Amicus Curiae Brief — Cook v. Gralike

, Supreme Court, U.S.

FILED

S) JUN 2 3 2000

No. 99-929

In The ———

Supreme Court of the United States

¢

REBECCA MCDOWELL COOK,

Petitioner,

Vv.

DON GRAiIKE,

Respondent.

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On Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

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BRIEF OF AMICUS CURIAE -

THE INITIATIVE AND REFERENDUM INSTITUTE -

IN SUPPORT OF THE PETITIONER

¢

Patrick T. O’Brien*

Butter, GLater & O’Brien

811 S. 13th St.

Lincoln, Nebraska 68508

(402) 475-0881

JoHN M. BoetHm

LeGcat Counset, THE INITIATIVE

AND REFERENDUM INSTITUTE

811 S. 13th St.

Lincoln, Nebraska 68508

(402) 475-0881

*Counsel of Record

TABLE OF CONTENTS

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TRE GE AUTRE E cc ccccccccvcecccceneeers

STATEMENT OF INTEREST OF AMICUS CURIAE ...

SUMMARY OF ARGUMENT.................000005

I.

BALLOT LABELS AND TERM LIMIT

PLEDGES DO NOT COMPEL OR PUNISH

GUNES ov ecnncnccedsesessanceeseceseetenes

A. Missouri’s Article VIII Does Not Compel

or Coerce Speech of Representatives or

B. Informational Ballot Labels Do Not Con-

stitute Punishment of Representatives or

CRIED x von evenessvenscscucéssvensas

C. Representatives and Candidates Have

Adequate Opportunity to Disassociate

Themselves from the Pro-Term Limits

THE EIGHTH CIRCUIT ERRED IN APPLYING

STRICT SCRUTINY RATHER THAN THE FLEX-

IBLE STANDARD OF REVIEW APPROPRIATE

FOR WEIGHING FIRST AMENDMENT CHAL-

EVEN IF ARTICLE VIII Is REVIEWED UNDER

STRICT SCRUTINY, THE LAW SERVES A

COMPELLING STATE INTEREST AND IS

NARROWLY TAILORED TO SERVING THAT

MISSOURI'S ARTICLE VIII BALLOT LABEL IS

ITSELF CORE POLITICAL SPEECH OF THE

PEOPLE, PROTECTED BY THE FIRST

10

16

19

26

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Celebrezze, 460 U.S. 780 (1983)........ 20, 23

Anderson v. Martin, 375 U.S. 399 (1964)..........045. 23

Board of Regents of the Univ. of Wis. Sys. v. South-

worth, 120 S. Ct. 1346 (2000)............ ee eee ee ees 28

Bramberg v. Jones, 20 Cal. 4th 1045, 978 P.2d 1240

Serre Tree rere ree TTT TTT TTT Te 6

Buckley v. Valeo, 424 U.S. 1 (1976)............ 24, 26, 27

Burdick v. Takushi, 504 U.S. 428 (1992)............ 20, 21

County of Allegheny v. ACLU, Greater Pittsburgh

Chapter, 492 U.S. 573 (1989). .... 6... cece cece ees 9

Craig v. Harney, 331 U.S. 367 (1947) ..... 6... c cece ees 8

Gralike v. Cook, 191 F.3d 911 (8th Cir. 1999)...... passim

Hurley v. Irish-American Gay, Lesbian and Bisexual

Group of Boston, 515 U.S. 557 (1995)...........566- 16

Joint Anti-Fascist Refugee Comm. v. McGrath, 341

EE ccbcceucccetacclscesevescccoees 11, 14

Lee v. Weisman, 505 U.S. 577 (1992). ......... 0c cc eee 8

Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991) .... 13

Lynch v. Donnelly, 465 U.S. 668 (1984)............665. 9

Marsh v. Chambers, 463 U.S. 783 (1983) ....... eeeotees 8

Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241

SRE RES eRe S456 66560040 040d000s cvcccccces 12, 13

National Endowment for the Arts v. Finley, 524 U.S.

Ps chbeeeheaesderesecevescvsccccccecccocoes 27

iii

TABLE OF AUTHORITIES - Continued

Page

New York Times v. Sullivan, 376 U.S. 254 (1964)....8, 16

Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal.,

See Ee EE beneeeddecdsccsccccececeodecescts 13

Paul v. Davis, 424 U.S. 693 (1976) ..... 10, 11, 14, 15, 18

PruneYard Shomping Ctr. v. Robins, 447 U.S. 74

SERED cbhbdEeneNeosuseeneeseeeesescneceeues 16, 17

Riley v. Nat'l Fed. of the Blind of N.C., Inc., 487 U.S.

PP GReeddedendneesecncéenscenaccceoscsecs 14

Rosenberger v. Rector and Visitors of Univ. of Va., 515

ee Ua casncnccccceunescctseeesecenceces 27

Storer v. Brown, 415 U.S. 724 (1974) ................. 21

Timmons v. Twin Cities Area New Party, 520 U.S. 351

PUPA deduSedeceennnvceesceesecéecisoceceocees 20, 29

West Virginia State Bd. of Educ. v. Barnette, 319 U.S.

Ey Gn de wecoccscccccccecccceesccececcoceccoces 13

Wooley v. Maynard, 430 U.S. 705 (1977)....... 12, 13, 18

CONSTITUTIONS

Be SE Me Wi cecesncecccesccccecevesseces passim

Sy Ey CIES Diwoceccccvccssecetsonccucees passim

eee GE UNE coccsccccccccssccccescceccesens 24

re rn Cr tO ccdocdececsdsuvececencscoces 21

LeGISLATIVE MATERIALS

143 Cong. Rec. E277 (daily ed. Feb. 13, 1997)

(statement of Rep. Emerson)....................... 6

1 Annals of Cong. 766 (Joseph Gales ed., 1789)....... 26

iv

TABLE OF AUTHORITIES - Continued

SECONDARY AUTHORITIES

Michael J. Gerhardt, The Historical and Constitu-

tional Significance of the Impeachment and Trial of

President Clinton, 28 Horstra L. Rev. 349 (1999) ....

Michael J. Gerhardt, The Constitutionality of Cen-

sure, 33 U. Ricn. L. Rev. 33 (1999)..............

Kris W. Kobach, May “We the People” Speak?: The

Forgotten Role of Constituent Instructions in

Amending the Constitution, 33 U.C. Davis L. Rev.

B CIGTED oc ccccccccccccsccocccccccscseccoccesses

Gordon S. Wood, The Creation of the American

Republic 1776-1787 (2d ed. 1998) ............+-.:

ELection MATERIALS

Sample Ballot & Voter Information Pamphlet, County

of Alameda, Calif., Sept. 1, 1998 (Alameda

County, Calif., Registrar of Voters).............

Sample Ballot & Voter Information Pamphlet, County

of Alameda, Calif., Feb. 2, 1999 (Alameda County,

Calif., Registrar of Voters) .............-.05045:

Alameda County Special Primary Election, Sept. 1,

1998, Summary Report (Alameda County, Calif.,

Registrar of Voters (Sept. 4, 1998))...........-.

Alameda County Special Primary Election, Feb. 2,

1999, Summary Report (Alameda County, Calif.,

Registrar of Voters (Feb. 4, 1999))..............

Page

1

STATEMENT OF INTEREST OF AMICUS CURIAE

The Initiative and Referendum Institute is a non-

profit, non-partisan, education and research organization

that promotes and defends the initiative and referendum

process.! The mission of the Initiative and Referendum

Institute is to study the mechanisms of direct democracy,

develop clear analyses of the strengths and weaknesses of

various systems, and disseminate that information as

broadly as possible. The Institute seeks to educate the

public about the initiative process and its effects on the

political, fiscal and socia! fabric of our society. The Insti-

tute also endeavors to provide effective leadership in

litigation - defending the initiative and referendum rights

of citizens against legal challenges that would seek to

weaken or abolish such rights.

The Institute has filed this brief to defend the amend-

ments to Article VIII of the Missouri Constitution that

were passed by popular initiative on November 5, 1996

(hereinafter “Article VIII”), because the voters of Mis-

souri have used the initiative to reinforce the role of

citizens in the process of constitutional transformation.

The instruction of representatives and the provision of

information to voters regarding representatives’ voting

records allows citizens to press for necessary reforms and

to effectively participate in democratic government. This case

also implicates another right of paramount importance

! The parties have consented to the filing of this brief.

Counsel for a party did not author this brief in whole or in part.

No person or entity, other than the Amicus Curiae, or its

members, made a monetary contribution to the preparation and

submission of this brief.

in any democratic republic - the right of the people to

speak collectively through their government. Because the

Institute is particularly interested in ensuring that the

First Amendment continues to protect the initiative and

referendum process, this brief is limited to the First

Amendment issues presented in this case.

°

SUMMARY OF ARGUMENT

This case involves two competing free speech claims,

the right of the people to speak through their government

versus the right of representatives and candidates to

avert the supposed negative consequences of this speech.

The Eighth Circuit erred by failing to give due weight to

the right of the people to speak collectively. The Eighth

Circuit also erred in holding that Article VIII unconstitu-

tionally compels the speech of representatives and candi-

dates. For a compelled speech violation of the First

Amendment to exist, the following three elements must

be present: (1) the actions-of the state must demonstrably

compel or coerce speakers to express a particular point of

view, (2) the coercion of speech must be enforced by some

punishment or penalty, (3) the speaker must be deprived

of adequate opportunity to disassociate himself from the

message that the state would have him bear. The Eighth

Circuit erred in concluding that the first two elements

existed; and it did not even consider the third element.

The empirical evidence regarding the effects of ballot

labels strongly suggests that they are not coercive. More-

over, the Supreme Court has acknowledged that merely

being stigmatized by state speech, without more, is not a

penalty violative of the First Amendment.

The Eighth Circuit also erred in holding that official

commentary by the state on a candidate's behavior is a

severe restriction on First Amendment rights that necessi-

tates strict scrutiny. Rather, as a reasonable, non-

discriminatory ballot law, Article VIII should be subjected

to the less exacting test of whether it serves an important

regulatory interest of the state. Moreover, even if Article

VIII were found to be a severe restriction, triggering strict

scrutiny, it would withstand such scrutiny. The state’s

interest in fostering an informed electorate is a compel-

ling one, as is the interest of Missouri citizens in pressing

for constitutional reform to increase the integrity of

elected officials. Article VIII is narrowly tailored to serve

these interests, as it is the only practical way to counter

the deceptive tactics practiced by candidates and incum-

bent representatives on the term limits issue.

The people of Missouri also have a collective right

under the First Amendment to speak regarding the con-

duct of representatives and candidates. The Supreme

Court has acknowledged that such speech rights of the

majority exist. Furthermore, because the ballot is the

state’s property, the state retains a substantial amount of

discretion over what speech occurs on it.

¢

ARGUMENT

I. BALLOT LABELS AND TERM LIMIT PLEDGES DO

NOT COMPEL OR PUNISH SPEECH

The U.S. Court of Appeals for the Eighth Circuit

treated Missouri's Article VIII instruct-and-inform law as

an instance of compelled speech, holding that it violated

the First Amendment righis of political candidates.

Gralike v. Cook, 191 F.3d 911, 917-21 (8th Cir. 1999). How-

ever, the Eighth Circuit failed to adequately consider all

of the issues that must be addressed in establishing a

claim of government compulsion of individual speech.

For a compelled-speech violation of the First Amendment

to exist, the following three elements must be present: (1)

the actions of the state must demonstrably compel or

coerce speakers to express a particular point of ‘view, (2)

the coercion of speech must be enfoiced by some punish-

ment or penalty, (3) the speaker must be deprived of

adequate opportunity to disassociate himself from the

message that the state would have him bear. In this case,

the Eighth Circuit erred in concluding that the first two

elements existed; and it did not even consider the third

element.

A. Missouri’s Article VIII Does Not Compel or

Coerce the Speech of Representatives or Candi-

dates

At the outset, it must be noted that the Eighth Cir-

cuit’s description of what Article VIII requires is some-

what misleading. Article VIII does not “force candidates

to speak in favor of term limits.” Id. at 917. With respect

to incumbent candidates, Article VIII is in no way con-

cerned with what the candidate says. It is solely con-

cerned with how the candidate votes and follows other

procedural instructions. An incumbent candidate need

not ever mention the phrase “term limits” in order to

avoid the ballot label. He may even speak openly against

term limits and urge all of his fellow representatives to

vote against term limits, while casting his own vote in

accordance with his instructions. Although the instruc-

tions contained in Article VIII direct representatives to

vote a particular way and to take certain procedural

actions, the instructions do not urge representatives to

say anything or to espouse any point of view. Similarly, a

non-incumbent candidate may choose to say nothing

about term limits or to speak stridently against term

limits without triggering the ballot label. He need only

sign a pledge to take certain actions in order to follow the

peoples’ instructions. Although there may be an element

of protected speech in the casting of a vote or the signing

ofa pledge, Article VIII in no way compels a candidate to

publicly advocate a point of view.

At the core of the Eighth Circuit’s compelled speech

holding is the assumption that the Article VIII ballot

labels would actually operate to coerce the speech of

candidates. “The ballot labels are a serious sanction,

which we believe is sufficient to coerce candidates to

speak out in favor of term limits rather than risk the

political consequences associated with being labeled on

the ballot.” Id. at 919. However, the Eighth Circuit pro-

vided no evidence of any sort to support this assumption.

The Court was apparently unaware that empirical evi-

dence was available. Instead, the Eighth Circuit offered a

mere guess as to how the labels might affect the behavior

of politicians in the real world.

The Eighth Circuit guessed wrongly. If, as the Eighth

Circuit supposed, the Article VIII ballot labels were suffi-

ciently coercive, one would assume that candidates

would be unable to resist the pressures created by the

labels. In fact, the available evidence indicates that candi-

dates were quite willing to disregard their Article VIII

instructions. In February 1997, Missouri Congressional

Representative Jo Ann Emerson not only voted contrary

to her instructions, she declared on the floor of the House

her intention to do so, stating, “if that means I invoke a

misleading scarlet letter, so be it.” 143 Cong. Rec. E277

(daily ed. Feb. 13, 1997) (statement of Rep. Emerson).?

She was not the only member of Congress who expressed

the view that 4isregarding the instructions was a per-

fectly feasible option. Florida Representative Bill

McCollum urged Members of Congress from the nine

states operating under similar instruct-and-inform laws

to vote contrary to their instructions and to “take the risk

and the chance of facing up to [term limits advocates].”

Id. at H420. Plainly, these representatives did not regard

the ballot labels to be particularly coercive.

if the Eighth Circuit’s assumption were correct, one

would also expect non-incumbent candidates operating

under instruct-and-inform laws to be coerced into signing

the term limits pledge. Here again, the empirical evidence

indicates the contrary. In 1998 and 1999, the state of

California held three special elections to fill vacant state

legislative seats. The elections were held in the wake of

California’s Proposition 225 instruct-and-inform law,

which was adopted by California voters on June 2, 1998.°

These three elections provide the only existing evidence

regarding the effect of an instruct-and-inform law on

2 Cited in Kris W. Kobach, May “We the People” Speak?: The

Forgotten Role of Constituent Instructions in Amending the

Constitution, 33 U.C. Davis L. Rev. 1, 24 n.93 (1999).

3 The California law is, in all relevant respects, virtually

identical to Missouri's Article VIII. See Bramberg v. Jones, 20 Cal.

4th 1045, 1050-53, 978 P.2d 1240, 1243-45 (1999).

non-incumbent candidate behavior. The effect was not at

all what the Eighth Circuit supposed it to be. In Califor-

nia’s Ninth District special primary election for the office

of State Senator, held on September 1, 1998, four of the

five candidates refused to sign the term limits pledge and

consequently received the ballot labels by their names.

Sample Ballot & Voter Information Pamphlet, County of

Alameda, Calif., Sept. 1, 1998 (Alameda County, Calif.,

Registrar of Voters). In the February 2, 1999, Sixteenth

District special primary election for State Representative,

three of the four candidates refused to pledge to support

term limits and ran with the ballot labels by their names.

Sample Ballot & Voter Information Pamphlet, County of

Alameda, Calif., Feb. 2, 1999 (Alameda County, Calif., Reg-

istrar of Voters). The third election was the general elec-

tion in the Sixteenth District, between two candidates

already counted. Of the nine candidates running for

office in the two primary elections, only two took the

pledge to support term limits. The overwhelming maijor-

ity of candidates, seven of nine, withstood the sup-

posedly coercive threat of the ballot label. Thus, the

available empirical evidence strongly suggests that the

ballot labels do not have a coercive effect on candidates’

decisions to sign the pledge or not.

Article VIII involves commentary by the people on

an incumbent candidate’s voting record or on a non-

incumbent candidate’s silence. As described above, this

commentary did not exert a coercive effect on candidate

behavior in practice. But is the effect coercive in theory?

Although this case presents a novel question in the area

of compelled speech, there are relevant precedents that

consider the coerciveness of government speech in other

contexts. In such cases, the Supreme Court has taken into

account the fortitude of the individua! who must endure

the speech. For example, in the case of Marsh v. Chambers,

463 U.S. 783 (1983), the Court rejected the argument that

having legislators endure the religious speech of a state

chaplain violated the Establishment Clause. In so hold-

ing, the Court noted that “the individual claiming injury

by the practice is an adult, presumably not readily sus-

ceptible to ‘religious indoctrination,’ . . . or peer pres-

sure. ... ” Id. at 792 (internal citations omitted). In

contrast, where the individuals exposed to public prayer

are minors, the Court has acknowledged that they may be

more susceptible to coercion: “Research in psychology

supports the common assumption that adolescents are

often susceptible to pressure from their peers towards

conformity. ...” Lee v. Weisman, 505 U.S. 577, 593 (1992).

In the present case, the candidate, in addition to

being an adult, is also a public figure. In New York Times v.

Sullivan, 376 U.S. 254 (1964), the Court recognized that

public figures are expected to endure a greater amount of

coercive or derogatory speech than are ordinary citizens.

If judges are to be treated as ‘men of fortitude,

able to thrive in a hardy climate,’ Craig v. Har-

ney, 331 U.S. 367, 376 (1947) ..., surely the same

must be true of other government officials, such

as elected city commissioners. Criticism of their

official conduct does not lose its constitutional

protection merely because it is effective criticism

and hence diminishes their official reputations.

376 U.S. 254, 273. The same reasoning applies in the

present case. Candidates for public office are adults who

choose to enter the treacherous, turbulent waters of polit-

ical campaigns and elections. See id. at 273, n.14. A thick

skin is required. Candidates are expected to take and

defend positions on a wide range of issues, many of

which they would probably rather not discuss. Candi-

dates for public office must also endure criticism from a

variety of sources. Clearly, this type of individual may be

expected to withstand many influences, including com-

mentary by citizens in the form of a ballot label. With this

consideration in mind, it is not surprising that seven out

of nine candidates in the California elections brushed the

pledge aside even though they would face the ballot

labels. Given the type of individuals involved, the ballot

labels cannot be assumed to be inherently coercive.

The Eighth Circuit found the labels to be “partic-

ularly harmful because they appear on the ballot, an

official document produced by the state.” Gralike, 191

F.3d at 918. Government property, however, is regularly

made a vehicle for speech of the majority. See Lynch v.

Donnelly, 465 U.S. 668 (1984) (upholding display of creche

on government property); County of Allegheny v. ACLU,

Greater Pittsburgh Chapter, 492 U.S. 573 (1989) (upholding

display of menorah on government property). In Lynch,

the Court noted the long history of executive orders and

other official announcements by Presidents and Congress

proclaiming Christmas and Thanksgiving National Holi-

days in religious terms. Id. at 676. The Eighth Circuit

supposed that the ballot labels would create the impres-

sion of official disapproval, because they appear on state-

produced documents. Gralike, 191 F.3d at 918-19. By this

logic, the mere fact that the creche in Lynch was displayed

on government property would have created a public

impression of official approval of Christianity.

10

B. Informational Ballot Labels Do Not Constitute

Punishment of Representatives or Candidates

The Eighth Circuit contended that a ballot label com-

menting on a candidate’s decision not to take a term

limits pledge amounted to punishment: “we believe that

the Missouri Amendment in fact threatens a penalty that

is serious enough to compel candidates to speak - the

potential political damage of the ballot labels.” Gralike at

918. This conclusion is flawed analytically, empirically,

and as matter of precedent.

Analytically, the Eighth Circuit failed to precisely

identify the source of the “penalty” faced by a candidate.

The primary penalty that the candidate fears, and pre-

sumably seeks to avoid, is electoral defeat. However,

under Article VIII, the state does not respond to a refusal

to pledge by handing the candidate electoral defeat.

Rather, the state provides factual information to the

voters. The penalty, if it occurs, is not delivered by the

state. The penalty is the result of a series of unconcerted

private choices by citizens in the voting booth. Thus,

private citizens administer the penalty. And they do so

without any certainty that the penalty will actually occur

when the votes are counted.

The distinction between the state imposing a penalty

and the state providing information that may or may not

lead to the private imposition of a penalty is a critical

one. The Court has recognized that the Constitution

affords individuals little protection against such pri-

vately-imposed penalties. In Paul v. Davis, 424 U.S. 693,

706 (1976), the Court held that the labeling of a person as

an “active shoplifter” is not a punishment by the state

11

sufficient to trigger procedural or substantive due pro-

cess protection. This labeling informed private decisions

that severely inhibited the plaintiff's ability to enter busi-

nesses or obtain employment. Id. at 697. However, the

Court recognized the distinction between public and pri-

vate punishment, quoting Justice Jackson’s concurrence

in Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S.

123 (1951), where he dismissed the consequences result-

ing from being designated a “subversive” as “sanctions

applied by public disapproval, not by law.” Paul, 424 U.S.

at 703-704 (citing McGrath, 341 U.S. at 183-184). The same

may be said in the present case. An electoral loss suffered

by a candidate would be the result of public disapproval

expressed at the polls, not a legal penalty imposed by the

state.

Empirically, the conclusions of the Eighth Circuit are

deeply flawed. The Eighth Circuit not only supposed that

few candidates would risk not signing the pledge (an

incorrect assumption, as discussed above), but also

assumed that those who did take the risk would suffer

grave “political damage.” Gralike, 191 F.3d 918. Once

again, the Eighth Circuit’s unsupported assumption

about electoral behavior was well off the mark. The avail-

able empirical evidence indicates that the ballot labels are

not determinative of election outcome. In two of the three

special elections in California in 1998 and 1999, the win-

ners were candidates who had refused to take the term

limit pledge and who received ballot labels next to their

names. In the Ninth District special primary election for

State Senator, the winner was Don Perata, who had

declined to take the pledge and had received a ballot

label under his name. Alameda County Special Primary

12

Election, Sept. 1, 1998, Summary Report (Alameda County,

Calif., Registrar of Voters (Sept. 4, 1998)). And in the

Sixteenth District special primary election for State Rep-

resentative, the winner was Elihu Harris, who also had

refused to take the term limit pledge and had received a

ballot label under his name. Alameda County Special Pri-

mary Election, Feb. 2, 1999, Summary Report (Alameda

County, Calif., Registrar of Voters (Feb. 4, 1999)). This

empirical evidence suggests strongly that, in the real

world, the Article VIII ballot label is not determinative of

electoral outcome. Indeed, party labels, which are manda-

ted on ballots across the country, correlate much more

closely with victory or defeat at the polls. The Eighth

Circuit made an evidently erroneous assumption when it

linked the Article VIII ballot labels to defeat at the polls.

This assumption is critical to the Eighth Circuit’s holding.

Without a significant probability of defeat at the polls,

there is no penalty - not even one imposed by individual

private citizens.

The Eighth Circuit’s analysis of the relevant Supreme

Court precedents in this area is also flawed. For a com-

pelled speech claim to be valid, there must be some

penalty or punishment that forces the individual to

speak. See Wooley v. Maynard, 430 U.S. 705, 707-708 (1977);

Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 244

(1974). Indeed, it is difficult to imagine how speech could

be “compelled” without the threat of some sort of sanc-

tion to do the compelling.* Yet, the Eighth Circuit

4 Of course, compulsion can be produced with a carrot, as

well as a stick However, it seems rather unlikely that a

constitutional violation would be found where a state rewarded

13

asserted that “compelled speech has never been limited

to those cases in which the state seeks to impose or

compel speech through threat of financial or criminal

sanction.” Gralike, 191 F.3d at 918. In support of its con-

tention, the Eighth Circuit misleadingly quoted Miami

Herald, 418 U.S. at 258: “Even if a newspaper would face

no additional costs to comply . . . the Florida statute

[compelling speech] fails to clear the barriers of the First

Amendment... . ” Gralike, 191 F.3d at 918. However, the

reason that the additional cost was irrelevant was

because, under the Florida statute, editors of newspapers

that did not allow criticized political candidates a right of

reply already faced civil liability and the possibility of

being charged with a first-degree misdemeanor. Miami

Herald, 418 U.S. at 244. The compulsion generated by such

penalties was an “intrusion into the function of editors.”

Id. at 258. Criminal prosecution and exposure to civil

liability is precisely the type of tangible punishment that

the First Amendment prohibits. Nothing in Miami Herald

suggested that ethereal “penalties,” like ballot labels,

should trigger First Amendment scrutiny.

The Eighth Circuit’s references to compelled speech

cases are largely inapposite to the case at hand. See West

Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943);

Miami Herald, 418 U.S. 241 (1974); Wooley, 430 U.S. 705

(1977); Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal.,

475 U.S. 1 (1986); Lehnert v. Ferris Faculty Ass'n, 500 U.S.

a select few citizens who spoke as directed by the state. The

“compelled” speaker would be better off after speaking, and the

rest of the citizenry would have experienced no infringement of

their speech rights.

14

507 (1991); Riley v. Nat'l Fed. of the Blind of N.C., Inc., 487

U.S. 781 (1988). Whether it was expulsion, revocation of a

utility monopoly or license, or some financial or criminal

penalty, in all of the cited cases the speaker faced tangible

punishment. Unlike the laws at issue in those cases, Arti-

cle VIII merely requires the candidate to endure a mes-

sage describing his official conduct. This can hardly be

regarded as a punishment. If so, it is a punishment

endured daily by public officials across the nation. Most

political entities in the United States publicize the votes

of office-holders and the political contributions made to

candidates. Where controversial issues and large contri-

butions are concerned, the dissemination of this informa-

tion is a source of some consternation to politicians. But it

is necessary to encourage responsible behavior by elected

representatives.

The Supreme Court has never found a violation of

the First Amendment where a state responds to the

actions of individuals by communicating information on

state property. In Paul, the Court held that the distribu-

tion of flyers identifying the plaintiff as an “active shop-

lifter” did not constitute a punishment by the state

sufficient to trigger procedural or substantive due pro-

cess protection. 424 U.S. at 706 (1976). Despite the stigma

of being branded an “active shoplifter,” the .Court

rejected the claim that the state may not publicize a

record of an official act such as an arrest. Id. at 713.

Voting records of representatives, like arrests, are official

acts that the state has a right to publicize. Although Paul

was decided on substantive and procedural due process

grounds, the Court indirectly addressed the First Amend-

ment. In Paul, the Court reviewed the many opinions

written by the Justices in Joint Anti-Fascist Refugee Comm.

15

v. McGrath, 341 U.S. 123 (1951). In McGrath, the Court

considered whether the Attorney General, purporting to

act in pursuance of an Executive Order, could designate

certain groups as “communist” or “subversive.” The

Court in Paul approvingly quoted Justice Reed’s dissent

in McGrath, in which he argued that a stigmatizing desig-

_ nation of an organization by the state, without more, did

not “subject them to any punishment or deprive them of

liberty of speech or other freedom.” Paul, 424 U.S. at 704

(citing McGrath, 341 U.S. at 202). The clear import of Paul

is that merely being stigmatized by the state is not a

penalty of constitutional dimension. Moreover, being

labeled an “active shoplifter,” or “subversive” is

undoubtedly more mortifying than being labeled an

opponent of term limits.

It may be argued that Article VIII creates a state-

inflicted stigma coupled with a loss of employment,

which Paul suggested is a penalty serious enough to

trigger constitutional protection. Id. at 701. However, los-

ing an election is more analogous to not being hired than

to being fired. And candidates certainly have no constitu-

tional right to be elected. Plus, as noted above, electoral

defeat would not be the result of state action, but rather

the result of a series of unconcerted private choices by

individual citizens at the polls.

Paul also required a connection between the state-

imposed stigma and the loss of employment. Id. at 709. If

Paul is the standard, the respondent should be required to

demonstrate some nexus between the ballot label and

losing the election. This standard would require the poll-

ing of voters in an attempt to determine whether a major-

ity was persuaded by the ballot labels to vote against the

16

candidate. This standard, however, draws too much of an

analogy between normal employment and holding

elected office. Plainly, there are pronounced differences

between the two situations.> Moreover such an analogy

completely ignores the necessary interplay of free speech

and voting that is essential in a democratic republic. To

the extent that speech about a candidate leads to voter

retribution against the candidate, it is a consequence that

the First Amendment contemplates. “The maintenance of

the opportunity for free political discussion to the end

that government may be responsive to the will of the

people . . . is a fundamental principle of our constitu-

tional system.” New York Times v. Sullivan, 376 U.S. 254,

269 (1964) (citing Stromberg v. California, 283 U.S. 359, 369

(1931)).

C. Representatives and Candidates Have Adequate

Opportunity To Disassociate Themselves From

the Pro-Term Limits Message

The Court, in evaluating whether a person has been

compelled to speak, has considered the degree to which

the “objectionable” message will be associated with the

person and whether the person can disavow any connec-

tion with the message. See PruneYard Shopping Ctr. v.

Robins, 447 U.S. 74, 87 (1980); Hurley v. Irish-American Gay,

Lesbian and Bisexual Group of Boston, 515 U.S. 557, 576-77

5 For example, employees can expand their prerogatives

and powers by bargaining with employers, whereas

representatives cannot; and representatives are chosen to

govern those who choose them, whereas employees rarely

exercise authority over their employers.

17

(1995). In PruneYard, the Court reviewed whether a state

constitutional provision protecting the right of high

school students to distribute pamphlets in a shopping

mall unconstitutionally compelled the speech of the shop-

ping mall owner. The Court held that an owner of a

shopping mall could “expressly disavow any connection

with the message by simply posting signs in the area

where the speakers or handbillers stand.” Id. at 87.

In the present case, a candidate can easily disassoci-

ate himself from the state’s message. There is nothing to

prevent the representative from denouncing term limits.

He can sign the pledge while publicly declaring that

congressional term limits are undesirable. He can state

his opposition to term limits in every speech that he gives

and in every piece of campaign literature that he pro-

duces. He can reiterate his opposition to term limits in

the myriad questionnaires that he receives from news-

papers and interest groups. Similarly, an incumbent can-

didate can easily disassociate himself from the pro-term-

limits message while still following his instructions from

the voters of Missouri. He can cast his vote for term limits

and simultaneously explain to the public that he is only

doing so in order to comply with the people’s instruc-

tions. He can loudly criticize any term limits proposal,

and he can even urge his fellow legislators to vote against

term limits. There are innumerable opportunities for can-

didates to state their position on the term limits issue.

Because Article VIII in no way affects what a candidate

says and what he declares his position on term limits to

be, disassociation from the pro-term-limits message is

easily achieved.

18

°

The Eighth Circuit also attempted a slight twist on

the compelled speech argument. It suggested that if a

candidate resists his instructions and declines to sign the

pledge or vote in favor of term limits, then the label that

failed to compel him becomes compelled speech itself. In

other words, voters who read the message, “Declined to

pledge to support term limits,” will ascribe to the candi-

date the view that he does not support term limits. That,

according to the Eighth Circuit, is also compelled speech.

Gralike, 191 F.3d at 919.

However, this theory collapses quickly under its own

weight. If it is unconstitutional for the state to speak

about an individual whenever that speech has the effect

of encouraging others to (correctly or incorrectly) ascribe

a point of view to that individual, then some rather

absurd conclusions must follow. A state could not print

party labels below candidates’ names on ballots. The

label “Independent” placed below the name of a candi-

date who did not wish to declare a party might cause

voters to assume that the candidate is a moderate, when

in fact he is not. An incumbent governor (the spokesman

for the state) could not speak about his opponent in an

upcoming election. After all, such speech might cause

voters to misunderstand what his challenger’s views

really are. Moreover, under the Eightn Circuit’s theory,

the state in Paul would be deprived of its right to distrib-

ute flyers identifying someone as an “active shoplifter,”

because people might incorrectly ascribe to the identified

person the view that he enjoys shoplifting, when in fact

he dislikes it. Or consider Justice Rehnquist’s hypotheti-

cal billboard in Wooley, 430 U.S. at 721 (1977) (Rehnquist

J., dissenting) (arguing that state-sponsored billboard

19

proclaiming “Live Free or Die” would not compel

speech). Presumably, the state could permissibly erect a

billboard displaying the caption, “Disregarded Voters’

Instructions on Term Limits,” followed by a list of candi-

dates’ names. Under the Eighth Circuit’s compelled

speech theory, however, persons viewing this billboard

might ascribe a point of view to a candidate and thereby

compel the speech of the candidate. Plainly, the Eighth

Circuit’s definition of compelled speech encompasses far

too much activity.

Il. THE EIGHTH CIRCUIT ERRED IN APPLYING

STRICT SCRUTINY RATHER THAN THE FLEX-

IBLE STANDARD OF REVIEW APPROPRIATE

FOR WEIGHING FIRST AMENDMENT CHAL-

LENGES TO ELECTION LAWS

In deciding which standard of review to apply in this

case, the Eighth Circuit asserted simplistically that

because speech is regulated and because Article VIII is

“content-based,” then strict scrutiny applies. Gralike, 191

F.3d at 919-920. However, this reasoning predicates two

debatable assumptions. The awkward language used by

the Eighth Circuit belies this difficulty: “the Amendment

burdens candidates’ right to free expression by compel-

ling them to state or act in such a way as to portray a

position on the § 16 term limits proposal.” Id. at 919

(emphasis added). As noted above, Article VIII does not

restrict a candidate in the position that he “portrays.” He

may speak adamantly against term limits while acting in

accordance with the voters’ wishes, he may say nothing,

or he may disregard his instructions with the knowledge

20

that voters will be informed of his action. Article VIII

does not entail any scrutiny of the candidate’s speeches

or statements about term limits. It looks solely at the

candidate’s voting, or in the case of a non-incumbent, his

decision whether to pledge to vote a certain way in the

future. The second dubious assumption in the Eighth

Circuit’s reasoning is that Article VIII “is content-based

because it addresses the issue of term limits, completely

ignoring all other issues.” Id. at 919-920. The mere fact

that Article VIII is limited in scope to the term limits

issue does make it a content-based law. By this reasoning,

a more comprehensive instruct-and-inform law covering

every imaginable issue would not be content-based.

However, even if the Eighth Circuit’s two assertions

were correct, Article VIII would not automatically be

placed under strict scrutiny. The Supreme Court has pro-

duced a substantial body of case law concerning the

regulation of the content of election ballots. See, e.g.,

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)

(upholding a state’s ban on multi-party, or “fusion” can-

didates); Burdick v. Takushi, 504 U.S. 428 (1992) (upholding

a state law that completely prohibited write-in votes in

primary and general elections); Anderson v. Celebrezze, 460

U.S. 780 (1983) (striking down a state’s early filing dead-

line for independent candidates for President). In such

cases, individuals challenging the baliot regulations have

asserted First Amendment rights. The Court has acknowl-

edged that with elections, there inevitably must exist a

significant amount of regulation as to what is printed on

ballots. The Supreme Court has recognized the danger of

voter confusion and candidate fraud that might otherwise

occur: “As a practical matter, there must be a substantial

21

regulation of elections if they are to be fair and honest

and if some sort of order, rather than chaos, is to accom-

pany the democratic process.” Storer v. Brown, 415 U.S.

724, 730 (1974). The Court’s understanding to»! it must

allow the states room to regulate the content of election

ballots has led it to articulate a specialized form of anal-

ysis in such cases. A sliding scale is used when scrutiniz-

ing candidates’ First Amendment claims in this context.

Courts must weigh “the character and magnitude of the

asserted injury to the rights protected by the First and

Fourteenth Amendments that the plaintiff seeks to vindi-

cate ‘against’ the precise interests put forward by the

State as justifications for the burden imposed by its rule.”

Burdick, 504 U.S. at 434 (citing Anderson, 460 U.S. at 789).

The appropriate level of scrutiny depends on whether the

regulation is a “severe” restriction or a “reasonable, non-

discriminatory restriction” of First and Fourteenth

Amendment rights. Id. If it is the former, strict scrutiny is

applicable; if it is the latter, the state need only present an

“important regulatory interest” to justify the restriction.

Id.

It cannot be seriously contended that a mere ballot

iabel that conveys information to voters constitutes a

“severe” restriction on the exercise of First and Four-

teenth Amendment rights. At worst, the ballot label is an

inconvenience to representatives who would rather not

have their conduct brought to the attention of voters. As

noted above, it in no way restricts what the candidate

may say about term limits or any other issue. Nor does it

discriminate against any class of candidates: each candi-

date may choose whether or not to take actions triggering

the label, just as he may choose his party. In weighing

22

this tenuous injury against the interest of the state in

communicating information about elected officials to

voters, the state’s interest clearly outweighs the rights of

the respondent. The people of Missouri decided that term

limits is an important enough constitutional reform to

necessitate instructions to candidates and representatives.

Because candidates may easily obscure their voting and

their position on this issue, the people of Missouri

deemed it necessary to provide factual information on the

ballot about candidates’ actions. They decided that hav-

ing that information on the ballot was just as useful as

knowing the candidate’s party. It was more useful than

knowing the candidate’s occupation or city of residence -

information provided on many ballots across the country.

Because there is no severe restriction on the First Amend-

ment rights of the candidate, and the state has an impor-

tant interest in communicating this information to voters,

Article VIII survives the appropriate First Amendment

scrutiny.

Ill. EVEN IF ARTICLE VIII IS REVIEWED UNDER

STRICT SCRUTINY, THE LAW SERVES A COM-

PELLING STATE INTEREST AND IS NARROWLY

TAILORED TO SERVING THAT INTEREST

Even if Article VIII were to be considered a severe

restriction on First Amendment rights and strict scrutiny

were to be applied, it would withstand such scrutiny. The

citizens of Missouri expressed at least two compelling

interests when they voted to enact Article VIII: an interest

in informing themselves about the actions of their elected

representatives, and an interest in enacting the reforms

embodied in a congressional term limits amendment.

23

With respect to the first interest, the Supreme Court has

recognized the importance of providing information to

voters. “There can be no question about the legitimacy of

the State’s interest in fostering informed and educated

expression of the popular will in a general election.”

Anderson, 460 U.S. at 796. Although the Court in Anderson

only acknowledged that the state’s interest in fostering

informed voting was “important and legitimate,” without

considering whether the interest rose to the compelling

level, id., there can be little doubt that voters have a

compelling interest in demanding information that they

deem relevant regarding candidates for political office.®

Such information is essential to the vitality of representa-

tive democracy. Without it, elections become little more

than a charade, devoid of meaningful expression of voter

preferences.

The second compelling interest possessed by the citi-

zens of Missouri is their interest in pressing for a consti-

tutional reform that they favor. The U.S. Constitution

contemplates that “We the People” have some role in its

¢ The obvious exception to this principle would occur

where a state printed on the ballot information identifying a

candidate’s race, which the Court has held to violate the Equal

Protection Clause of the Fourteenth Amendment. Anderson v.

Martin, 375 U.S. 399 (1964). In the present case, however, the

Equal Protection Clause does not operate to shield candidates

who decline to sign the term limits pledge. If it did, then the

provision of party information on ballots would be similarly

vulnerable to Equal Protection challenge. In many states and

cities, one political party enjoys overwhelming public support.

In such environments, candidates who identify themselves with

a disfavored party would undoubtedly prefer that party

information not be displayed on the ballot.

24

creation and amendment. U.S. Const. preamble. In order

to secure the constitutional reform that they seek, Mis-

souri citizens must direct their representatives to act on

their behalf. Reformers who favor term limits often point

to the corrupting influence that long congressional terms

exert on office holders. Regardless of whether the

reformers have come up with an effective cure for the

corruption that they perceive, they have a compelling

interest in attempting to improve the integrity of the

political system. A similar state interest was present in

Buckley v. Valeo, 424 U.S. 1 (1976). In that case, the Court

found that the public interest in reducing the appearance

of corruption in representative government was a suffi-

cient interest to override First Amendment concerns

regarding campaign contribution limits. Id. at 27. “To the

extent that large contributions are given to secure a politi-

cal quid pro quo from current and potential office

holders, the integrity of our system of representative

democracy is undermined.” Id. at 26. In enacting Article

VIII, Missouri voters expressed their belief that long

incumbency also undermines the integrity of our system

of representative democracy. Whether they are correct or

not, they have a compelling interest in pursuing the

reform that they desire.

Article VIII is narrowly tailored to serving these com-

pelling interests. The Eighth Circuit credulously sug-

gested that voluntary programs, such as debates and

voter information guides, could adequately serve the.

voters’ interest in obtaining information regarding the

candidates’ support for congressional term limits. Gralike,

191 F.3d at 921. This suggestion ignores the fact that if a

25

candidate declines to participate in such voluntary pro-

grams, he may continue to conceal his actions or inten-

tions with respect to term limits. Or, he may simply

mischaracterize his own voting record. Moreover, this

suggestion grossly underestimates the obfuscation that

occurs when candidates are asked to take a position on

term limits. Representatives often voice support for term

limits when stumping before the voters even though they

obstruct term limits when in Congress. This sleight of

hand was best demonstrated when, “[iJn February 1997,

representatives obscured their opposition to congres-

sional term limits by voting on several variations of the

amendment, allowing them to vote in favor of at least

one, secure in the knowledge that none would pass.””

Voluntary debates and information pamphlets are ineffec-

tual against such deceptive behavior. Ballot labels are

therefore necessary to inform voters whether or not their

representatives have complied with their instructions.

Drawing a line in the sand, in the face of such double-

speak, allows citizens to bring accountability back to

public office. The use of ballot labels guarantees that all

voters will receive the desired information regarding

their representatives and candidates. Because the state

will be unable to reach as many voters through other

means, such as voter information guides or debates, the

ballot label is narrowly drawn to advance the citizens’

compelling interests.

7 Kris W. Kobach, May “We the People” Speak?: The Forgotten

Role of Constituent Instructions in Amending the Constitution, 33

U.C. Davis L. Rev. 1, 6 (1999).

26

IV. MISSOURI’S ARTICLE VIII BALLOT LABEL IS

ITSELF CORE POLITICAL SPEECH OF THE PEO-

PLE, PROTECTED BY THE FIRST AMENDMENT

In the debates of the First Congress regarding the

proposal of what would become the Bill of Rights, James

Madison considered an explicit “right to instruct” provi-

sion to be unnecessary. He recognized that the proposed

freedom of speech that would become part of the First

Amendment would adequately protect the right of the

people to speak collectively in the form of constituent

instructions.’ While it is may seem odd that the body

politic can hold First Amendment rights, such a view was

consonant with political thought at the time of the found-

ing. “Public liberty was . . . the combining of each man’s

individual liberty into a collective governmental author-

ity....”9 Indeed, “public liberty was most fully realized

when the people themselves exercised their role in gov-

ernment.” Id. at 25. Through the use of ballot labels and

constituent instructions, the people of Missouri are exer-

cising a public liberty to communicate specific informa-

tion related to the conduct of public figures. It is core

political speech that is, itself, protected by the First

Amendment. The labels provide information that the

majority of voters wish to receive on a matter of great

public concern. As the Court noted in Buckley, such infor-

mation on the attributes of political candidates should be

given the broadest protection by the First Amendment.

8 Id. at 69, citing 1 Annals of Cong. 766 (Joseph Gales ed.,

1789).

9 Gordon S. Wood, The Creation of the American Republic

1776-1787, 24 (2d ed. 1998).

27

“Discussion of public issues and debate on the qualifica-

tions of candidates are integral to the operation of the

system of government established by our Constitution.”

424 US. at 14.

In Rosenberger v. Rector and Visitors of Univ. of Va., 515

U.S. 819 (1995), the Court acknowledged that such speech

rights of the majority exist and that when the government

speaks for the majority it may regulate the content of its

own expression. Id. at 833 (“[W]e have permitted the

government to regulate the content of what is or is not

expressed when it is the speaker. . . . ”). Moreover, the

Court has noted that the First Amendment recognizes “a

basic difference between direct state interference with a

protected activity and state encouragement of an alterna-

tive activity consonant with legislative policy.” National

Endowment for the Arts v. Finley, 524 U.S. 569, 588 (1998)

(citing Maher v. Roe, 432 U.S. 464, 475 (1977)). The ballot

label is not a direct interference with speech rights, but

merely commentary regarding a course of action that the

representative or candidate chose not to take. This com-

mentary is speech. Representatives and candidates are

still free to speak and vote as they wish, but there is no

guarantee they may do so without comment. And this has

been so since the First Amendment was ratified. “[T]here

is practically universal agreement that a major purpose of

th(e] [First] Amendment was to protect the free discus-

sion of governmental affairs . . . of course includ(ing)

discussions of candidates. .. . ” Buckley v. Valeo, 424 U.S.

1, 14 (1976) (citing Mills v. Alabama, 384 U.S. 214, 218

(1966)). If a candidate objects to Article VIII and to the

message conveyed on the ballot labels, the appropriate

remedy is found at the ballot box, not the courtroom. The

28

candidate is free to attempt to persuade the people of

Missouri to withdraw their instructions and to rescind

Article VIII. “When the government speaks . . . to pro-

mote its own policies or to advance a particular idea, it is,

in the end, accountable to the electorate and the political

process for its advocacy.” Board of Regents of the Univ. of

Wis. Sys. v. Southworth, 120 S.Ct. 1346 (2000).

The long-standing practice of legislative censure of

government officials is a form of collective speech that is,

in some ways, analogous to Article VIII. In censuring, the

members of the legislature collectively exercise their First

Amendment speech rights to comment on the actions of a

government official..° The condemned conduct of the

official may or may not, itself, involve expressive activity.

Censure differs from the Article VIII ballot labels in that

it is unambiguously critical, rather than merely informa-

tive, and it creates a permanent legislative record of the

condemnatory message. The U.S. House and the Senate

each have passed more than a dozen resolutions criticiz-

ing the misconduct of presidents and other high-ranking

officials.1! The most notable instance occurred when the

Senate censured President Andrew Jackson for firing his

Treasury Secretary for refusing to carry out his instruc-

tions to withdraw national bank funds and deposit them

in state banks.!2 In addition to resolutions of censure, the

10 Michael J. Gerhardt, The Historical and Constitutional

Significance of the Impeachment and Trial of President Clinton, 28

Horstra L. Rev. 349, 377 (1999).

12 Michael J. Gerhardt, The Constitutionality of Censure, 33 U.

Ricu. L. Rev. 33, 35 (1999).

12 Id. at 35-36.

29

House and Senate have passed thousands of resolutions

expressing opinions on various matters of public con-

cern.'? Taken together, resolutions of censure and resolu-

tions merely expressing collective opinion represent a

long tradition of government speech that is informative,

critical, or both.

Respondent cites Timmons v. Twin Cites Area New

Party, 520 U.S. 351, 363 (1997), for the proposition that

“[bjallots serve primarily to elect candidates, not as fora

for political expression.” Res. Brief on Petition for Writ of

Cert. 19. Timmons, however, is inapposite because it dealt

with candidates wishing to express views on the ballot.

Here the state, as opposed to a candidate, is speaking on

the ballot. A contrary holding in Timmons effectively

would have enabled candidates to appropriate state prop-

erty for their own use. The Court’s opinion still left room

for the state to speak on its own property. Precisely

because the ballot is the state’s property, the state must

have a substantial amount of control over what is placed

on it. Nothing in Timmons suggested that the body politic

may not use the ballot for political expression. Indeed, it

may be inferred from Timmons that states retain consider-

able discretionary control over the content that may be

placed on the ballot.

13 Id. at 36.

30

CONCLUSION

For the foregoing reasons, the judgment below

should be reversed.

Respectfully submitted,

Patrick T. O’ Brien*

Butter, Giater & O’Brien

811 S. 13th St.

Lincoln, Nebraska 68508

(402) 475-0881

JoHN M. BotHmM

Lecat Counset, THE INITIATIVE

AND REFERENDUM INSTITUTE

811 S. 13th St.

Lincoln, Nebraska 68508

(402) 475-0881

*Counsel of Record