Constitutional Law Cases: Rehnquist Court
2000
COOK v. GRALIKE et al. certiorari to the united states court of appeals for the eighth circuit
No. 99-929.
Argued November 6, 2000
Decided February 28, 2001
In U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, the Court held that an Arkansas
law prohibiting otherwise eligible congressional candidates from appearing on the
general election ballot if they had already served two Senate terms or three House
terms was an impermissible attempt to add qualifications to congressional office rather
than a permissible exercise of the State's Elections Clause power to regulate the
"Times, Places and Manner of holding Elections for Senators and Representatives,"
U. S. Const., Art., I, §4, cl. 1. In response, Missouri voters adopted an amendment
to Article VIII of their State Constitution designed to bring about a specified "Congressional
Term Limits Amendment" to the Federal Constitution. Among other things, Article VIII
"instruct[s]" Missouri Congress Members to use all their powers to pass the federal
amendment; prescribes that "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" be printed
on ballots by the names of Members failing to take certain legislative acts in support
of the proposed amendment; provides that "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS"
be printed by the names of nonincumbent candidates refusing to take a "Term Limit"
pledge to perform those acts if elected; and directs the Missouri Secretary of State
(Secretary), the petitioner here, to determine and declare whether either statement
should be printed by candidates' names. Respondent Gralike, a nonincumbent House candidate,
sued to enjoin petitioner from implementing Article VIII on the ground it violated
the Federal Constitution. The District Court granted Gralike summary judgment, and
the Eighth Circuit affirmed.
Held: Article VIII is unconstitutional. Pp. 6-15.
(a) Because petitioner's arguments that Article VIII is an exercise of the people's
right to instruct their representatives reserved by the Tenth Amendment, as well as
a permissible regulation of the "manner" of electing federal legislators under the
Elections Clause, rely on different sources of state power, the Court reviews the
distinction in kind between reserved state powers and those delegated to the States
by the Constitution. The Constitution draws a basic distinction between the powers
of the newly created Federal Government and the powers retained by the pre-existing
sovereign States. U. S. Term Limits, 514 U. S., at 801. On the one hand, such retained
powers proceed, not from the American people, but from the people of the several States.
They remain, after the Constitution's adoption, what they were before, except insofar
as they are abridged by that instrument. Sturges v. Crowninshield, 4 Wheat. 122, 193.
On the other hand, the States can exercise no powers springing exclusively from the
National Government's existence which the Constitution did not delegate. Pp. 6-8.
(b) Petitioner's argument that Article VIII is a valid exercise of the State's reserved
power to give binding instructions to its representatives is unpersuasive for three
reasons. First, the historical precedents on which she relies--concerning the part
instructions played in the Second Continental Congress, the Constitutional Convention,
the early Congress, the selection of United States Senators before the Seventeenth
Amendment's passage, and the ratification of certain federal constitutional amendments--are
distinguishable because, unlike Article VIII, none of petitioner's examples was coupled
with an express legal sanction for disobedience. Second, countervailing historical
evidence is provided by the fact that the First Congress rejected a proposal to insert
a right of the people "to instruct their representatives" into what would become the
First Amendment. Third, and of decisive significance, the means employed to issue
the instructions, ballots for congressional elections, are unacceptable unless Article
VIII is a permissible exercise of the State's power to regulate the manner of holding
congressional elections. Pp. 8-10.
(c) The federal offices at stake arise from the Constitution itself. See U. S. Term
Limits, 514 U. S., at 805. 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 the States, rather than reserved under the Tenth Amendment. Id.,
at 804. No constitutional provision other than the Elections Clause gives the States
authority over congressional elections. By process of elimination then, the States
may regulate the incidents of such elections, including balloting, only within the
exclusive delegation of their Elections Clause power. The Court disagrees with petitioner's
argument that Article VIII is a valid exercise of that power in that it regulates
the "manner" in which elections are held by disclosing information about congressional
candidates. The Clause grants to the States "broad power" to prescribe the procedural
mechanisms for holding congressional elections, e.g., Tashjian v. Republican Party
of Conn., 479 U. S. 208, 217, but does not authorize them to dictate electoral outcomes,
to favor or disfavor a class of candidates, or to evade important constitutional restraints,
U. S. Term Limits, 514 U. S., at 833-834. Article VIII is not a procedural regulation.
It does not control the "manner" of elections, for that term encompasses matters like
notices, registration, supervision of voting, and other requirements as to procedure
and safeguards which experience shows are necessary to enforce the fundamental right
involved. See, e.g., Smiley v. Holm, 285 U. S. 355, 366. 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. Cf. Anderson v. Celebrezze,
460 U. S. 780, 788, n. 9. It not only "instruct[s]" Missouri's congressional Members
to promote the passage of the specified term limits amendment, but also attaches a
concrete consequence to noncompliance--the printing of an adverse label by the candidate's
name on ballots. The two labels impose substantial political risk on candidates who
fail to comply with Article VIII, handicapping them at the most crucial stage in the
election process--the instant before the vote is cast, Anderson v. Martin, 375 U.
S. 399, 402. And, 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. Ibid. Article
VIII thus attempts to "dictate electoral outcomes." U. S. Term Limits, 514 U. S.,
at 833-834. Such "regulation" of congressional elections is not authorized by the
Elections Clause. Pp. 11-15.
191 F. 3d 911, affirmed.
Stevens, J., delivered the opinion of the Court, in which Scalia, Kennedy, Ginsburg,
and Breyer, JJ., joined, in which Souter, J., joined, as to Parts I, II, and IV, and
in which Thomas, J., joined as to Parts I and IV. Kennedy, J., filed a concurring
opinion. Thomas, J., filed an opinion concurring in part and concurring in the judgment.
Rehnquist, C. J., filed an opinion concurring in the judgment, in which O'Connor,
J., joined.
REBECCA McDOWELL COOK, PETITIONER v.
DONALD J. GRALIKE and MIKE HARMAN
on writ of certiorari to the united states court of
appeals for the eighth circuit
[February 28, 2001]
Justice Stevens delivered the opinion of the Court.
In U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779 (1995), we reviewed a challenge
to an Arkansas law that prohibited the name of an otherwise eligible candidate for
the United States Congress from appearing on the general election ballot if he or
she had already served three terms in the House of Representatives or two terms in
the Senate. We held that the ballot restriction was an indirect attempt to impose
term limits on congressional incumbents that violated the Qualifications Clauses in
Article I of the Constitution rather than a permissible exercise of the State's power
to regulate the "Times, Places and Manner of holding Elections for Senators and Representatives"
within the meaning of Article I, §4, cl. 1.
In response to that decision, the voters of Missouri adopted in 1996 an amendment
to Article VIII1 of their State Constitution designed to lead to the adoption of a
specified "Congressional Term Limits Amendment" to the Federal Constitution. At issue
in this case is the constitutionality of Article VIII.
I
Article VIII "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. Mo. Const., Art. VIII, §17(1). 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.2
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.3
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 §17.4 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.5
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, respondent brought suit6 in the United States District
Court for the Western District of Missouri 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 District Court decided the case on the pleadings, granting Gralike's motion for
summary judgment. The court first held that Article VIII contravened the Qualifications
Clauses of Article I of the Federal Constitution because it "has the sole purpose
of creating additional qualifications for Congress indirectly and has the likely effect
of handicapping a class of candidates for Congress." 996 F. Supp. 917, 920 (1998);
see 996 F. Supp. 901, 905-
909 (1998). The court further held that Article VIII places an impermissible burden
on the candidates' First Amendment right to speak freely on the issue of term limits
by "punish[ing] candidates for speaking out against term limits" through putting "negative
words next to their names on the ballot," and by "us[ing] the threat of being disadvantaged
in the election to coerce candidates into taking a position on the term limits issue."
996 F. Supp., at 910; see 996 F. Supp., at 920. Lastly, the court found Article VIII
to be an indirect and unconstitutional attempt by the people of Missouri to interject
themselves into the amending process authorized by Article V of the Federal Constitution.
In doing so, the court endorsed the reasoning of other decisions invalidating provisions
similar to Article VIII on the ground that negative ballot designations "place an
undue influence on the legislator to vote in favor of term limits rather than exercise
his or her own independent judgment as is contemplated by Article V." 996 F. Supp.,
at 916; see 996 F. Supp., at 920.7 Accordingly, the court permanently enjoined petitioner
from enforcing §§15 through 19 of Article VIII.
The United States Court of Appeals for the Eighth Circuit affirmed.8 Like the District
Court, it found that Article VIII "threatens a penalty that is serious enough to compel
candidates to speak--the potential political damage of the ballot labels"; "seeks
to impose an additional qualification for candidacy for Congress and does so in a
manner which is highly likely to handicap term limit opponents and other labeled candidates";
and "coerce[s] legislators into proposing or ratifying a particular constitutional
amendment" in violation of Article V. 191 F. 3d 911, 918, 924, 925 (1999). The Court
of Appeals also observed that, contrary to the Speech or Debate Clause in Art. I,
§6, cl. 1, of the Federal Constitution, Article VIII "establishes a regime in which
a state officer--the secretary of state--is permitted to judge and punish Members
of Congress for their legislative actions or positions." 191 F. 3d., at 922.9
Although the Court of Appeals' decision is consistent with the views of other courts
that have passed on similar voter initiatives,10 the importance of the case prompted
our grant of certiorari. 529 U. S. 1065 (2000).
II
Article VIII furthers the State's interest in adding a term limits amendment to the
Federal Constitution in two ways. It encourages Missouri's congressional delegation
to support such an amendment in order to avoid an unfavorable ballot designation when
running for reelection. And it encourages the election of representatives who favor
such an amendment. Petitioner argues that Article VIII is an exercise of the "right
of the people to instruct" their representatives reserved by the Tenth Amendment,11
and that it is a permissible regulation of the "manner" of electing federal legislators
within the authority delegated to the States by the Elections Clause, Art. I, §4,
cl. 1.12 Because these two arguments rely on different sources of state power, it
is appropriate at the outset to review the distinction in kind between powers reserved
to the States and those delegated to the States by the Constitution.
As we discussed at length in U. S. Term Limits, the Constitution "draws a basic distinction
between the powers of the newly created Federal Government and the powers retained
by the pre-existing sovereign States." 514 U. S., at 801. On the one hand, in the
words of Chief Justice Marshall, "it was neither necessary nor proper to define the
powers retained by the States. These powers proceed, not from the people of America,
but from the people of the several States; and remain, after the adoption of the constitution,
what they were before, except so far as they may be abridged by that instrument."
Sturges v. Crowninshield, 4 Wheat. 122, 193 (1819). The text of the Tenth Amendment
delineates this principle:
"The powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people."
On the other hand, as Justice Story observed, "the states can exercise no powers
whatsoever, which exclusively spring out of the existence of the national government,
which the constitution did not delegate to them." 1 Commentaries on the Constitution
of the United States §627 (3d ed. 1858) (hereinafter Story). Simply put, "[n]o state
can say, that it has reserved, what it never possessed." Ibid.
III**
To be persuasive, petitioner's argument that Article VIII is a valid exercise of
the State's reserved power to give binding instructions to its representatives would
have to overcome three hurdles. First, the historical precedents on which she relies
for the proposition that the States have such a reserved power are distinguishable.
Second, there is countervailing historical evidence. Third, and of decisive significance,
the means employed to issue the instructions, ballots for congressional elections,
are unacceptable unless Article VIII is a permissible exercise of the State's power
to regulate the manner of holding elections for Senators and Representatives. Only
a brief comment on the first two points is necessary.
Petitioner relies heavily on the part instructions played in the Second Continental
Congress, the Constitutional Convention, the early Congress, the selection of United
States Senators before the passage of the Seventeenth Amendment, and the ratification
of certain federal constitutional amendments.13 However, unlike Article VIII, none
of petitioner's examples was coupled with an express legal sanction for disobedience.14
At best, as an amicus curiae for petitioner points out, and as petitioner herself
acknowledges, such historical instructions at one point in the early Republic may
have had "de facto binding force" because it might have been "political suicide" not
to follow them.15 This evidence falls short of demonstrating that either the people
or the States had a right to give legally binding, i.e., nonadvisory, instructions
to their representatives that the Tenth Amendment reserved, much less that such a
right would apply to federal representatives. See U. S. Term Limits, Inc. v. Thornton,
514 U. S., at 802 (Tenth Amendment "could only `reserve' that which existed before");
cf. McCulloch v. Maryland, 4 Wheat. 316, 430 (1819) (rejecting argument that States
had reserved power to tax corporations chartered by Congress because an "original
right to tax" such federal entities "never existed").
Indeed, contrary evidence is provided by the fact that the First Congress rejected
a proposal to insert a right of the people "to instruct their representatives" into
what would become the First Amendment. 1 Annals of Cong. 732 (1789). The fact that
the proposal was made suggests that its proponents thought it necessary, and the fact
that it was rejected by a vote of 41 to 10, id., at 747, suggests that we should give
weight to the views of those who opposed the proposal. It was their view that binding
instructions would undermine an essential attribute of Congress by eviscerating the
deliberative nature of that National Assembly. See, e.g., id., at 735 (remarks of
Rep. Sherman) ("[W]hen the people have chosen a representative, it is his duty to
meet others from the different parts of the Union, and consult, and agree with them
to such acts as are for the general benefit of the whole community. If they were to
be guided by instructions, there would be no use in deliberation; all that a man would
have to do, would be to produce his instructions, and lay them on the table, and let
them speak for him"). As a result, James Madison, then a Representative from Virginia,
concluded that a right to issue binding instructions would "run the risk of losing
the whole system." Id., at 739; see also id., at 735 (remarks of Rep. Clymer) (proposed
right to give binding instructions was "a most dangerous principle, utterly destructive
of all ideas of an independent and deliberative body, which are essential requisites
in the Legislatures of free Governments").16
In any event, even assuming the existence of the reserved right that petitioner asserts
(and that Article VIII falls within its ambit), the question remains whether the State
may use ballots for congressional elections as a means of giving its instructions
binding force.
IV
The federal offices at stake "aris[e] from the Constitution itself." U. S. Term Limits,
Inc. v. Thornton, 514 U. S., at 805. 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. Cf. 1
Story §627 ("It is no original prerogative of state power to appoint a representative,
a senator, or president for the union"). 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; see United States v. Classic,
313 U. S. 299, 315 (1941). 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."17 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); see also Smiley v. Holm,
285 U. S. 355, 366 (1932) ("It cannot be doubted that these comprehensive words embrace
authority to provide a complete code for congressional elections"). 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.18 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).
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.
Cf. Anderson v. Celebrezze, 460 U. S. 780, 788, n. 9 (1983) ("We have upheld generally
applicable and evenhanded [ballot access] restrictions that protect the integrity
and reliability of the electoral process itself"). 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."
191 F. 3d, at 918, 919, 922, 925; 996 F. Supp., at 908; see id., at 910, 916. The
general counsel to petitioner's office, no less, has denominated the labels as "the
Scarlet Letter." App. 34-35. 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. Id., at 66. 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.19 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"
of congressional elections simply is not authorized by the Elections Clause.20
Accordingly, the judgment of the Court of Appeals is
affirmed.
It is so ordered.
REBECCA McDOWELL COOK, PETITIONER v.
DONALD J. GRALIKE and MIKE HARMAN
on writ of certiorari to the united states court of
appeals for the eighth circuit
[February 28, 2001]
Justice Kennedy, concurring.
I join the opinion of the Court, holding §15 et seq. of Article VIII of the Missouri
Constitution violative of the Constitution of the United States. It seems appropriate,
however, to add these brief observations with respect to Part III of the opinion.
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. As the Court observed in U. S. Term Limits, Inc. v. Thornton, 514 U.
S. 779 (1995), the Elections Clause is a "grant of authority to issue procedural regulations,"
and not "a source of power to dictate electoral outcomes, to favor or disfavor a class
of candidates, or to evade important constitutional restraints." Id., at 833-834.
The Elections Clause thus delegates but limited power over federal elections to the
States. Id., at 804. 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. See W. Miller,
Arguing About Slavery 105-107 (1995). 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. 153-154 (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. 153-154 (1811). 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.
REBECCA McDOWELL COOK, PETITIONER v.
DONALD J. GRALIKE and MIKE HARMAN
on writ of certiorari to the united states court of
appeals for the eighth circuit
[February 28, 2001]
Justice Thomas, concurring in Parts I and IV and concurring in the judgment.
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. 779, 846 (1995) (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. See ante, at 11. Nonetheless, the parties conceded the
validity of this premise, see Brief for Petitioner 25-26; Brief for Respondents 12-13,
and I therefore concur.
REBECCA McDOWELL COOK, PETITIONER v.
DONALD J. GRALIKE and MIKE HARMAN
on writ of certiorari to the united states court of
appeals for the eighth circuit
[February 28, 2001]
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), 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), 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 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, 375 U. S. 399 (1964), we held 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 Department 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.
FOOTNOTES
Footnote 1
We shall follow the parties' practice of referring to the amendment as "Article VIII"
even though it merely added new §§15 through 22 to the pre-existing article.
Footnote 2
The full text of the proposed amendment is as follows:
"Congressional Term Limits Amendment
"(a) No person shall serve in the office of United States Representative for more
than three terms, but upon ratification of this amendment no person who has held the
office of the United States Representative or who then holds the office shall serve
for more than two additional terms.
"(b) No person shall serve in the office of United States Senator for more than two
terms, but upon ratification of this amendment no person who has held the office of
United States Senator or who then holds the office shall serve in the office for more
than one additional term.
"(c) Any state may enact by state constitutional amendment longer or shorter limits
than those specified in section `a' or `b' herein.
"(d) This article shall have no time limit within which it must be ratified to become
operative upon the ratification of the legislatures of three-fourths of the several
States."
Footnote 3
Section 17(2) provides that the statement shall be printed "adjacent to the name
of any United States Senator or Representative who:
"(a) fails to vote in favor of the proposed Congressional Term Limits Amendment set
forth above when brought to a vote or;
"(b) fails to second the proposed Congressional Term Limits Amendment set forth above
if it lacks for a second before any proceeding of the legislative body or;
"(c) fails to propose or otherwise bring to a vote of the full legislative body the
proposed Congressional Term Limits Amendment set forth above if it otherwise lacks
a legislator who so proposes or brings to a vote of the full legislative body the
proposed Congressional Term Limits Amendment set forth above or;
"(d) fails to vote in favor of all votes bringing the proposed Congressional Term
Limits Amendment set forth above before any committee or subcommittee of the respective
house upon which he or she serves or;
"(e) fails to reject any attempt to delay, table or otherwise prevent a vote by the
full legislative body of the proposed Congressional Term Limits Amendment set forth
above or;
"(f) fails to vote against any proposed constitutional amendment that would establish
longer term limits than those in the proposed Congressional Term Limits Amendment
set forth above regardless of any other actions in support of the proposed Congressional
Term Limits Amendment set forth above or;
"(g) sponsors or cosponsors any proposed constitutional amendment or law that would
increase term limits beyond those in the proposed Congressional Term Limits Amendment
set forth above or;
"(h) fails to ensure that all votes on Congressional Term Limits are recorded and
made available to the public."
Footnote 4
The pledge, contained in §18(3), reads:
"I support term limits and pledge to use all my legislative powers to enact the proposed
Constitutional Amendment set forth in the Term Limits Act of 1996. If elected, I pledge
to vote in such a way that the designation `DISREGARDED VOTERS' INSTRUCTION ON TERM
LIMITS' will not appear adjacent to my name."
Footnote 5
Section 19(5) permits a voter to appeal to the Missouri Supreme Court a determination
that a statement should not be placed next to a candidate's name, and §19(6) allows
a candidate to appeal to the State's highest court a determination that such a statement
should be printed. In either case, clear and convincing evidence is required to demonstrate
that the statement does not belong on the ballot adjacent to the candidate's name.
The remainder of Article VIII provides for automatic repeal of the Article should
the specified Congressional Term Limits Amendment be ratified, §20; exclusive jurisdiction
of challenges to the Amendment in the Supreme Court of Missouri, §21; and severance
of "any portion, clause, or phrase" of Article VIII that is declared invalid, §22.
Footnote 6
Although respondent intended to run for Congress when he filed suit, under Missouri
law he could not formally file a declaration for candidacy until February 1998. App.
25-26.
Footnote 7
See League of Women Voters of Me. v. Gwadosky, 966 F. Supp. 52 (Me. 1997); Donovan
v. Priest, 931 S. W. 2d 119 (Ark. 1996).
Footnote 8
While the appeal was pending, respondent Gralike withdrew from the 1998 election
and respondent Harmon, a nonincumbent candidate in the 2000 Republican congressional
primary in the Seventh District of Missouri, intervened as an appellee. In view of
Harmon's participation, there is no contention that this case is moot. See Storer
v. Brown, 415 U. S. 724, 737, n. 8 (1974).
Footnote 9
Although Judge Hansen, dissenting in part, thought that §§17 through 19 should be
severed, leaving the rest of Article VIII intact, the majority declined to do so.
191 F. 3d, at 926, n. 12. Petitioner does not contend here that any parts of Article
VIII should be severed if found unconstitutional, but rather urges us to uphold the
provision "in its entirety." Reply Brief for Petitioner 1-2.
Footnote 10
See Miller v. Moore, 169 F. 3d 1119 (CA8 1999) (Nebraska initiative invalidated on
Article V and right-to-vote grounds); Barker v. Hazeltine, 3 F. Supp. 2d 1008 (SD
1998) (South Dakota initiative invalidated on Article V, First Amendment, Speech or
Debate Clause, and due process grounds); League of Women Voters of Me. v. Gwadosky,
966 F. Supp. 52 (Me. 1997) (Maine initiative invalidated on Article V grounds); Bramberg
v. Jones, 20 Cal. 4th 1045, 978 P. 2d 1240 (1999) (California initiative invalidated
on Article V grounds); Morrissey v. State, 951 P. 2d 911 (Colo. 1998) (Colorado initiative
invalidated on Article V and Guarantee Clause grounds); Simpson v. Cenarrusa, 944
P. 2d 1372 (Idaho 1997) (Idaho initiative invalidated on Speech or Debate Clause and
state constitutional grounds, but did not violate Article V); Donovan v. Priest, 326
Ark. 353, 931 S. W. 2d 119 (1996) (in preelection challenge, Arkansas initiative invalidated
on Article V grounds); In re Initiative Petition No. 364, 930 P. 2d 186 (Okla. 1996)
(Oklahoma initiative invalidated on Article V and state constitutional grounds).
Footnote 11
Brief for Petitioner 25, and n. 37; see Reply Brief for Petitioner 4.
Footnote 12
Brief for Petitioner 28, 38; Reply Brief for Petitioner 4, 8.
Footnote *
* Justice Souter does not join this Part of the Court's opinion.
Footnote 13
Brief for Petitioner 10-17.
Footnote 14
For example, the Provincial Congress of North Carolina passed the following instruction
on April 12, 1776: "Resolved, That the Delegates for this Colony in the Continental
Congress be empowered to concur with the Delegates of the other Colonies in declaring
Independency, and forming foreign alliances, reserving to this Colony the sole and
exclusive right of forming a Constitution and Laws for this Colony ... ." 5 American
Archives 860 (P. Force ed. 1844).
Footnote 15
Brief for Professor Kris W. Kobach as Amicus Curiae 5, 13; see Brief for Petitioner
14, n. 13. But see 1 Annals of Cong. 744 (1789) (remarks of Rep. Wadsworth) ("I have
known, myself, that [instructions] have been disobeyed, and yet the representative
was not brought to account for it; on the contrary, he was caressed and re-elected,
while those who have obeyed them, contrary to their private sentiments, have ever
after been despised for it")
Footnote 16
Of course, whether the members of a representative assembly should be bound by the
views of their constituents, or by their own judgment, is a matter that has been the
subject of debate since even before the Federal Union was established. For instance,
in his classic speech to the electors of Bristol, Edmund Burke set forth the latter
view:
"To deliver an opinion is the right of all men; that of constituents is a weighty
and respectable opinion, which a representative ought always to rejoice to hear; and
which he ought always most seriously to consider. But authoritative instructions;
mandates issued, which the member is bound blindly and implicitly to obey, to vote,
and to argue for, though contrary to the clearest conviction of his judgment and conscience,
these are things utterly unknown to the laws of this land, and which arise from a
fundamental mistake of the whole order and tenor of our constitution." The Speeches
of the Right Hon. Edmund Burke 130 (J. Burke ed. 1867).
Footnote 17
Brief for Petitioner 28; see also id., at 38.
Footnote 18
Petitioner once shared our belief, when, in deposition testimony before the District
Court, she admitted that Article VIII does not regulate the time, place, or manner
of elections. App. 58.
Footnote 19
That much, apparently, also seemed clear to many Members of Congress operating under
Article VIII or similar label laws adopted by other States, who consequently tailored
their behavior to avoid the ballot designations. For example, in 1997, the House of
Representatives voted on 11 different proposals to adopt a term limits amendment to
the Constitution; 7 of those proposals were dictated by voter initiatives in 7 different
States. Representative Blunt of Missouri introduced the Article VIII version to "ensure
that members of the Missouri delegation have the ability to vote for language that
meets a verbatim test of [the] Missouri Amendment" and thereby avoid "the scarlet
letter provision." 143 Cong. Rec. H494 (Feb. 12, 1997). However, because each of the
state initiatives provided a sanction similar to the ballot labels included in Article
VIII, some Representatives explained that they were constrained to vote only for the
version endorsed by the voters of their States, and to vote against differing versions
proposed by congressional members from other States, even though they were supportive
of term limits generally. See, e.g., id., at H486 (remarks of Rep. Hutchinson) ("I
will vote against the bill of the gentleman from Florida [Mr. McCollum], not because
I am opposed to term limits but because this particular resolution does not comply
with the term limit instructions approved by the voters and the people of Arkansas");
id., at H490 (remarks of Rep. Crapo) ("Last Congress I supported the McCollum term
limits bill that, as I said, supported a 12-year term limit. However, in this Congress
I must oppose this bill because of the initiative passed by the people of the State
of Idaho which requires me to oppose any term limits measure that does not have the
same set of term limit conditions that are included in the initiative that was passed
in the State"). As Representative Frank of Massachusetts put it, "[e]very State's
Members get to vote on their State's term limits so they make them feel better and
they do not get the scarlet letter." Id., at H487. Consequently, the most popular
proposal for such an amendment, that of Representative McCollum of Florida, received
217 votes, 10 fewer than it had in the preceding Congress. Id., at H511. As for the
Missouri version, it suffered a 353-to-72 defeat. Id., at H497.
Footnote 20
At the margins, the parties have fought over whether the Elections Clause is even
applicable because it is a grant of power to "each State by the Legislature thereof"
and Article VIII is the product of referendum. Compare Brief for Petitioner 38, n.
46, with Brief for Respondents 12-13, n. 8. Of course, "[w]henever the term `legislature'
is used in the Constitution, it is necessary to consider the nature of the particular
action in view." Smiley v. Holm, 285 U. S. 355, 366 (1932). Nevertheless, we need
not delve into this inquiry, as it is clear, for the reasons stated in the text, that
Article VIII is not authorized by the Elections Clause.
In discussing the Elections Clause issue, respondents have also relied in part on
First Amendment cases upholding "time, place, and manner" regulations of speech. Brief
for Respondents 13-14. Although the Elections Clause uses the same phrase as that
branch of our First Amendment jurisprudence, it by no means follows that such cases
have any relevance to our disposition of this case.
FOOTNOTES
Footnote *
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.