Amicus Curiae Brief — US Term Limits, Inc. v. Thornton

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Se ve 6

oy a

> Nos. 93-1456 and 93-1828

:

In the

Supreme Court of the United States

October Term, 1994

+

U.S. TERM LIMITS and WINSTON BRYANT,

in his official capacity as Attorney General,

Petitioners,

v.

RAY THORNTON, et al., and BOBBIE E. HILL, et al.,

Respondents.

+

On Writ of Certiorari to the

Supreme Court of Arkansas

—

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE AND BRIEF AMICUS CURIAE

OF CITIZENS FOR TERM LIMITS AND PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS,

\ WINSTON BRYANT AND U.S. TERM LIMITS

>>

JOHN M. GROEN RONALD A. ZUMBRUN

Pacific Legal Foundation ANTHONY T. Caso

10800 N.E. 8th Street, * DEBORAH J. LA FETRA

Suite 325 *Counsel of Record

Bellevue, Washington 98004 _ Pacific Legal Foundation

Telephone: (206) 635-0970 2151 River Plaza Drive, Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amici Curiae

Nos. 93-1456 and 93-1828

_

In the

Supreme Court of the United States

October Term, 1994

i

U.S. TERM LIMITS and WINSTON BRYANT,

in his official capacity as Attorney General,

Petitioners,

v.

RAY THORNTON, et al., and BOBBIE E. HILL, et al.,

Respondents.

_——————

Or Writ of Certiorari to the

Supreme Court of Arkansas

—<—____———______—

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE OF CITIZENS FOR TERM

LIMITS AND PACIFIC LEGAL FOUNDATION IN

SUPPORT OF PETITIONERS, WINSTON BRYANT

AND U.S. TERM LIMITS

_——————

Pursuant to Supreme Court Rule 37, Citizens for Term

Limits and Pacific Legal Foundation respectfully move this

Court for leave to file the attached amicus curiae brief in

support of petitioners, Winston Bryant and U.S. Term

Limits. Consent to the filing of this brief has been granted

by counsel for petitioners State of Arkansas and U.S. Term

Limits, and has been lodged with the Clerk of this Court.

2

Respondents Dale Bumpers, Republican Party of Arkansas,

and Americans for Term Limits have also granted consent to

the filing of this brief which has been lodged with the Clerk

of this Court. Respondent Hill has granted written consent

to the filing of this brief and the letter of consent has been

lodged with the Clerk of this Court. Respondent Thornton

and other respondents have withheld consent, necessitating

the filing of this motion.

IDENTITY AND INTERESTS OF AMICI CURIAE

Pacific Legal Foundation is a nonprofit, tax-exempt

corporation organized under the laws of the State of

California for the purpose of engaging in litigation in matters

affecting the public interest. Policy is set by a Board of

Trustees composed of concerned citizens, the majority of

whom are attorneys. PLF’s Board evaluates the merits of

any contemplated legal action and authorizes such legal

action only where the Foundation’s position has broad

support within the general community. PLF’s Board has

authorized the filing of an amicus curiae brief in this matter.

Citizens for Term Limits (CTL) is the parent

organization of the campaign committee that spearheaded the

petition drive and campaign support for California's

Proposition 164. Proposition 164, like Arkansas’

Amendment 73, restricts ballot access of California's

congressional incumbents after those incumbents have served

for a set number of terms in the House of Representatives

and the Senate of the United States. It is Citizens for Term

Limits’ policy to support congressional term limits in

California as well as all other states. Citizens for Term

Limits has intervened in the case challenging Washington's

Initiative 573, now pending in the Ninth Circuit Court of

Appeals (Thorsted v. Gregoire, Consolidated Docket

Nos. 94-35222, 94-35223, 94-35267, 94-35285, 94-35287,

3

94-35289, cert. denied sub nom. Citizens for Term Limits v.

Foley, Docket No. 93-1833 (June 20, 1994)).

Pacific Legal Foundation and Citizens for Term

Limits are submitting this brief because they believe their

public policy perspective and litigation experience in the

ballot access restriction arena will provide an additional

viewpoint with respect to the issues presented. PLF and

CTL submitted an amicus brief in support of the petition

filed in this case. PLF has also participated in numerous

other cases before this Court including Legislature of the

State of California v. Eu, 54 Cal. 3d 492 (1991), cert.

denied, __U.S. __, 117 L. Ed. 2d 516 (1992), Chisom v.

Roemer, 501 U.S. ___, 115 L. Ed. 2d 348 (1991), League

of United Latin American Citizens v. Attorney General of

Texas, 501 U.S. __, 115 L. Ed. 2d 379 (1991), and Bethel

School District No. 403 v. Fraser, 478 U.S. 675 (1986).

PLF and Citizens for Term Limits believe the

Arkansas Supreme Court incorrectly analyzed the relationship

between Amendment 73 and Article I, Sections 2 and 3, of

the United States Constitution. The minimal qualifications

imposed by Sections 2 and 3 of age, residency, and

citizenship are simple, straightforward qualifications that a

candidate either possesses or not. Amendment 73, instead of

disqualifying certain incumbents from serving, only restricts

certain incumbents’ names from the ballot for the same office

for which they previously served. This is a question of

ballot access, not qualifications. When analyzed under this

Court’s ballot access cases utilizing the framework of the

First and Fourteenth Amendments, Amendment 73 must be

upheld as constitutional. These points may not be adequately

covered by the parties whose interests may not extend

beyond the Arkansas borders. Citizens for Term Limits and

Pacific Legal Foundation, concerned with preserving ballot

access restrictions for California’s 54 congressional

incumbents and familiar with California's experience with

state term limits for the past four years, are uniquely situated

4

to analyze the issues involved in this case and to bring a

wider scope of policy considerations to this Court.

For the foregoing reasons, Citizens for Term Limits

and Pacific Legal Foundation request that their motion to file

the amicus curiae brief which follows be granted.

DATED: August 15, 1994.

Respectfully submitted,

JOHN M. GROEN RONALD A. ZUMBRUN

Pacific Legal Foundation ANTHONY T. Caso

10800 N.E. 8th Street, * DEBORAH J. La FETRA

Suite 325 *Counsel of Record

Bellevue, Washington 98004 _— Pacific Legal Foundation

Telephone: (206) 635-0970 2151 River Plaza Drive, Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

By

DEBORAH J. LA FETRA

Attorneys for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED ................ ii

INTERESTS OF AMICI CURIAE ................. 1

SUMMARY OF ARGUMENT ................... 2

206 eee eee en» 6:6 een. 68 a how fb 2

I. ARTICLE I, SECTIONS 2 AND 3 DO NOT

PREVENT ENACTMENT OF BALLOT ACCESS

RESTRICTIONS ON LONGTIME INCUMBENTS ... 3

A. Ballot Access Restrictions on Longtime

Incumbents Are Not Article I Qualifications ..... 4

B. Powell v. McCormack Does Not Forbid

State-Imposed Ballot Access Restrictions

on Longtime Incumbents ................. 9

C. The Ballot Access Restrictions

in Amendment 73 Must Be Upheld .......... 15

Ill. EXPERIENCE HAS SHOWN THAT BALLOT ACCESS

RESTRICTIONS APPLIED TO LEGISLATIVE

INCUMBENTS DO NOT DESTROY

REPRESENTATIVE GOVERNMENT .......... 22

GREE Boseceeneceonesevessvesneses 27

il

TABLE OF AUTHORITIES CITED

Page

CASES

Anderson v. Celebrezze, 460 U.S. 780 (1983) ..... 15,20-22

Bullock v. Carter, 405 U.S. 134 (1972) ......... 15-16,21

Burdick v. Takushi, 504 U.S. __,

a 21-22

Clements v. Fashing, 457 U.S. 957 (1982) ......... 16,21

Hopfmann v. Connolly, 746 F.2d 97 (ist Cir. 1984),

vacated on other grounds, 471 U.S. 459 (1985) ....... 7-8

Hopfmann v. Connolly, 769 F.2d 24 (ist Cir. 1985) ...... 7

Legislature v. Eu, 54 Cal. 3d 492, 816 P.2d

1309 (1991), cert. denied, US. _,

& 17-18,20,22-23

Miyazawa v. City of Cincinnati, 825 F. Supp.

ee et te ees eee ane 66 22

Nixon v. United States, 506 U.S. _, 122 L. Ed. 2d

Aa heen nade 0 6 ope deeees6hbee + 10

O’Sullivan v. Swanson, 257 N.W. 255 (Neb. 1934) ...... 4

Powell v. McCormack, 395 U.S. 486 (1969) ......... 9-12

Public Citizen, Inc. v. Miller, 813 F. Supp.

821 (N.D. Ga.), aff'd, 992 F.2d 1548

eee eek ewe cee ecoeeees 8

Rivera-Rodriguez v. Popular Democratic

DT WUD cece eececoevvescecees 16

ili

Page

State ex rel. Maloney v. McCartney,

159 W. Va. 513, 223 S.E.2d 607,

appeal dismissed for want of a federal

question sub nom., Moore v. McCartney,

Ge es ED acco ce rctecccccscccces 17-18

Stiles v. Blunt, 912 F.2d 260 (8th Cir.

1990), cert. denied, 499 U.S. 919 (1991) ........... 16

Storer v. Brown, 415 U.S. 724 (1974)... .......545. 6-8

United States v. City of Houston,

800 F. Supp. 504 (S.D. Tex. 1992) .........5455- 19

Zielasko v. State of Ohio, 873 F.2d 957

ee ee 16

UNITED STATES CONSTITUTION

TS GRRE Pe ee eee yee eT eee ey 2,6,15

reer rrr Pe Pe ee eT 3-4,27

SEC ic cimisnucusdsnececsese s0e tenes 4

a eee Sere ee ee PTT ITT 3-4,8,27

Pe eae errr Te tere 4

Oe . sce nck Cale 0 00's eG obs KO hak aman passim

De wevdone se tdutnnscedes Ceecnes 6s. 0EES 10

© Beret rrr rrr rere 10

iV

Page

MISCELLANEOUS

Barber, Election "94: Insurance

Commission, 25 Cal. J. (May 1994) .............. 24

Block, The Term-Limit Babies’ First

PE 6 ccc cece cece ccves 26

Borland, Election "94: Lieutenant Governor,

PEE owes edcovbebocescoseces 24

Farrand, The Records of the Federal

Convention of 1787 (1966) .................. 11-13

Election "94: Assembly, 25 Cal. J.

DPPC ER GE Cd es Ceecevecosecsnesess 23

Election "94: State Senate, 25 Cal. J.

DGG hesee@eeesvnncerestovcccsvecs 24

Federalist No. 37 (Rossiter ed., 1961) .............. 11

Dt i oe staween et wedadsabmeeaseesaus 11

Ee Pere ee ee 2 ee ee a a 11

A a ay 10

Hill-Holtzman, Seating Now Available:

It Used to be That the Only Route

to a Westside Assembly Job Went

Through the Berman-Waxman

Machine. Not Anymore, Los Angeles

, SS TEEPE eee 25

Humphrey, Put a Limit on Congressional

Terms, U.S.A. Today, Apr. 4, 1990 ............... 14

Page

Levy, Can They Throw the Bums Out:

The Constitutionality of State-Imposed

Congressional Term Limits, 80 Geo. L. J.

SDE CIDTE) oc ccc ccc cere ese resecsesecees

Politics in America, 1994: The 103d

Congress (CQ Press 1993) ... 2... 0 eee eee ees

Pollard, Election "94: Superintendent

of Public Instruction, 25 Cal. J.

(May 1994) 0.0... ccc ccc reer ener enes

Pollard, Election "94: U.S. Senate,

25 Cal. J. (May 1994)... 2... ee eee

Scott, Election "94: Governor, 25 Cal. J.

1 Oe bo )

eat dghesserccssersece

Skelton, Legislators Try Something New:

Action, Los Angeles Times, Sept. 13, 1993 .........

Starkey, Election "94: Attorney General,

25 Cal. J. (May 1994)... 0... eee ee eee eee

Starkey, Election "94: Secretary of State,

25 Cal. J. (May 1994)... 2... eee eee eee

To Be Continued: A Study of Democratic

Women’s Races for the House of Representatives

in 1992, Reprint of Stanton-Hughes

Prepared for EMILY’S List (1993) .......--+-++>:

Weintraub, After the Elections, State

Assembly: 28 Newcomers Bring a Sense

of Purpose, Los Angeles Times,

en | rrr rr re eee eee

vi

Page

Women in the United States Senate, Senate

Historical Office (from U.S. Congress,

House, Women in Congress, H. Doc. 238,

1Oist Come. 26 Seas. 1991)... ccc ccc e eee 19

Wood, The Creation of the American Republic,

1776-1787 (Univ. of North Carolina Press 1969) 3

Woutat, State’s Help for Business Seen

as Watershed Shift, Los Angeles Times,

26

| re re ee

Nos. 93-1456 and 93-1828

—>

In the

Supreme Court of the United States

October Term, 1994

—

U.S. TERM LIMITS and WINSTON BRYANT,

in his official capacity as Attorney General,

Petitioners,

v.

RAY THORNTON, et al., and BOBBIE E. HILL, et al.,

Respondents.

=

On Writ of Certiorari to the

Supreme Court of Arkansas

+

BRIEF AMICUS CURIAE

OF CITIZENS FOR TERM LIMITS

AND PACIFIC LEGAL FOUNDATION IN

SUPPORT OF PETITIONERS, WINSTON BRYANT

AND U.S. TERM LIMITS

—o=

INTERESTS OF AMICI CURIAE

The interests of amici curiae are set forth in the

preceding motion and are adopted herein.

2

—+

SUMMARY OF ARGUMENT

At issue in this case are the provisions of Arkansas’

Amendment 73 providing that Arkansas citizens who have

had the honor of serving their state in Congress for a certain

number of years must henceforth serve in that capacity only

if elected by write-in votes should be upheld. Amendment

73 restricts ballot access to multiterm congressional

incumbents, but permits such incumbents to serve in their old

seats if elected as write-in candidates. Thus, Amendment 73

must be viewed as a ballot access restriction, not as a

qualification such as those enumerated in Article I of the

United States Constitution. Under the ballot access cases

decided by this Court, Amendment 73 does not

unconstitutionally infringe on First or Fourteenth Amendment

rights. Moreover, California’s four years of experience with

absolute term limits on members of the state Legislature has

demonstrated that such limitations do not spell the end of

representative government. For the reasons set forth below,

Amendment 73 should be upheld in its entirety and the

Arkansas Supreme Court decision should be reversed to the

extent it conflicts with such a holding of constitutionality.

+

ARGUMENT

Without question, the issue of congressional "term

limits" is the single most important governance issue to come

before this Court in decades. In 1992, no less than 14 states

voted (by margins ranging from 52% to 77%) to enact some

form of ballot access restriction on the long-term incumbents

in Congress. The national groundswell of support for this

method of reining in unaccountable political careerists shows

the mandate of the People for change in the halls of

Congress. Despite the clear election victories for "term

3

limit" proponents, opponents of the measures have taken

their complaints to court. Ruling without the clear guidance

of this Court on this issue, courts have erred on the side of

the status quo, so far declaring measures affecting

congressional elections constitutionally invalid.

I

ARTICLE I, SECTIONS 2 AND 3 DO NOT

PREVENT ENACTMENT OF BALLOT ACCESS

RESTRICTIONS ON LONGTIME INCUMBENTS

This case involves state elections for members of

Congress. Because there are no national elections for

congressional office, each state is responsible for conducting

elections to determine which of its citizens will be granted

the honor and privilege of serving the state in the national

legislature. In the House of Representatives, in which each

State elects a number of representatives proportionate to the

State’s population, the representatives are expected to further

their states’ interests in Congress. In the Senate, in which no

one state can overwhelm another by sheer force of numbers,

the national interest is expected to prevail. This theory was

at the heart of the Connecticut Compromise, which brought

the former British colonies together as the United States of

America under our Constitution. Wood, The Creation of the

American Republic, 1776-1787 558 (Univ. of North Carolina

Press, 1969). The delicate balance of federal power and

state power established by our Founding Fathers provides the

backdrop against which the current controversy must be

analyzed.

The question presented in this case is whether ballot

access restrictions which prevent multiterm congressional

incumbents from appearing on the ballot violate Article I,

Sections 2 and 3, of the United States Constitution. Section

2, regarding qualifications for the House of Representatives

States:

4

No Person shal be a Representative who shall

not have attained to the Age of twenty five

Years, and been seven Years a Citizen of the

United States, and who shall not, when elected,

be an Inhabitant of that State in which he shall be

chosen.

U.S. Const. Art. I, § 2, cl. 2. Section 3, regarding

qualifications for the United States Senate states:

No Person shall be a Senator who shall not have

attained to the Age of thirty Years, and been nine

Years a Citizen of the United States, and who

shall not, when elected, be an Inhabitant of that

State for which he shall be chosen.

U.S. Const. Art. I, § 3, cl. 3. These two clauses codify

what the Framers thought to be the minimum necessary

requirements to assure mature, loyal, and patriotic

legislators.

A. Ballot Access Restrictions on Longtime

Incumbents Are Not Article I Qualifications

The threshold, and most important, question is whether

the ballot access restrictions at issue in this case could rise to

the level of a qualification. The distinction between ballot

access restrictions and qualifications is of obvious

constitutional import. Because Amendment 73 permits

multiterm incumbent members of Congress to run for their

seats as write-in candidates, the court below accuses the

drafters of Amendment 73 of attempting to "dress eligibility

to stand for Congress in ballot access clothing." U.S. Term

Limits, Inc. v. Hill, 316 Ark. 251, 266, 872 S.W.2d 349,

357 (1994). The court misses the point. Amendment 73 was _

not drafted to circumvent the Constitution, but to comply

with it. The drafters were aware that term limit opponents

claimed that such limits violate Article I, Sections 2 and 3.

5

Therefore, the initiative-amendment was drafted to avoid the

constitutional problem. This was not an attempt to do

indirectly what cannot be done directly, but rather an attempt

to achieve admirable results in a constitutionally valid

manner.

The Arkansas Supreme Court explicitly recognized that

"an ineligible congressman under Amendment 73 is not

totally disqualified and might run as a write-in candidate for

Congress or receive a gubernatorial appointment to fill a

vacancy in the same body." /d. Prior to the issue raised by

this case, qualifications were defined to be absolute: either

one may serve in Congress or one may not. If a potential

candidate for the U.S. Senate is only 27 years old, no

amount of brilliance, desire, or campaign warchest will

permit her to serve her state in that capacity. The same is

true for potential candidates who recently immigrated to this

country or who reside outside the borders of the state they

wish to represent. Here, however, even the court that struck

down Amendment 73 concedes that the provisions of that

amendment are not absolute. Once the court ventured

beyond the absolute definition of a qualification, it trod upon

the treacherous ground of line-drawing. At what point does

a ballot access restriction which makes it more difficult to

win an election become a qualification? The court below

found that "[faint] glimmers of opportunity" to win an

election transformed a ballot access restriction into a

qualification. The adverse repercussions of this decision, if

allowed to stand, will reach far into the election schemes of

all states.

' Because Amendment 73 is a ballot access restriction, this

Court need not address the issue which may arise in cases

involving absolute term limits: whether the Qualifications

Clause is exclusive or whether the states may add to the list.

6

The decisions of this Court upholding numerous ballot

access restrictions that substantially impair the ability of an

individual to win an election strongly suggest that the court

below erred in finding that a less-than-absolute ban on

serving in Congress could be a qualification. Storer vy.

Brown, 415 U.S. 724 (1974), is the only major case decided

by this Court which addresses Article I qualifications in the

context of a ballot access restriction. Storer makes clear that

the denial of ballot access does not establish an additional

qualification. Jd. at 746 n.16. This distinction is based on

the constitutional provision giving states the initial task of

determining the qualifications of voters who will elect

members of Congress. Article I, Section 4, of the United

States Constitution authorizes the states to prescribe "‘[t]he

Times, Places and Manner of holding Elections for Senators

and Representatives.’" Storer, 415 U.S. at 730 (brackets in

original).

[T]he States have evolved comprehensive, and in

many respects complex, election codes regulating

in most substantial ways, with respect to both

federal and state elections, the time, place, and

manner of holding primary and general elections,

the registration and qualifications of voters, and

the selection and qualification of candidates. ...

[T]he rule fashioned by the Court to pass on

constitutional challenges to specific provisions of

election laws provides no litmus-paper test for

separating those restrictions that are valid from

those that are invidious under the Equal

Protection Clause.

Storer, 415 U.S. at 730. In Storer, this Court upheld a

California statute which forbade a ballot position in a general

election to an independent candidate if he or she had

registered affiliation with a political party within one year

prior to the preceding primary election. That statute also

required the candidate to file a nominating petition signed by

7

a number of registered voters of at least 5% of the entire

vote cast in the preceding general election. Storer, 415 U.S.

at 726-27, 733. Storer noted that an independent candidate

need not stand for primary election but must qualify for the

ballot by demonstrating substantial public support in another

way. Other than the alternate means of qualifying to have

his or her name preprinted on the ballot, the qualifications

required of the independent candidate are very similar to, or

identical with, those imposed on party candidates. Storer,

415 U.S. at 733. “It is an absolute bar to candidacy, and a

valid one." Id. at 737 (emphasis added). The same case

specifically rejected a challenge to the regulations based on

Article I, holding such a claim to be “wholly without merit."

Id. at 746 n.16.

Despite the language in Storer, this Court has never

had occasion to explicitly state a test to determine whether a

restriction amounts to a qualification within the meaning of

Article I, Sections 2 and 3. The First Circuit, however,

addressed this definitional problem in Hopfmann v. Connolly,

746 F.2d 97, 103 (ist Cir. 1984), vacated on other grounds,

471 U.S. 459 (1985).’ The plaintiff in that case challenged

a political party rule that only candidates with 15% of the

vote at convention may challenge the convention’s

endorsement in a state primary. Jd. at 99. The court held

that this rule did not add a qualification for office beyond

age, residency, or citizenship. Rather, it adds a restriction

on who may run in the party primary in a statewide election

for federal office and potentially become the party’s

nominee. Jd. at 102. The court emphasized that the

candidate was free to run as a write-in. /d. at 103. The

First Circuit held that the test to determine whether or not

the “restriction” amounts to a “qualification” within the

? On remand, the First Circuit stated that its earlier decision

on this issue remained undisturbed by the Supreme Court.

Hopfmann v. Connolly, 769 F.2d 24, 25 n.1 (ist Cir. 1985).

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.’" Hopfmann, 746 F.2d at 103. This

language is consistent with this Court’s position in Storer.

If Hopfmann had decided that the unsuccessful candidate in

that case had a constitutional right to appear on the ballot,

when the candidate already had a means (although less

appealing) of reaching the voters as a write-in, this would

have greatly expanded the meaning of the Article I, Sections

2 and 3. Neither the plain meaning of the clauses nor this

Court’s interpretation of the clauses in Storer could have led

to a different result in Hopfmann. Just as the regulations

were upheld in Hopfmann and Storer, so too should

Arkansas’ Amendment 73 be upheld as a valid ballot access

regulation.

The Hopfmann case was favorably cited in Public

Citizen, Inc. v. Miller, 813 F. Supp. 821, 832 (N.D. Ga.),

aff'd, 992 F.2d 1548 (11th Cir. 1993). That case arose from

former Senator Wyche Fowler’s loss to Paul Coverdell in a

run-off election. Although Fowler himself did not bring suit,

a “consumer” organization along with four Fowler supporters

sued to overturn Georgia’s “majority rule” statute. /d.

at 824. This statute requires that a candidate must receive a

majority of votes cast (instead of a plurality) to be declared

the winner. Fowler had won a plurality in the general

election but lost the run-off election. Jd. at 823-24.

Addressing the Article I qualifications argument, the court

first noted that, based on Hopfmann’s analysis, Fowler was

not precluded from obtaining the office he sought--he simply

had to participate in the run-off. Public Citizen, 813 F.

Supp. at 832. Moreover, the Public Citizen court found that

the majority vote statute does not violate Article I, Section 3,

because “the majority vote statute is more accurately

interpreted as a method for construing the meaning of the

votes cast." Jd. at 833. That is, it was construed as

regulating the “manner” of elections as provided by Article I,

Section 4, of the Constitution. The requirement of receiving

9

a majority of the votes cast to be elected to the United States

Senate was intended to make it more difficult for a candidate

to win the seat by demanding a showing of broader support

than would be required if a plurality was sufficient to claim

victory. As it turned out, this requirement made it

impossible for former Senator Fowler to win the seat. Id.

at 823-24. Yet the fact that the election regulations were

very harsh when applied to Senator Fowler does not make

those regulations qualifications for office.

An older state case reached the identical conclusion.

In O'Sullivan v. Swanson, 257 N.W. 255 (Neb. 1934), the

Nebraska Supreme Court addressed a statute which

prohibited unsuccessful primary candidates from having their

names placed on the general election ballot for any state or

federal office. The court upheld the law against a challenge

from a candidate whose name was not printed on the ballot

for United States Senate because he had lost at a primary

election for governor during the same election the Senate

primary was held. /d. at 255-56. The court upheld the

Statute because it did not prohibit O’Sullivan from running

for the office: he was permitted to conduct a write-in

campaign. Jd. at 256. Such might have been a strong

practical deterrent to election but, nonetheless, he could run,

and the statute was upheld. Again, the crucial point is that

the election regulation did not create an absolute bar to

service in Congress. The fact that it was extremely difficult

to the candidate to be successful in his campaign, did not

transmute the ballot access regulation into a constitutional

qualification.

B. Powell v. McCormack Does Not

Forbid State-Imposed Ballot Access

Restrictions on Longtime Incumbents

The court below relied principally on this Court’s

decision in Powell v. McCormack, 395 U.S. 486 (1969), to

strike down Amendment 73. Powell involved the refusal of

10

the House of Representatives to seat Adam Clayton Powell,

an elected representative of New York, who had been

accused of wrongfully diverting federal funds to himself, his

wife, and his staff. Jd. at 490. Powell centered on the

authority of the House to exclude Powell under Article I,

Section 5, of the Constitution which provides that “[eJach

House shall be the Judge of the Elections, Returns and

Qualifications of its own Members." Before reaching its

decision, the Court engaged in an extensive review of

historical materials, most of which did not apply to Article

I, Section 5, Clause 1. More than the actual holding of

Powell, the court below relied on the historical review in

striking down Amendment 73.

The court below cited Alexander Hamilton’s statement

in Federalist No. 60 that “qualifications ... are defined and

fixed in the Constitution and are unalterable by the

legislature" to support its conclusion, even though the court

acknowledged that the passage refers only to alterations made

by Congress. Hill, 316 Ark. at 264, 872 S.W.2d at 356.

The context of the Federalist Papers was an explanation of

the federal government, all its institutions and powers.

Federalist No. 60 is no exception. This Court in Powell,

395 U.S. at 539, relied on this passage for the conclusion

that the House of Representatives could not add a

qualification which would prevent a duly elected member of

the body from taking his seat. This Court recently reiterated

the narrow holding of that case, noting that Powell stands for

the proposition that "[t]he decision as to whether a member

satisfied these qualifications was placed with the House, but

the decision as to what these qualifications consisted of was

not." Nixon v. United States, 506 U.S. __, 122 L. Ed. 2d

1, 14 (1993) (emphasis in orginal).

Although the court below found “illuminating” the

historical recitations in Powell (Hill, 316 Ark. at 265,

872 S.W.2d at 356), Powell’s description of the historical

forces at work is incomplete. For example, Madison’s

11

recognition that some members of Congress might achieve

perpetual reelection (in Federalist No. 55) does not alter his

overall view that frequent elections would result in frequent

turnover: “A frequent change of men will result from a

frequent return of elections; and a frequent change of

measures from a frequent change of men." Federalist

No. 37, at 227 (Rossiter ed., 1961). Madison was a strong

proponent of frequent elections for this very reason.

Notwithstanding the possibility of long-term service in the

Congress, Madison believed frequent turnover strongly

benef.ved the new repuc’c.

The Framers sought to solve the dilemma of expertise

versus interaction with constituents by creating two houses--

one with a two year term and one with a six year term. The

house designed by the Framers to be most responsive to the

People (the House of Representatives) had the most frequent

elections. As noted, frequent elections were intended to

ensure frequent turnover in members of the House.’ Now

that members of the Senate as well as the House are chosen

directly by the electorate, the policy reasons for frequent

elections (and frequent turnover) are just as powerful for the

Senate. It is the length (not the number) of terms that

determines stability.‘ The Founders designed Senate terms

* "(The House of Representatives should have] an immediate

dependence on, and an intimate sympathy with, the people.

Frequent elections are unquestionably the only policy by

which this dependence and sympathy can be effectually

secured." Federalist No. 52, at 327.

* At the constitutional convention, the Founders debated the

need for annual or biennial elections for House members on

June 21, 1787. Representative of the comments made in

support of annual elections was that of Mr. Roger Sherman:

"Should the members have a longer duration of service, and

(continued...)

12

three times the length of House terms to provide the stability

necessary for any government. Farrand Vol. | at 415, 423.

Under Amendment 73, Senators representing the State of

Arkansas may (assuming reelection) have their names on the

ballot for 2 terms, or 12 years. This is double the length of

time the Founders believed necessary to assure stability.

Because of the limited nature of the actual question

decided in Powell, that case did not fully address the policy

and political ramifications of Article I, Section 4, on state's

abilities to regulate congressional elections. This omission

(completely understandable in the context of Powell) is the

critical issue in this case. Article I, Section 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; but the Congress may at any

time by Law make or alter such Regulations, except as to the

Places of chusing [sic] Senators." The last clause of the

section provides for a congressional override of state election

laws.

The state ratifying conventions shed some light on the

interpretation of Section 4. For example, the nature of the

congressional override was depicted in a dialogue between

James Madison and James Monroe during the Virginia

ratification debates. Monroe wanted to know why Congress

had “ultimate controul over the time, place, and manner of

elections of representatives, and the time and manner of that

of senators." Debate in the Virginia (ratification)

* (...continued)

remain at the seat of government, they may forget their

constitutents [sic], and perhaps imbibe the interest of the

State in which they reside, or there may be danger of

catching the esprit de corps." Farrand, The Records of the

Federal Convention of 1787, Vol. 1 (1966) (Farrand) at 365.

13

Convention, Farrand Vol. 3 (Appendix A, CCX), at 311-12.

Madison replied that the concern was that

[s}ome states might regulate the elections on the

principles of equality, and others might regulate

them otherwise. This diversity would be

obviously unjust. ... Should the people of any

state, by any means be deprived of the right of

suffrage, it was judged proper that it should be

remedied by the general government.

Id. at 311. Madison's concern was not with state regulation

of candidates, but with assuring voters a right to vote.

Madison reiterated the impracticability of micromanaging

each state’s elections. This is why the language in the

Constitution grants broad authority to the states to conduct

federal elections but permits congressional override. /d.

Madison concluded his comments to Monroe: “But if

[elections] be regulated properly by the state legislatures, the

congressional controul will very probably never be

exercised." Jd. State leaders’s explicit dismay during the

ratification debates over Congress’ control over elections

demonstrates their understanding that Congress had usurped

a traditional state power by the very existence of the ability

to override state regulation.

This interpretation leads to the conclusion that the states

could, and were expected to, regulate elections in any

number of particulars. However, should states fall lax in

their duties to conduct elections to send representatives to the

federal legislature, Congress could alter or overrule the

state’s election laws so as to assure each state’s participation

in the federal government. The Anti-Federalists found this

safety mechanism so overpowering as to render the initial

ability to enact election regulations worthless. This response

14

is unquestionably based on the belief that Congress’ power

exceeds that of states on this issue.

Members of Congress who oppose ballot access

restrictions (including those who brought this lawsuit) have

a remedy at hand. Article I, Section 4, of the Constitution

permits congressional override of state election regulations.

Amici recognize the political difficulties inherent in such a

remedy when 70% of Americans favor such measures.

Levy, Can They Throw the Bums Out: The Constitutionality

of State-Imposed Congressional Term Limits, 80 GEO. L. J.

1913, 1916 (1992) (citing Humphrey, Put a Limit on

Congressional Terms, U.S.A. Today, Apr. 4, 1990, at A12).

Getting a majority in Congress to support such a bill may

well be difficult, even with the support of the Speaker of the

House.’ Nevertheless, it is the availability of the remedy,

not the political expediencies attached to it, that is

constitutionally significant.

The narrow holding of Powel! combined with the broad

intent and language of Article I, Section 4, gives this Court

ample reason to decide this case in a way that neither

overrules Powell nor strikes down Amendment 73.

Ultimately, given the language of Section 4, the ability of

Congress to fashion its own remedy, and the ability of

Amendment 73 to withstand other constitutional attacks (see

below), the ballot access restrictions on multiterm incumbents

should be fully upheld.

5 Speaker of the House Thomas Foley (D-Wash.) is an

appellee in the Ninth Circuit case currently pending to review

a District Court’s invalidation of Washington’s ballot access

restrictions on multiterm incumbents. Gregoire v. Thorsted

(pending).

15

C. The Ballot Access Restrictions

in Amendment 73 Must Be Upheld

The Arkansas Supreme Court’s erroneous decision

stems from its analysis of Amendment 73 under the wrong

provision of the U.S. Constitution. As described above,

Amendment 73 cannot be a qualification under Article |

because an incumbent barred from the ballot could still serve

if elected or appointed. The plurality opinion below

erroneously invalidated the congressional officeholder

provisions of Amendment 73 on Article I grounds and never

addressed the ballot access cases in that context.

In Anderson v. Celebrezze, 460 U.S. 780 (1983), this

Court described the balancing test that must be applied to

ballot access restrictions. This test, which is the standard of

review, consists of the following elements:

[A court] must first consider the character and

magnitude of the asserted injury to the rights

protected by the First and Fourteenth

Amendments that the plaintiff seeks to vindicate.

It then must identify and evaluate the precise

interests put forward by the State as justifications

for the burden imposed by its rule. In passing

judgment, the Court must not only determine the

legitimacy and strength of each of those interests;

it also must consider the extent to which those

interests make it necessary to burden the

plaintiff's rights. Only after weighing all these

factors is the reviewing court in a position to

decide whether the challenged provision is

unconstitutional.

Anderson, 460 U.S. at 789.

The right to hold public office, by itself, is not a

fundamental right. Bullock v. Carter, 405 U.S. 134, 142-43

oe

16

(1972); Clements v. Fashing, 457 U.S. 957 (1982). In

Clements, 457 U.S. at 963, this Court held that "[flar from

recognizing candidacy as a ‘fundamental right,’ we have held

that the existence of barriers to a candidate’s access to the

ballot ‘does not of itself compel close scrutiny.’" See also

Stiles v. Blunt, 912 F.2d 260, 265 (8th Cir. 1990), cert.

denied, 499 U.S. 919 (1991) ("[clontrary to appellant's

assertion, the right to run for public office, unlike the right

to vote, is not a fundamental right"); and Zielasko v. State of

Ohio, 873 F.2d 957, 959 (6th Cir. 1989) ("contrary to

Zielasko and Bowman’s assertions, running for office is not

a ‘fundamental right’"). Because the right to candidacy, in

and of itself is not fundamental, the state’s interests need

only be legitimate to outweigh incumbents’ ability to run for

reelection in perpetuity.

Moreover, the rights of supporters of multiterm

incumbents have not been unduly infringed. Notwithstanding

the fact that the right to vote has been characterized as

fundamental, that right is not absolute. In Rivera-

Rodriguez v. Popular Democratic Party, 457 U.S. 1, 9

(1982), the Supreme Court upheld a Puerto Rico law which

provided that if a commonwealth legislator died or resigned

in office, the party of which the vacating legislator was a

member had the right either to fil! the empty seat outright, or

hold an election for the seat, with only party members

eligible to vote. The appointee could serve up to 40 months

until the next election. The plaintiffs in that case argued that

all voters had an absolute right to cast votes in the election

to fill the vacant legislative seat. This Court, in upholding

the law, stated that "this Court has often noted that the

Constitution ‘does not confer the right of suffrage upon any

one.’" Jd. at 9 (citations omitted). This Court also noted

that "[aJbsent some clear constitutional limitation," a state is

"free to structure its political system to meet its ‘special

concerns and political circumstances.'" Rivera-Rodriguez,

457 U.S. at 13-14.

an

17

The compelling interests supporting rotation in office

are already documented in case law and elsewhere. The

policy reasons in favor of term limitation were amply

explored in Legislature v. Eu, 54 Cal. 3d 492; 816 P.2d

1309 (1991), cert. denied, _U.S.___, 117 L. Ed. 24 516

(1992). The California Supreme Court accepted the

arguments that

the state’s strong interests in protecting against an

entrenched, dynastic legislative bureaucracy, and

in thereby encouraging new candidates to seek

public office, are both legitimate and compelling

ones that support a lifetime ban from the office

and outweigh any interest the incumbent

legislators, or the voting public, may have in

perpetuating the incumbents’ positions of control.

Eu, 54 Cal. 3d at 520, 816 P.2d at 1326. Furthermore, the

court firmly recognized the advantages that are inherent in

the incumbency: "Whether by reason of superior fund

raising ability, greater media coverage, larger and more

experienced staffs, greater name recognition among the

voters, favorably drawn voting districts, or other factors,

incumbents do indeed appear to enjoy considerable

advantages over other candidates." Jd. at 523, 816 P.2d

at 1327-28.

Other courts have reached the same conclusion, which

this Court has implicitly accepted. In State ex rel.

Maloney v. McCartney, 159 W. Va. 513, 223 S.E.2d 607,

appeal dismissed for want of a federal question sub nom.,

Moore v. McCartney, 425 U.S. 927 (1976), the West

Virginia Supreme Court upheld a two term limitation on the

Governor’s Office, specifically rejecting the claim that the

law was undemocratic. The court stated:

The universal authority is that restriction upon the

succession of incumbents serves a rational public

18

policy and that, while restrictions may deny

qualified men an opportunity to serve, as a

general rule the over-all health of the body politic

is enhanced by limitations on continuous tenure.

... The power of incumbent officeholders to

develop networks of patronage and attendant

capacities to deliver favorably disposed voters to

the polls raised fears of an entrenched political

machire which could effectively foreclose access

to the political process.

... [I]t has long been felt that a limitation

upon succession of incumbents removes the

temptation to prostitute the government to the

perpetuation of a particular administration. ...

While elections are won by 51% of the vote, all

of the people of a state must be served.

Meretricious policies which sacrifice the well-

being of the economic, social, racial, or

geographical minorities are most likely where a

political figure, political party, or political

interest group can rely upon electorate inertia

fostered by the hopelessness of encountering a

seemingly invincible political machine.

Eu, 54 Cal. 3d at $20-21, 816 P.2d at 1327-28 (citations

omitted). The California Supreme Court held that "many, if

not all, of the considerations mentioned in Maloney (e.2.,

eliminating unfair incumbent advantages, dislodging

entrenched political machines, restoring open access to the

political process, and stimulating electorate participation)

would apply with equal force to the legislative branch." Jd.

at 521, 816 P.2d at 1326. The court concluded that

Maloney’s analysis was pertinent to the decision before it,

and that “permanent incumbency limitations are supported by

legitimate and compelling considerations." Jd. at 522,

816 P.2d at 1327.

19

In addition, Arkansas has a legitimate interest in

restricting ballot access of multiterm incumbents to

encourage the participation of women and minorities in

Congress. A three-judge federal District Court recently

recognized that advantages of incumbency that would

otherwise dilute minority opportunities can be corrected by

term limitations. United States v. City of Houston, 800 F.

Supp. 504, 507 (S.D. Tex. 1992) (before it required a

special election, the Justice Department should have

considered city council term limits approved by voters as an

effective means of increasing minority opportunities).

Historically, virtually all of the women and minorities

who have been elected to either the House or the Senate were

first elected in open seats. Of the 24 new women members

of the House of Representatives in the 103d Congress, 21

were elected in open seats in 1992. Of the 47 women House

members of the 103d Congress, 79% were elected in open

seats. Of the seven female Senators currently serving, all but

one were elected in open seats (or one in which an appointed

Senator was seeking a first elected term). None of the 14

other women who have previously served as Senators

defeated an incumbent member of the Senate to obtain that

office. Politics in America, 1994: The 103d Congress (CQ

Press 1993); Women in the United States Senate, Senate

Historical Office (from U.S. Congress, House, Women in

Congress, H. Doc. 238, 101st Cong. 2d Sess. 1991); To Be

Continued: A Study of Democratic Women’s Races for the

House of Representatives in 1992, Reprint of Staton-Hughes

prepared for EMILY’s List (1993). Moreover, most

minority members of the 103d Congress were first elected in

open seats: 33 of the 38 (87%) African-American members

of the House and 15 of the 18 Hispanic members. In

addition, the first and only Korean-American Representative

and the only American Indian Senator were elected in open

seats. Politics in America, 1994: The 103d Congress (CQ

Press 1993).

20

In Anderson, in the context of striking down a state

statute that unduly restricted the ability of new and smaller

parties to obtain ballot status, this Court observed that

"[h]istorically political figures outside the two major parties

have been fertile sources of new ideas and new programs;

many of their challenges to the status quo have in time made

their way into the political mainstream." Anderson,

460 U.S. at 794. The Court stressed that the primary values

to be protected in ballot access cases is the promotion of

uninhibited, robust, and wide-open debate on public issues.

Id. By its very nature, a system in which incumbents are

encouraged to depart from office will allow election

campaigns to assume a more vibrant role in the shaping of

public policy.

A balancing of any injury caused to candidates and

voters against the interest of Arkansas in enacting

Amendment 73 demonstrates that the state’s interest

substantially outweighs any incidental burden on the

candidates’ and voters’ rights. Legislators have no

fundamental right to hold office indefinitely; and voters are

not prevented from voting for another candidate who shares

their views. As stated by the California Supreme Court:

[I]t would be anomalous to hold that a statewide

initiative measure aimed at "restor[ing] a free and

democratic system of fair elections," and

“encourag[ing] qualified candidates to seek public

Office” ... is invalid as an unwarranted

infringement of the rights to vote and to seek

public office. We conclude the legitimate and

compelling interests set forth in the measure

outweigh the narrower interests of petitioner

legislators and the constituents who wish to

perpetuate their incumbency.

Eu, 54 Cal. 3d at 524-25, 816 P.2d at 1329 (brackets added

and in original).

21

Importantly, the court below did address this Court’s

ballot access cases in the context of ballot access restrictions

for state legislators, thus indicating the result it would have

reached (and should have reached) had these cases been

applied to the provisions affecting congressional

officeholders. Hill, 316 Ark. at 270, 872 S.W.2d at 359.

In the state legislator context, the court followed the

decisions of this Court in Burdick v. Takushi, 504 U.S. __,

119 L. Ed. 2d 245 (1992), Anderson, 460 U.S. 780,

Clements, 457 U.S. 957, and Bullock, 405 U.S. 134. Id.

After weighing the interests of the incumbents in perpetuating

their careers against the People’s desire to encourage rotation

in office to promote greater accountability and responsiveness

in their representatives, the Arkansas court concluded,

the state interest, as expressed in the Preamble to

Amendment 73, is sufficiently rational and even

compelling when weighed against the residual

burden placed on the rights and privileges of

elected officeholders and those desiring to support

them.

Id. at 272, 872 S.W.2d at 360 (emphasis added).

In dissent, one Arkansas justice did reach the ballot

access issue with respect to congressional officeholders.

Special Chief Justice Cracraft based his opinion on the very

distinction the plurality refused to acknowledge: "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."

Hill, 316 Ark. at 284, 872 S.W.2d at 368. Justice Cracraft

notes that Article I, Sections 2 and 3, begin with the phrase

"*[njo person shall be” a representative or senator, a choice

of words demonstrating a reference to service in Congress,

not the manner of election. Hill, 316 Ark. at 286,

872 S.W.2d at 369 (emphasis in original; brackets in

22

original). Justice Cracraft then properly examined the

initiative in light of the First and Fourteenth Amendments

(citing Anderson and Burdick). He found it “not

constitutionally infirm in any respect." Jd. The importance

of analyzing Amendment 73 as a ballot access measure

cannot be understated. The decisions of this Court analyzing

ballot access measures under the First and Fourteenth

Amendment have established a framework under which

provisions such as Amendment 73 can be easily upheld. See

Legislature v. Eu, 54 Cal. 3d 492, 816 P.2d 1309;

Miyazawa v. City of Cincinnati, 825 F. Supp. 816 (S.D.

Ohio 1993).

Ill

EXPERIENCE HAS SHOWN THAT BALLOT

ACCESS RESTRICTIONS APPLIED TO

LEGISLATIVE INCUMBENTS DO

NOT DESTROY REPRESENTATIVE GOVERNMENT

When the People of California enacted Proposition 140,

the Political Reform Act of 1990, the state Legislature was

sure the world was ending. Proposition 140 imposed

absolute term limits on: all members of the California

Legislature as well as the executive constitutional officers.

In addition, Proposition 140 substantially reduced legislative

spending and eliminated the legislative retirement plan.

Naturally, California legislators proclaimed the end of

effective legislative governance.

The California experience is particularly analogous to

what Congress can expect as more and more incumbents are

subject to ballot access restrictions or term limits. California

is the nation’s largest state in terms of population, budget,

natural disasters, and social problems (including immigration,

race riots, and so forth). California has a highly

professionalized Legislature, complete with legions of staff

members to assist with both policy and political issues.

Also, California has operated for the past 12 years with a

23

Republican governor and a Democratic Legislature--a

circumstance not unknown in Washington, D.C.

In the four years since term limits were enacted and

upheld by the California Supreme Court (Legislature v. Eu,

54 Cal. 3d 492), positive effects already have been felt

throughout the state. One of the primary goals of term

limits--to increase the competition level of elections--has

arrived with gusto.

There are 80 seats in the California Assembly (the

lower house). Of the 80 members who served in 1992, 24

will not be running for the same seat in 1994. Note that this

is before any Assembly member is required to leave under

the terms of Proposition 140 in 1996. Of those 24 members

leaving the Assembly, 10 are seeking statewide office this

year, 5 are seeking state Senate seats, | is a candidate for a

Superior Court judgeship, and | is running for Congress.

Others are returning to the private sector or other state and

local government agencies. Election "94: Assembly, 25 Cal.

J. 36-45 (May 1994).

There are 40 members in the California Senate.

Senators serve staggered terms, with half of the seats up for

election every two years. With the exception of one Senator

who switched districts to finish out the term of a Senator

who had been convicted of corruption, and who will be term

limited out of office this year, other Senators will not face

the term limits until 1998. Nevertheless, nine Senators have

left the Senate this year. Four are seeking statewide office

and one has gone to Congress. Interestingly, the movement

between the Assembly, Senate, and Congress has not been all

one way. Former California Congressman Tom Campbell

returned to the California Legislature when state Senator

Rebecca Morgan resigned to chair “Joint Venture,” an

entrepreneurial organization in Silicon Valley, and

Representative Campbell lost the 1992 primary for a United

24

States Senate seat. Election "94: State Senate, 25 Cal. J.

31-35 (May 1994).

There are a number of lessons to be drawn from

California’s experience so far. First, just because legislators

may no longer run for the same seats they have held for

years does not necessarily mean the State of California will

be deprived of their expertise in state government. On the

contrary, there has been far greater interest on the part of

legislators in statewide offices and other legislative seats.

Term limits has not thrust those experienced legislators who

still retain significant public support into political oblivion;

rather, term limits has opened new opportunities for these

legislators to serve the state in different capacities. Former

Assembly members have relinquished their seats to run for

state controller, state superintendent of public instruction, a

superior court judgeship, State Board of Equalization, state

Insurance Commissioner, Secretary of State, Attorney

General, Lieutenant Governor, and of course, the state

Senate. One former Assembly member is also running for

Congress. Among the retiring state Senators, several entered

primary elections for the offices of Governor, State Board of

Equalization, state Treasurer, state Insurance Commissioner,

and Lieutenant Governor. One is running for a seat on the

Orange County Board of Supervisors. Scott, Election '94:

Governor, 25 Cal. J. 8 (May 1994); Pollard, Election ’94:

U.S. Senate, 25 Cal. J. 11 (May 1994); Barber, Election '94:

Insurance Commissioner, 25 Cal. J. 13 (May 1994); Borland,

Election 94: Lieutenant Governor, 25 Cal. J. 16 (May

1994); Scott, Election '94: Treasurer, 25 Cal. J. 16 (May

1994); Starkey, Election ’94: Secretary of State, 25 Cal. J.

17 (May 1994); Starkey, Election ’94: Attorney General,

25 Cal. J. 18 (May 1994); Pollard, Election '94:

Superintendent of Public Instruction, 25 Cal. J. 18 (1994).

Second, term limits has created more competitive

elections. In the 1994 primaries, incumbent candidates faced

numerous challenges. For example, for more than 20 years

25

the Westside area of Los Angeles was completely controlled

by the political organization headed by Howard Berman and

Henry Waxman. Legislators handpicked by the Berman-

Waxman machine tended to stay in office forever--or until a

demographically friendly congressional seat opened up.

However, facing term limits in 1996, the three Assembly

Democrats representing this area gave up their seats to run

for statewide offices. In the June, 1994, primary, 22

Democratic and 5 Republican candidates vied for the

privilege of serving Westside voters. The Berman-Waxman

organization remained largely silent throughout the primary

season. This silence may be the harbinger of a corollary

benefit: the dismantling (or at least the lessening of

significance) of political machines. Hill-Holtzman, Seating

Now Available: It Used to be That the Only Route to a

Westside Assembly Job Went Through the Berman-Waxman

Machine. Not Anymore, Los Angeles Times, May 8, 1994,

at J12. With California’s 120 state legislative seats, 54

congressional seats, dozens of statewide offices (including

administrative agencies), and literally hundreds of local

government positions available, politicians who cannot bear

the thought of working in the private sector have many other

options available to them. Similarly, members of Congress

who must run for reelection as a write-in candidate will

consider the myriad opportunities otherwise available in

public service. A change in scenery provides the growth and

depth of experience that should be required of all lawmakers.

Third, the increased number of open seats has

presented strong opportunities for women and minorities to

make gains in their electability. Voters elected 16 men and

12 women in 1992, bringing the number of women in the

Assembly to an all-time high of 22. The six Latinos elected

in 1992 increases their numbers in the Assembly to seven

from the previous high of four. The one new African-

American elected in 1992 maintained the number of blacks

in the Assembly at seven. The Class of 1992 also included

the first Asian-American elected to the Legislature in 14

26

years. The 8 ethnic minority members elected to the

Assembly compares to just 2 in the 24-member class elected

in 1982. Weintraub, After the Elections, State Assembly: 28

Newcomers Bring a Sense of Purpose, Los Angeles Times,

Nov. 8, 1992, at A3.

Fourth, the legislators elected under term limits are not

complete political novices. Most have political experience in

local government or community projects. For example, of

the eight freshman in 1992 designated as the best of the class

by the California Journal, one is a former community college

trustee, two are former mayors, one is a former vice-mayor,

one is a former deputy county counsel, two are attorneys

(one of whom spent some time as a lobbyist), and one is a

former sheriff. Block, The Term-Limit Babies’ First At Bat,

25 Cal. J. 8 (June 1994). Many other members, although

not active in local politics, bring to the Legislature real-life

experiences in every facet of California society. For

example, the Class of 1992 contained a home builder, a

retired U.S. Air Force fighter pilot, a school teacher, an

interior designer, an insurance company executive, and the

owner of a chain of video stores. /d.

Finally, new faces in the Legislature do not diminish

that body’s ability to perform its lawmaking function. Even

though the 1992 elections brought the highest number (32) of

freshman legislators since 1978 (the year of the Proposition

13 tax revolt), the 1993 Legislature was hailed as one of the

most productive in years. Skelton, Legislators Try Something

New: Action, Los Angeles Times, Sept. 13, 1993, at A3.

Moreover, the front page of the Los Angeles Times

announced that "the California Legislature’s 1993 session so

exceeded the expectations of those trying to fix the battered

economy that it is being described as a watershed in the

State’s posture toward business.” Woutat, State’s Help for

Business Seen as Watershed Shift, Los Angeles Times,

Sept. 13, 1993, at Al. The infusion of new legislators

helped break the gridlock that has paralyzed the California

27

Legislature, leading to a promising new trend that should be

replicated in Congress.

+

CONCLUSION

For the reasons stated herein, the decision of the

Arkansas Supreme Court as it relates to congressional

incumbents should be reversed. Amendment 73, which

limits ballot access to multiterm congressional incumbents,

does not impose any new qualifications that contradict the

qualifications set forth in Article I, Sections 2 and 3, of the

United States Constitution. Any multiterm incumbent may

serve if elected by write-in or if appointed to the seat. The

ballot access restrictions on multiterm incumbents should be

analyzed under the same framework as any other ballot

access restriction. | Under this framework, Arkansas’

Amendment 73 should be upheld in its entirety.

DATED: August, 1994.

Respectfully submitted,

JOHN M. GROEN RONALD A. ZUMBRUN

Pacific Legal Foundation ANTHONY T. CAso

10800 N.E. 8th Street, * DEBORAH J. LA FETRA

Suite 325 *Counsel of Record

Bellevue, Washington 98004 _— Pacific Legal Foundation

Telephone: (206) 635-0970 2151 River Plaza Drive, Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Attorneys for Amici Curiae