U.S. Term Limits, Inc. v. Hill

George K. Cracraft, Special Chief Justice, concurring in part, dissenting in part. I concur with the results reached in the majority opinion on the issues of justiciability, the enacting clause, the constitutionality of limitations on state elected officials, severability, and terms of service to be counted. I cannot, however, agree that the restrictions on members of the United States Congress violate the Qualifications Clauses of Article I, Sections 2 and 3 of the United States Constitution. I do not view the provisions of Amendment 73 to the Arkansas Constitution as raising a “qualifications” issue, but rather a ballot access issue to be measured by the First and Fourteenth Amendments to the United States Constitution.

Unlike Sections 1 and 2 of Amendment 73 (which apply to state elected officials), Section 3 (which applies to members of Congress) does not impose an absolute bar on incumbent sue-cession. Instead, Section 3 merely makes it more difficult for an incumbent to be elected. Under our liberal write-in laws, an incumbent can be elected to congressional office and, if elected, serve the term for which elected. An incumbent United States Representative or Senator can also serve in the Congress under appointment to fulfill an unexpired term. In neither case would his or her qualifications to serve be in anywise affected by Amendment 73. In my view, a person is qualified within the meaning of Article I of the United States Constitution if permitted to serve if elected. While an incumbent congressional candidate’s ballot access is limited, his or her qualifications to serve if elected to Congress are not affected.

The United States Supreme Court has never squarely faced this issue. However, two United States Courts of Appeals have recognized the distinction I would make between ballot access restrictions and those qualifications mentioned in Article I, and I find their decisions persuasive. See Hopfmann v. Connolly, 746 F.2d 97 (1st Cir. 1984), vacated in part on other grounds, 471 U.S. 459 (1985), and Joyner v. Mofford, 706 F.2d 1523 (9th Cir. 1983). In Hopfmann, the court stated:

Plaintiffs next argue that the application of the 15 per cent rule [restricting which candidates’ names would appear on the Democratic primary ballot to those who received at least 15 percent of the vote at the party’s convention] transgresses Article I, Section 3, Clause 3 of the Constitution in that it unlawfully adds a qualification for the office of United States Senator beyond the age, citizenship and residency requirements of the Constitution.

As the defendants have correctly pointed out, the 15 percent rule does not add a qualification that precludes Hopfmann from obtaining the office of United States Senator. The rule merely adds a restriction on who may run in the Democratic party primary for statewide political office and potentially become the party nominee. The cases cited by plaintiffs to the effect that neither Congress nor the states can add to the constitutional qualifications for office are inapposite. Cf. Powell v. McCormack, 395 U.S. 486, 547, 551 , 89 S.Ct. 1944, 1977, 1979 , 23 L.Ed.2d 491 (1969).

Unlike the additional requirements involved in the cases cited by plaintiffs, failure to comply with the 15 percent rule does not render a candidate ineligible for the office of United States Senator. An individual is free to run as the candidate of another party, as an independent, or as a write-in candidate. If he is elected and meets the requirements of Article I, Section 3, he will be qualified to take office. As the Wyoming Supreme Court stated in State v. Crane, 197 P.2d 864, 871 (Wyo. 1948), the test to determine whether or not the “restriction” amounts to a “qualification” within the meaning of Article I, Section 3, is whether the candidate “could be elected if his name were written in by a sufficient number of electors!'

746 F.2d at 102-03 (emphasis added).

In my view, the Qualifications Clauses protect only the right of a person who meets the qualifications of age, citizenship, and residency to be seated in the Congress if elected. They do not address the right of any person to seek election or that of his constituents to vote for the person of their choice. Indeed, the Qualifications Clauses themselves begin with the phrase “[n]o person shall be” a representative or senator, a choice of words that, to my mind, clearly demonstrates that the Qualifications Clauses are addressed to service in the Congress. The rights to seek election and to vote for the candidate of one’s choice are afforded the protection of the First and Fourteenth Amendments against ballot access restrictions that are too severe when measured by the balancing test set out in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi,__U.S._, 112 S.Ct. 2059 (1992). Nor should the odds for or against the successful waging of a write-in campaign lead to the conclusion that Section 3 of Amendment 73 is a “qualification” in “ballot access clothes.” Rather, such odds should be merely one factor considered along with all others in the balancing process which pits candidates’ and voters’ rights against the state’s interest in fair and open elections, free of perceived evils of entrenched incumbency.

In our deliberations, we have applied that balancing test to Sections 1 and 2 of Amendment 73 and found that the state’s interest in preventing the perceived evils outweighs the First and Fourteenth Amendment rights of state level candidates and voters therefor. In my opinion, since we have decided that Amendment 73’s lifetime bar on state level incumbents passes Fourteenth Amendment muster, it must necessarily follow that the less stringent restrictions placed on members of Congress easily pass this same test.

I would hold that Amendment 73 to the Arkansas Constitution was proposed and adopted in the manner provided by law, is not constitutionally infirm in any respect, and is valid and enforceable in its entirety.