at 402. So, too, here the State has chosen one and only one issue to comment on the position of the candidates. During the campaign, they may debate tax reform, Social Security, national security, and a host of other issues; but when it comes to the ballot on which one or the other of them is chosen, the State is saying that the issue of term limits is paramount. Although uttered in a different context, what we said in Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972), is equally applicable here: “[Government] may not select which issues are worth discussing or debating.” If other Missouri officials feel strongly about the need for term limits, they are free to urge rejection of candidates who do not share their view and refuse to “take the pledge.” Such candidates are able to respond to that sort of speech with speech of their own. But the State itself may not skew the ballot listings in this way without violating the First Amendment. Notes and Questions 1. How does Gralike apply to other state regulations of federal elections? Justice Kennedy said it was not a close case, but how are close cases evaluated under Gralike? For example, states frequently list the political parties of candidates on ballots for federal office. Can a candidate object under Gralike? For a general discussion of other ballot restrictions in light of Gralike, see Matthew M. Mannix, Comment, Opening Ballot Access to Political Outsiders: How Third Parties Could Use Cook v. Gralike to Challenge the Dominance of America’s Two-Party System, 11 ROGER WILLIAMS U. L. REV. 273 (2005). 2. Does or should Gralike apply to state elections? How would the authors of the concurring opinions resolve that issue?
The Court of Appeals upheld their First Amendment claim, but based its reasoning on the view that the ballot statements were “compelled speech” by the candidate, and therefore ran afoul of cases such as Wooley v. Maynard, 430 U.S. 705 (1977). I do not agree with the reasoning of the Court of Appeals. I do not believe a reasonable voter, viewing the ballot labeled as Article VIII requires, would think that the candidate in question chose to characterize himself as having “disregarded voters’ instructions” or as “having declined to pledge” to support term limits.
19 3. Why do you think Justice Scalia joined the majority opinion in Gralike after dissenting in U.S. Term Limits? 4. It has been argued that even without the Qualifications Clauses and the First Amendment, the result in Gralike should be the same, since the structural provisions of “a representative democracy—plainly contemplated by the Constitution’s provisions for the federal legislature and federal elections—is dependent on the operation of elections unbiased by the existing government.” Vicki C. Jackson, Cook v. Gralike: Easy Cases and Structural Reasoning, 2001 SUP. CT. REV. 299, 300; cf. National Endowment for the Arts v. Finley, 524 U.S. 569, 598 n.3 (1998) (Scalia, J., concurring in the judgment) (“I suppose it would be unconstitutional for the government to give money to an organization devoted to the promotion of candidates nominated by the Republican party—but it would be just as unconstitutional for the government itself to promote candidates nominated by the Republican party, and I do not think that that unconstitutionality has anything to do with the First Amendment.”). But if Article VIII of the Missouri Constitution did not violate the Qualifications Clauses or the First Amendment, by what authority could the Supreme Court invalidate it?
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