OCTOBER TERM, 2000
Syllabus
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. 518-527.
(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
511
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.
Crown inshield, 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. 518-519.
(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. 519-522.
(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
512
Syllabus
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 processthe 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. 522-527.
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,
post, p. 527. THOMAS, J., filed an opinion
concurring in part and concurring in the judgment,
post, p.
530. REHNQUIST, C. J., filed an opinion concurring in the judgment,
in which O'CONNOR, J., joined,
post, p. 530.
James R. McAdams argued the cause for petitioner.
With him on the briefs were
Jeremiah W (Jay) Nixon,
Attorney General of Missouri,
James R. Layton, State
Solicitor, and
Tina M. Crow Halcomb and J.
Eric Durr,
Assistant Attorneys General.
Jonathan S.
Franklin argued the cause for
respondents.
With him on the brief were H. Christopher Bartolomucci and
Arthur A. Benson II.
Deputy Solicitor General Underwood argued the cause for
the United States as
amicus curiae urging affirmance.
513
With her on the brief were Solicitor General Waxman, Assistant
Attorney General Ogden, Paul R. Q. Wolfson, and Douglas N. Letter.
*
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 VIII 1 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.
*Briefs of
amici curiae urging reversal were filed for
the State of N ebraska by
Don Stenberg, Attorney General,
and
L. Steven Grasz, Deputy Attorney General; for the
Initiative and Referendum Institute by
Patrick T. O'Brien
and
John M. Boehm; for Missouri Term Limits by
Stephen J.
Safranek; and for U. S. PIRG Education
Fund by
David Jonathan Fine.
Briefs of
amici curiae urging affirmance were filed for
the James Madison Center for Free Speech by
James Bopp, Jr.,
and
Heidi K. Meyer; and for the League of Women Voters of
the United States et al. by
Louis R. Cohen and
Jonathan J.
Frankel.
Kris W Kobach, pro se, filed a brief as amicus curiae.
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.
514
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 anyone of eight legislative acts in support of the
proposed amendment.3 Section 18 provides that the statement
"DE-
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 threefourths of the several States."
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
515
CLINED 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
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."
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."
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 rati-
516
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 6 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 simi-
fied, § 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.
6 Although Gralike 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.
517
lar 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
7See
League of Women Voters of Me. v.
Gwadosky,
966 F. Supp. 52 (Me. 1997);
Donovan v.
Priest, 326
Ark. 353, 931 S. W. 2d 119 (1996).
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).
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.
518
Although the Court of Appeals' decision is consistent with the
views of other courts that have passed on similar voter
initiatives,lO 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
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 1088 (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, 130 Idaho 609, 944 P. 2d 1372
(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).
11 Brief for Petitioner 25, and n. 37; see Reply Brief for
Petitioner 4. 12 Brief for Petitioner 28, 38; Reply Brief for
Petitioner 4, 8.
519
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
*JU8TICE SOUTER does not join this Part of the Court's
opinion.
520
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
13 Brief for Petitioner 10-17.
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).
15 Brief for Professor Kris W. Kobach as
Amicus Curiae 5,
13; see Brief for Petitioner 14, n. 13. But see 1 Annals of Congo
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").
521
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 Congo 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 deliber-
522
ative 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
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).
523
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 cor-
17 Brief for Petitioner 28; see also id., at 38.
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.
524
rupt 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
525
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
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
Congo Rec. H494 (Feb. 12, 1997). However, because each of the state
initiatives provided
526
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.2o
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.
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]herever 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. Brieffor Respondents 13-14. Although
the Elections Clause uses the same phrase as that branch of our
First Amendment
527
Accordingly, the judgment of the Court of Appeals is
affirmed.
It is so ordered.
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.
jurisprudence, it by no means follows that such cases have any
relevance to our disposition of this case.
528
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.
529
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
Congo 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.,
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
Congo 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
530
REHNQUIST, C. J., concurring in judgment
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 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 522. Nonetheless, the parties conceded
the validity of this premise, see Brief for Petitioner 25-26; Brief
for Respondents 12-13, 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
531
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
*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.
532
REHNQUIST, C. J., concurring in judgment
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 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.
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