Amicus Curiae Brief — Cook v. Gralike

FILED

No. 99-929 JUN 23 2009

si nes | CLERK

Supreme Court, U.S.

Supreme Court of the United States

S

REBECCA McDOWELL COOK,

Petitioner,

Vv.

DON GRALIKE,

Respondent.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

°

BRIEF OF AMICUS CURIAE,

MISSOURI TERM LIMITS ON BEHALF

OF PETITIONER, REBECCA McDOWELL COOK

AS SECRETARY OF STATE FOR THE

STATE OF MISSOURI

¢

STEPHEN J. SAFRANEK

Counsel of Record

Professor of Law

Ave Maria School of Law

3475 Plymouth Road

Ann Arbor, MI 48105-2550

(734) 827-8096

Legal Counsel for Amicus Curiae

Missouri Term Limits

po we

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES......................05. ii

INTEREST OF AMICUS CURIAE .................. 1

SUMMARY OF ARGUMENT....................05- 2

EEE ociacdeventetsadccuusnessiaceuuecaaee 4

PL: . cc rbesauusiiedetadebeaniae 4

II. Brief History Of The Adoption Of The “Aus-

tralian Ballot” In The United States........ 5

III. The Ballot Information Provided Under Mis-

souri’s Informed Voter Law Is True, And

More Accurate Than Other Voting Cues... 9

IV. States Regularly Provide Voters With Informa-

tion At The “Climactic Moment Of Choice” .. 13

A. The Seventeenth Amendment To The

United States Constitution Provides An

Analogy For Missouri’s Voter-Approved

Informed Voter Law................0.- 14

B. “Binding” Instructions To Delegates At A

State Constitutional Convention Are

es 4 ocd ndicdaduunetdees 18

C. States Have The Power To Control The

Content Of Their Election Ballots ...... 21

1. Political Party Labels, Emblems, And

Other Information.................. 24

2. Incumbency Designations........... 26

3. Residency Or Nicknames........... 28

OS dccucdsucseuenusennbesas 28

D. The Ballot Has Been Used To Provide

Voters With Information Regarding A

Candidate’s Position On A Constitu-

tional Amendment..................5.. 29

SED cc ncuscssdeecouseceaebdcscneunseusues 30

TABLE OF AUTHORITIES

Page

Cases:

Anderson v. Celebreeze, 460 U.S. 780 (1983)........... 13

Anderson v. Martin, 375 U.S. 399 (1964)............ 1, 14

Bond v. Floyd, 385 U.S. 116 (1966) .......... 0.60 e eens 29

Buckley v. Valeo, 424 U.S. 1 (1976) (Per Curiam) ..13, 23

Burson v. Freeman, 504 U.S. 191 (1992)........... 5, 6, 7

Clough v. Guzzi, 416 F.Supp. 1057 (D.Mass. 1976) .... 14

Gralike v. Cook, 191 F.3d 911 (8th Cir. 1999).......... 14

Graves v. McElderry, 946 F.Supp. 1569 (W.D.Okla.

DUC CREGSESOSSUeSSKecencesceveesceescecoceeceooes 9

Ihlenfeldt v. State Election Bd., 425 F.Supp. 1361

SE DONORS ee ececccecersescnseccvsceseccccccoce 25

In re Opinion of the Justices, 148 So. 107 (Ala. 1933) 19, 21

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

EEN EDEMA PTET TT ST CTT TTT ETETTT TTT 5

Peterson v. Stafford, 490 N.W.2d 418 (Minn. 1992),

cert. denied, 507 U.S. 1033 (1993)........... 14, 26, 27

Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992)...... 11, 12

Tashjian v. Republican Party of Connecticut, 479 U.S.

DLC cetasccedeapsnceveescenccesces 3, 4, 10, 11

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

SEELEY STP CP TOT ETC T TT ETT STETTTETTT TTT TT 25

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONAL PROVISIONS:

Mich. Const. of 1963, art. VI, §24................4.. 26

CT vcscegeenncesosteceeneeess 15

ee Gy Gs Ws Oi Ge BD ccccccecccccccescccecces 8, 21

DE Mi Wessedcnecsccceccoecconceseocecssess 19

U.S. Const. amend. XVII...............+4. 2, 14, 15, 18

Ee 18, 19

Ee 18, 19, 20

i ih << cndcepenecdvoneeecensasess 24

STATUTES:

Code of Ala. §17-B-4...........cccccccccscrceeceeees 24

i ih i « oncscaspedeceeceoesveuseoooers 22

i Oy EI con ecocenvcctcccosecesedoeseses 24

Alaska St. Ann. §15.15.030(4).... 0... 6. 6c cece eee enee 28

Alaska St. Ann. §15.15.030(5)... 0.2.0.0... 0c e cee eeues 24

Ariz. Rev. St. Ann. §16-341(D) ...........666 cee ceues 25

Ariz. Rev. St. Ann. §16-502(E)...........66.00005 22, 24

Ariz. Rev. St. Ann. §16-703(C) ........ 66 eee eee eeeee 21

Ariz. Rev. St. Ann. §16-704(A) ......... 66-6 e ee eeeeee 21

Ariz. Rev. St. Ann. §16-705(C) ..........000eeeeeeees 21

iv

TABLE OF AUTHORITIES - Continued

Page

Ark. Code of 1987 Ann. §7-5-208(f)(5)............... 24

Ark. Code of 1987 Ann. §7-7-305(c)(1)(A)............ 28

Ark. Code of 1987 Ann. §7-7-305(c)(1)(B)............ 28

West’s Ann. Calif. Code, Elections, §13105(a)(c). ..24, 25

West’s Ann. Calif. Code, Elections, §13106........... 27

West’s Ann. Calif. Code, Elections,

PP occcncesesnecescccesessascettes 28

Came: Ghee, GR. Aa, GeO cc cccccccccccscccsses 25

Colo. Rev. St. Ann. §1-5-403(4)..............0000. 24, 25

Colo. Rev. St. Ann. §1-5-404(1)(a)(b)(c) .............. 22

Can, GS GR. GAG, GG ccc ceccecccoscnseseces 24

ee, CGD AMR, THD Tb Be cv cccccccccccccccesss 24

Del. Code Ann., Title 15, §$4502(a)................ 22, 24

as. Code Amm., THES BB, GGG oc ccccccccccccccccces 24

ae. GOED Aa. THD TE BGO ccccscccccccccccccces 21

Sa: GR, i: SE oecccestucdacetendesousanees 24

ee, GR. A ED v occcctendscescndecdéacees 22, 24

ee GR. GM Se ncédatececacencancuncucessats 21

Official Code of Georgia Ann. §21-2-284(c).......... 26

Official Code of Georgia Ann. §21-2-284.1(a)(b)(3) .... 26

Official Code of Georgia Ann. §21-2-285(c) ...22, 24, 26

Vv

TABLE OF AUTHORITIES - Continued

Page

ee Se Bs HD b avececcceccniesccesecesss 24

Idaho Code Ann. §34-904........... 6.6 c cece eeeees 24

ee Ge BM, BG occ cccccccccccvcescccescsces 24

Idaho Code Ann. §34-2205...............cceeeeeeeee 21

West’s Smith-Hurd Ill. Comp St. Ann., Title 10,

DEINE cccndsndeendudtetenasneassceduanunseesosse 24

Burn’s Indiana St. Ann. §3-8-6-5 ................. 24, 25

Burn’s Indiana St. Ann. §3-8-7-11 ................ 24, 25

Burn’s Indiana St. Ann. §3-10-5-7 ..............2245. 21

Burn’s Indiana St. Ann. §3-10-5-9 ..............2245: 21

Burn’s Indiana St. Ann. §3-11-2-5 ................ 24, 25

Burn’s Indiana St. Ann. §3-11-2-6(a)(b)(c)............ 23

Burn’s Indiana St. Ann. §3-11-2-9 ..............040-5. 25

Reed Gale Ba, BERND cccccccecosccccccccscceces 24

aes GE, BM BG hccdesccccccccicecescescccss 24

Ky. Rev. St. Ann. §118.325(2)(4) ............-+++-- 24, 25

Ra, GE, Be. GD Sc ccccscnccsccccccencccsccces 24

Maine Rev. St. Ann., Title 21-A, §602(2)(A)(B) ....... 24

Maryland Code of 1957, art. 33, §9-210(g)........... 24

Maryland Code of 1957, art. 33, §9-210(j)(2)(i){ii) . ... 23

Mass. Gen. Laws Ann., ch. 53, §34.............-. 26, 28

Mass. Gen. Laws Ann., ch. 54, §41............... 26, 28

Mich. Comp. Laws Ann. §168.696(1) ...............-. 24

vi

TABLE OF AUTHORITIES - Continued

Page

Minn. St. Ann. §204B.07(1)(c) ...........cceeeeeeeees 25

Minn. St. Ann. §204B.36(2)..............0ceeeeeee 24, 25

BE, GP. AG, Gs co ccccccsccceccoscsccccese 26

West’s Ann. Miss. Code, §23-15-359(2)............... 24

Vernon’s Ann. Missouri St. §115.237(2).............. 24

Mont. Code Ann. §13-10-203 ................ceeeeeee 24

Mont. Code Ann. §13-10-209(1)(a).............00005 24

ee, Game GA. TP co cc cccccccccccccsccccce 24

Mont. Code Ann. §13-26-103 ..............ce ee eeeeee 21

Nevada Rev. St. Ann. §293.267(3)(a)...............4. 24

IL. Rew. St. Amm. GOBER)... ccccccccccccccs 23, 24

es TD Gb Gs Sin wncccccoccecedccesecsaees 24

ee ee Ss SE oncdévcdnceescacécdcocsene 25

Sy See Gs cc nccncanddivecteusssctacosnces 24

ee Ge Gs CEE nd. ccansccocecessoucasesscoceund 25

Ss eh Gs Eon ncccccosccescosucedeosesense 25

SE Ge ES ndenedossncevencteensecacuntuencd 24, 25

McKinney’s Consolidated Laws of N.Y. §2-124....... 25

McKinney’s Consolidated Laws of N.Y. §6-120....... 25

McKinney's Consolidated Laws of N.Y. §6-146(1) .... 25

McKinney’s Consolidated Laws of N.Y.

SPP < cnnctcdeoccnescasseceueuéonnsecese 24, 25

McKinney’s Consolidated Laws of N.Y. §7-104(5) .... 25

Vii

TABLE OF AUTHORITIES - Continued

Page

McKinney’s Consolidated Laws of N.Y. §7-106....24, 25

Ss Ge Gy See Sc ces dccncdccccccecscsesess 24

N.D. Century Code Ann. §16.1-06-05(3) ............. 24

Baldwin’s Ohio Rev. Code Ann. §3523.04............ 21

Baldwin’s Ohio Rev. Code Ann. §3505.03(B)......... 24

es Ge Gs re decendccccssecsececces 23, 24, 25

ey Ee Bs SI ne cccccccccescceceseseeés 24

Se Se ek a ccccccccesescocscccvceses 27

Purdon’s Penn. St. Ann., Title 25, §2963(b).......... 24

Gen. Laws of R.I. Ann. §17-15-8 ... 2.2... eee eee 24

Gen. Laws of R.I. Ann. §17-19-9.1............ 23, 24, 26

es Sy ND CPD vce cccccecccccccccececees 21

S.D. Codified Laws §12-16-2 ........... ccc eee eeees 24

Se, Ge As Ge se vccccecccccccceccccccens 23

es GD GRA, GP coc cccccncccdesccccceces 24

Tenn. Code Ann. §2-5-207(d)(1) ....... 2.000 cee eeeee 24

Vernon’s Texas St. and Codes Ann., 5 §52.065(d)....23, 24

Vernon's Texas St. and Codes Ann. §52.067 ......... 24

Utah Code Ann. §20A-15-103 ............ 055 e ee eeees 21

Utah Code Ann. §20A-6-301 .......... 6.6000 e cues 24, 25

5 FF S&S § XO OPP 21

Vt. St. Ann., Title 17, §2472(b) ............5-0ceeeees 24

Vili

TABLE OF AUTHORITIES - Continued

Page

Rev. Code of Wash. Ann. §29.30.020..............4.: 24

Rev. Code of Wash. Ann. §29.74.060...............5. 21

W.Va. Code of 1966, §3-6-2 ........... ccc eeceeeeeeee 24

W.Va. Code of 1966, §3-6-2(c)(3).. 2.6... cece cee eee 23

Wis. St. Ann. §5.64(1)(b) . 2.0... cece eee eee 23, 24

Wyo. St. Ann. §22-6-120(a)(Vii).... 6... cece ee eee ee 24

OTHER AUTHORITIES:

26 Am. Jur. 2p Elections §299 (1996) ..............005. 8

Kevin Cofsky, Comment, Pruning the Political

Thicket: The Case for Strict Scrutiny of State, 145

Se Tip Ee TR TED GRR ccc cccccccscccsccccesces 8, 9

Donald E. Daybell, Note, Guarding the Treehouse:

Are States “Qualified”to Restrict Ballot Access in

Federal Elections, 80 B. U. L. Rev. 289 (2000)....... 10

L.E. FrepMAN, THE AUSTRALIAN BaALLot (1968) ...5, 6, 7, 8

Elizabeth Garrett, The Law and Economics of

“Informed Voter” Ballot Notations, 85 Va. L. Rev.

GE GENO cvccesccccccecsecccesceseces 3, 10, 11, 12

Richard L. Hasen, Entrenching the Duopoly: Why

the Supreme Court Should not Allow the States to

Protect the Democrats and Republicans from Politi-

cal Competition, 1997 Sup. Cr. Rev. 331............. 10

Georce H. Haynes, 1 THe Senate oF THE UNITED

States: Its History AND Practice (Houghton, Mif-

flin Co. 1938) (reissued Russell and Russell

Piinvtc0106eénecbetecdekduensdeneusselscbude teed 16

ix

TABLE OF AUTHORITIES - Continued

Idaho Session Law, House Bill No. 16, §41 (1909) ..

P.K. Jameson and Marsha Hosack, Citizen Initia-

tives in Florida: An Analysis of Florida's Constitu-

tional Initiative Process, Issues, and Alternatives,

23 Fra. St. U. L. Rev. 417 (1995) ..............

Davip B. Mactesy, Direct LEGISLATION VOTING ON

BaLLot Propositions IN THE UNiTep States (1984)

Nationa Party PLatrorMs, 1840-1972 (Univ. of Ill.

Press, 5th ed. 1973).........cccccecccccecueces

1909 Laws of Nebraska, ch. 51, §2..............

Bradley A. Smith, Judicial Protection of Ballot-

Access Rights: Third Parties Need Not Apply, 28

Harv. J. On Lecis. 167 (1991) ..............005.

Washington Session Laws, 1907, ch. 209, §37....

Page

.. 16

1

BRIEF OF MISSOURI TERM LIMITS

AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

INTEREST OF AMICUS CURIAE

Missouri Term Limits is the local grassroots organiza-

tion that drafted, sponsored and successfully qualified

the initiative (the “infornved voter law”) that was enacted

by the voters of Missouri, is now part of the Missouri

Constitution, and is being challenged before this Honor-

able Court.! This case involves the right of the people of

Missouri to instruct their elected officials and inform

themselves as voters. No more precious right exists in the

United States.

Like other state-sponsored voting cues - political

party designations, party emblems, residency, and incum-

bency designations - the informed voter law assists

voters in the voting booth. And, like other information,

the informed voter law will influence some voters. This

Honorable Court has only once struck down information

that was provided on a state’s election ballots. See Ander-

son v. Martin, 375 U.S. 399 (1964) (striking down on equal

protection grounds a Louisiana statute requiring ballots

to designate the “race” of the candidates).

The informed voter law fosters a “legitimate govern-

mental interest in informing the electorate as to candi-

dates.” Anderson v. Martin, 375 U.S. at 403. The informed

voter law instructs candidates and informs the citizenry

regarding a candidate’s voting intentions or record

thereby allowing voters to assess that candidate’s quali-

fications. Missouri Term Limits modeled the informed

1 Pursuant to Supreme Court Rule 37.6, no counsel for any

party to these proceedings authored, in whole or in part, this

Amicus Curiae Brief. Furthermore, no other entity or person,

aside from Amicus Curiae, made any monetary contribution for

the preparation or submission of this brief to this Honorable

Court.

2

voter law after the ballot language used by states to

adopt the Seventeenth Amendment.

An intense political debate surrounded the adoption

of the informed voter law. That debate led the citizenry of

Missouri to include the informed voter law in their Con-

stitution.

The power of the people to regulate the content of

their election ballots through the initiative should cer-

tainly not be more circumscribed than the legislature's

power to control the contents of and access to the ballot.

Missouri Term Limits seeks to protect its interests and the

interests of the millions of Missouri voters that are at

stake in this case.

SUMMARY OF ARGUMENT

The citizenry has a right to instruct candidates and to

provide themselves with truthful ballot information

about candidates. Since the creation of the modern ballot,

states, essentially the two major parties, have regulated

candidates’ ability to access the election ballot and the

contents of such ballots by a multitude of multi-faceted

statutes. State election codes are extensive. In this case,

the citizens, not the legislators have regulated the elec-

tion ballot.

Missouri Term Limits, as Amicus Curiae in support

of the Petitioner, will show how the informed voter law is

consistent with our country’s history of ballot instruction

and information. It will do so in three ways. First, Amicus

Curiae will provide this Honorable Court with an histori-

cal perspective on the adoption of the “Australian ballot”

as part of electoral reforms during the Nineteenth Cen-

tury. Second, Amicus Curiae will demonstrate that the

information under consideration in this case is accurate

and true, and therefore more important than the informa-

tion used by the two major parties to electioneer on the

ballot. Finally, Amicus Curiae will show this Honorable

Court how states have traditionally used the ballot to

“instruct” and inform. Amicus Curiae will show how

3

Missouri Term Limits modeled the informed voter law

after other ballot information, specifically the ballot

instructions used to promote the adoption of the Seven-

teenth Amendment. In addition, Amicus Curiae will

show that the vast array of state ballot information con-

stitutes “issue discrimination” that is constitutional.

The informed voter law, Article VIII, §§15-22 of Mis-

souri’s Constitution, is constitutional. It is more informa-

tive and less discriminatory than virtually any other

information that appears on ballot. The informed voter

law provides information that is informative and truthful.

It is far more useful for the citizenry than party labels.

Indeed, given the huge differences among members of

the same political party, and given the fact that candi-

dates often explicitly reject issues in party platforms, the

informative value of party labels is questionable.? Party

affiliations traditionally represented specific political

beliefs and provided the voters with a “shortcut” “that

economize[d] on information about issues.”? However,

due in part to the two-party political system together

with single-member electoral districts, there has been a

“convergence of the parties with respect to their positions

on issues . . . Because political parties seek to gain wide-

spread support, they phrase their political commitments

in general terms so they can attract candidates and voters

of diverse ideologies.”4

In Tashjian v. Republican Party of Connecticut, 479 U.S.

208 (1986), this Honorable Court stated,

To the extent that party labels provide a short-

hand designation of the views of party candi-

dates on matters of public concern, the

identification of candidates with particular par-

ties plays a role in the process by which voters

2 Elizabeth Garrett, The Law and Economics of “Informed

Voter” Ballot Notations, 85 Va. L. Rev. 1533, 1548-50 (1999).

3 Id. at 1548.

4 Id. at 1548-49.

+

inform themselves for the exercise of the fran-

chise.

Id. at 220. More importantly, as one commentator has

explained,

Information provided by informed voter ballot

notations, assuming that the information is accu-

rate, could allow the electorate to take advantage

of a shortcut to candidates’ ideologies, which in

turn would help voters predict the behavior of

candidates once they are elected. By allowing

both incumbents and challengers a credible pre-

commitment opportunity and preventing candi-

dates from taking different positions for different

audiences, ballot notations could provide voters

with a more accurate signal of ideology than

current campaign tactics. Moreover, the informa-

tion is more likely to reveal ideology in a more

precise way than cues on which voters now rely,

such as party affiliation.®

ARGUMENT

I. INTRODUCTION

Over twenty states provide citizens with some form

of statewide direct democracy.® “Initiatives generally

allow the public to bypass the legislature and reserve

direct lawmaking power in the voters of the state.””7 They

5 Id. at 1550.

6 States that currently have some form of statewide direct

democracy are: Alaska, Arizona, Arkansas, California,

Colorado, Florida, Idaho, Illinois, Maine, Massachusetts,

Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada,

North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Utah,

Washington, Wyoming, and the District of Columbia.

7 P.K. Jameson and Marsha Hosack, Citizen Initiatives in

Florida: An Analysis of Florida’s Constitutional Initiative Process,

Issues, and Alternatives, 23 Fra. St. U. L. Rev. 417, 418 (1995).

5

are “the means by which voters can correct legislative

sins of omission and the popular referendum [is] the

means of correcting legislative sins of commission.”®

Initiative and referendum laws were passed on a

theory of trusting the individual and distrusting politi-

cians and political parties, as well as legislatures.? These

laws emphasize that it is the people who govern in the

United States.!° In this case, the citizens of Missouri

approved a ballot initiative that instructs legislators

regarding the citizens’ desire for term limits, and informs

voters how legislative candidates intend to act or have

acted on a specific term limits amendment. The ballot

language challenged in this case is the citizens’ insurance

policy for keeping federal and state legislative candidates

honest in their electioneering practices before the people.

Il. BRIEF HISTORY OF THE ADOPTION OF THE

“AUSTRALIAN BALLOT” IN THE UNITED

STATES

Prior to the use of the paper ballot in the electoral

process, public officials were elected by viva voce or by a

show of hands. This precluded secrecy and provided the

proper atmosphere for bribing and intimidating voters.

By the Revolutionary period, however, most of the states’

constitutions required paper ballots.!2 Voters themselves

wrote their own ballots, filled them out at home, and took

8 Davip B. Mactesy, Direct LecisLaTion VoTING ON BALLOT

PROPOSITIONS IN THE UNrTeED States 35 (1984).

9 Id. at 20.

10 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404 (1819)

(Marshall, C.J.) (“The government of the Union... . is

emphatically and truly, a government of the people.”).

11 See Burson v. Freeman, 504 U.S. 191, 200 (1992).

12 Id. at 200; L.E. FREpMAN, THE AUSTRALIAN BALLot 20 (1968).

6

them to the polling places.'* Beginning in the 1820's,

several court decisions affirmed the use of printed paper

ballots, and Maine became the first state, in 1831, to enact

legislation governing the paper and ink to be used for

ballots.!4

By the mid-Nineteenth Century, many people viewed

the voting process in the United States as meaningless

because political parties pre-printed their own ballots

that were given to the voters at the polls.!° The parties’

ballots were typically printed with bright colors, and

unique designs and emblems so that the ballot could be

identified by the parties from a distance.!© This contrib-

uted to the problem of voters being bribed and intimi-

dated by party machines.!”

Distinctly colored paper ballots allowed “ballot ped-

dlers” to determine that voters used the ballot by follow-

ing voters to the ballot box. Peddlers would wait outside

of the polling place for voters to come out at which time

voters would be paid for using the ballot.!® This situation

lead to “scuffling and intimidation.” Oftentimes the scuf-

fling and intimidation were artificially created by the

parties in order to scare away “decent people and mag-

nify the coerced vote.”?9

13 Burson v. Freeman, 504 U.S. at 200.

14 FREDMAN, supra note 12, at 21-22.

1S Id. at ix.

16 Burson v. Freeman, 504 U.S. at 200.

17 FREDMAN, supra note 12, at ix; and Bradley A. Smith, Note,

Judicial Protection of Ballot-Access Rights: Third Parties Need not

Apply, 28 Harv. J. On Lecis. 167, 172 (1991) (“[EJach party

typically printed ballots in the color of its choice, which made

secret balloting all but impossible and allowed for regular

episodes of bribery, coercion, and intimidation.”).

18 FREDMAN, supra note 12, at 22.

19 Td. at 24.

7

Other countries experienced similar problems with

their electoral systems. To address these problems, Bri-

tain, in 1872, replaced its system of oral voting with the

“Australian ballot” so named for the system that had

been first created in Australia in the 1850’s. Under this

system, the government determined what constituted

“nomination”, what was printed on ballots, and distrib-

uted ballots to the voters. In addition, the government

ballot included all of the candidates’ names, political

advertising in the forms of legends or symbols and pro-

vided for polling booths in which only election officials,

“scrutinees” for the candidates, and voters could enter.

These measures were designed to improve the secrecy of

the voting process.2° Belgium was the next to follow in

adopting the “Australian ballot” system in 1877.2!

By 1882, the Philadelphia Civil Service Reform Asso-

ciation advocated the adoption of the “Australian ballot”

in the United States.2? The first Australian ballot law

passed in the United States in 1888 when Louisville,

Kentucky incorporated the “Australian ballot.”

Louisville provided voters an official blanket ballot at the

city’s expense. Candidates were nominated by petition

and were required to pay a twenty-dollar filing fee. Can-

didates’ names were arranged alphabetically under the

office for which they were running, and a “write-in” vote

was provided.?4

Massachusetts was the first state to adopt the “Aus-

tralian ballot” system in 1888 followed by New York.?5 By

the end of 1889, ten states had adopted the “Australian

20 Id. at ix; and Burson v. Freeman, 504 U.S. at 202.

21 Burson v. Freeman, 504 U.S. at 202.

22 Burson v. Freeman, 504 U.S. at 203.

23 FREDMAN, supra note 12, at 31.

24 Id. at 31, 46, 47.

25 Burson v. Freeman, 504 U.S. at 203; Smith, supra note 17, at

172.

ballot” system,?© and by 1900, that number had increased

to thirty-nine.?” Under Article I, §4, the States exercised

their plenary power to determine the “manner” of elec-

tions subject to alteration by the federal legislature.

Indeed, today, the states have a variety of ballot types.

Although the States have adopted dissimilar “Australian

ballot” systems, two major aspects of the system have

remained: the maintenance of secrecy while voting and

an official ballot that included all of the candidates’

names printed and distributed at the states’ expense.”®

The introduction of the “Australian ballot” system

throughout the United States minimized the threat of

visible fraud and bribery during the electoral process.?9

However, a consequence of the “Australian ballot” sys-

tem was that the government, specifically state govern-

ment, heavily regulated the electoral processes, including

which candidates, parties and political symbols and leg-

ends would have access to the ballot.*° This marked the

beginning of the two major parties’ dominance over the

States’ electoral processes.*! The parties regulate the elec-

toral process to exclude any threat to them by third-party

and independent candidates. In addition, in some

instances, the majority party in the state legislature

would use the legal system to create obstacles in the

26 FREDMAN, supra note 12, at 46.

27 Smith, supra note 17, at 172.

28 26 Am. Jur. 2p Elections §299 (1996).

29 Burson v. Freeman, 504 U.S. at 206.

30 Kevin Cofsky, Comment, Pruning the Political Thicket: The

Case for Strict Scrutiny of State, 145 U. Pa. L. Rev. 353, 359 (1996);

Smith, supra note 22, at 173.

31 Cofsky, supra note 30, at 360; Smith, supra note 12, at

173-74 (“By the mid-1920’s, state laws governing access to the

general election ballot were heavily weighted in favor of the

existing major parties.”).

9

electoral process for the other major party in order to

secure its own dominance.*?

The case before this Court poses a challenge to the

major parties’ control over states’ electoral process

because it is the citizens, not the legislators, who want to

provide ballot information. The citizens of Missouri want

to provide voters with truthful information regarding

candidates running for federal and state office. Citizens

want to hold the candidates who are seeking their votes

accountable for their promises and actions.

III. THE BALLOT INFORMATION PROVIDED

UNDER MISSOURI’S INFORMED-VOTER LAW

IS TRUE, AND MORE ACCURATE THAN

OTHER VOTING CUES

The major political parties, acting through state legis-

latures, have determined state electoral regulations; i.e.,

ballot access restrictions, as well as ballot content. In this

case, however, the citizens have exercised legislative

power via the initiative to control, in part, what informa-

tion is provided on the ballot to help them make an

informed choice. The two major parties’ control over the

voting process is jeopardized by the citizens’ desire to

32 Cofsky, supra note 20, at 355, 360; Smith, supra note 12, at

173 (“However, ‘within’ a very few years these laws underwent

a number of changes that are difficult to justify as furthering the

government’s mandate to conduct efficient and honest

elections.’ The partisan political interests of legislators writing

the ballot-access laws seem likely to have been the reason

behind these changes.”). See also Graves v. McElderry, 946

F.Supp. 1569 (W.D.Okla. 1996) (striking down on equal

protection grounds an Oklahoma statute that always printed, in

partisan elections, the Democratic Party candidates’ names in

the top position on the ballots). This Oklahoma statute was

enacted by a Democratically-controlled state legislature and

signed into law by Oklahoma’s then elected Governor, David

Walters, who was also a Democrat. Graves v. McElderry, 946

F.Supp. at 1573.

10

make an informed decision through the use of a voting

cue chosen by voters that gives them accurate informa-

tion about the candidates. This information supplements

traditional voting cues such as political party labels.

Although some states provide voters with a candi-

date’s political party affiliation as a voting cue on the

ballot and this Court recognized the role that party labels

play in the role by which voters inform themselves,*> such

information has lost its informative value for the voters.

Candidates’ “voiced positions” on a particular issue are

often as numerous as the groups of voters the candidates

face.* Also, political campaigns have become “candidate-

based” so that political party cues have become less rele-

vant.°5 One author explained that fewer voters “ ‘have

such affiliation and fewer of those with affiliation follow it.

The individual voter evaluates candidates on the basis of

information and impressions conveyed by the mass media,

and then votes on that basis.’ ”*

33 Tashjian v. Republican Party of Connecticut, 479 U.S. 208,

220 (1986).

4 Garrett, supra note 2, at 1547 (“Public pledges revealed

through ballot notations make the politician’s stance visible to

all voters, removing the politically attractive option of making

clear and inconsistent statements to private groups and

providing the public with ambiguous platitudes.”). See also

Donald E. Daybell, Note, Guarding the Treehouse: Are States

“Qualified” to Restrict Ballot Access in Federal Elections, 80 B. U. L.

Rev. 289 n.1. A Massachusetts independent voter explained that

she could not tell the major parties apart. A “Letter to the

Editor” was entitled, “Those Wavering Party Lines; Democrats

and GOP Would Rather Stand for Nothing than Risk Votes.”

35 Richard L. Hasen, Entrenching the Duopoly: Why the

Supreme Court Should not Allow the States to Protect the Democrats

and Republicans from Political Competition, 1997 Sur. Cr. Rev. 331,

360.

36 Id. (quoting Norman H. Nie, et at., THe CHANGING

AMERICAN VorTeR 346 (1979)).

11

Nevertheless, as this Court pointed out in its opinion

in Tashjian v. Republican Party of Connecticut, 479 U.S. 208,

220 (1986), party labels provide voters with a “shorthand

designation of the views of party candidates on matters

of public concern,” and they play a role in how voters

educate themselves before voting.*” Party labels are

undoubtedly a form of political advertising. Lower courts

have recognized the value of party labels. See Rosen v.

Brown, 970 F.2d 169 (6th Cir. 1992) (court struck down an

Ohio statute that provided partisan candidates with

labels but not petition process candidates). In fact, in

striking down the provision in Rosen the Sixth Circuit

relied on expert witness testimony presented by the

plaintiffs. In affidavits, two of plaintiffs’ experts

explained that party labels were the single most influen-

tial factor on political opinions and voting. One affidavit

explained that

Voting studies conducted since 1940 indicated

that party identification is the single most

important influence on political opinion and

voting. Almost two-thirds of the electorate has

some form of party loyalty, and the tendency to

vote according to party loyalty increases as the

voter moves down the ballot to lesser known

candidates seeking lesser known offices at the

state and local level. Without a designation next

to an Independent’s name on the ballot, the

voter has no clue as to what the candidate

stands for. Thus, the state affords a crucial

advantage to party candidates by allowing them

37 See also id. at 363 (“A party label provides a shorthand

way for voters, who have little incentive to invest time into

learning about the positions of candidates, to identify at least

some of the candidate’s beliefs. It provides the candidate with a

‘brand’ name.”); and Garrett, supra note 2, at 1534 (name and

party affiliation provide voters with the strongest cues).

12

to use a designation, while denying the Inde-

pendent the crucial opportunity to communicate

a designation of their candidacy.**

If parties are allowed to influence voters with the most

influential information, the citizens should be allowed to

include what they consider the most important informa-

tion regarding candidates. The informed voter law pro-

vides true information and information that the people

think is more important than party labels.

Certainly, printing the informed voter law’s ballot

information next to some candidates’ names will have

some influence on some voters. However, party labels,

symbols of elephants or donkeys, profiles of presidents

and other information printed next to or with a candi-

date’s name or in a column under which a candidate’s

name appears also influence voters, almost exclusively to

the advantage of the two major parties. Yet, neither this

Court, nor any court, has ever considered party labels

unconstitutional.

The major parties have controlled who obtains access

to the ballot and how and what information is printed

there. Indeed, as some writers have explained, parties

recognized the significance of the ballot as a means for

speaking to the voters. They were able to get states to

adopt the party-column ballot format; a format that fos-

ters straight-ticket voting.°? Party-columns hardly were

designed to foster informed and thoughtful voting.

Instead, they are meant to foster straight ticket voting, an

advantage to the two major political parties.

38 Rosen v. Brown, 970 F.2d 169, 172 (6th Cir. 1992).

“According to DeSario, Independent candidates are

handicapped by their inability to communicate a political

designation on the ballot. However, party candidates are

afforded a ‘voting cue’ on the ballot in the form of a party label

which research indicates is the most significant determinant of

voting behavior.” Id.

3° See Garrett, supra note 2, at 1535-36.

13

By enacting the informed voter law, Missouri citizens

provided themselves with specific, accurate, and truthful

information on the ballot. It is a laudable attempt by the

citizens of Missouri to require accountability from candi-

dates.

IV. STATES REGULARLY PROVIDE VOTERS WITH

INFORMATION AT THE “CLIMACTIC MOMENT

OF CHOICE”

Nearly all of the states provide voters with informa-

tion on the ballot including party labels, residence, office

sought, incumbency, and/or nicknames to be used with a

candidate’s name on the ballot. Missouri's informed voter

law is the most important of the multitude of regulations

governing the content of election ballots.

This Honorable Court recognized that states have an

interest in an informed and educated electorate. Anderson

v. Celebreeze, 460 U.S. 780, 796 (1983). Indeed, this Court

explained that, “In a republic where the people are sover-

eign, the ability of the citizenry to make informed choices

among candidates for office is essential, for the identities

of those who are elected will inevitably shape the course

that we follow as a nation.” Buckley v. Valeo, 424 U.S. 1,

14-15 (1976). The informed voter law is being attacked so

vigorously by politicians precisely because of its power to

“inevitably shape the course that we follow as a nation.”

Id.

Opponents contend that the informed voter law

allows states to isolate an issue for public debate and

then single out certain candidates who do not take partic-

ular actions on that issue. The Eighth Circuit Court of

Appeals explained that

The only ‘information’ the Missouri Amend-

ment adds to the ballot is derogatory labels for

candidates who do not do what it requires. Fur-

thermore, the labels are particularly harmful

because they appear on the ballot, an official

document produced by the state. Thus, the

14

labels appear to be an official denunciation of

certain candidates who are singled out by the

state for their failure to speak in favor of term

limits or take all action that §17 requires.

Gralike v. Cook, 191 F.3d 911, 918-19 (8th Cir. 1999).

Yet, states regularly single out candidates on their

election ballots by printing party labels, residency,

nickname, incumbency designations, and other “informa-

tion” with candidates’ names. Each of these regulations

determine that some issue is the most important one, and

are meant to harm or help a candidate.

Indeed, some labels, such as party affiliation, are

“outcome determinative” in many electoral districts. It is

the party label, not the candidates’ particular character or

positions, that determines scores of elections. Likewise,

candidates may lose votes because of ballot information

that is not printed by their names.* Yet, this Court has

only once struck down ballot information.*! This Honor-

able Court and lower courts have consistently recognized

the historical richness of our ballot laws and the ampli-

tude of information that states may give to or withhold

from candidates. The informed voter law has a direct

analogue - the ballot language used to foster support for

the Seventeenth Amendment - where such amplitude

was exercised.

A. The Seventeenth Amendment To The United

States Constitution Provides An Analogy For

Missouri’s Voter-Approved Informed Voter

Law.

Missouri’s informed voter law may appear unusual.

However, passage of the Seventeenth Amendment to the

United States Constitution was dependent upon a process

#0 See Clough v. Guzzi, 416 F.Supp. 1057, 1068 (D.Mass.

1976); Peterson v. Stafford, 490 N.W.2d 418, 423 (Minn. 1993), cert.

denied, 507 U.S. 1033 (1993).

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

15

of providing ballot information indistinguishable from

that being used in the informed voter law. The Seven-

teenth Amendment precedent was relied upon by the

drafters of the informed voter law because that amend-

ment, like term limits, posed a direct conflict between the

interests of the citizens and the interests of elected offi-

cials.

Article I, §3 of the United States Constitution pro-

vides that United States Senate is to be composed of two

Senators from each State “chosen by the Legislature

thereof” .4? Because of the role that Senators play in prop-

osing amendments to the Constitution, a law allowing the

election of Senators by the people seemed incapable of

passage — Senators faced a conflict of interest because

they were elected by legislatures. This direct conflict is

also present in the case of term limits.

Despite the direction of Article I of the Constitution,

Oregon, in 1904, through the initiative process, passed a

primary election law that allowed one of two statements

to be printed with a state legislative candidate’s nominat-

ing petitions. The statements informed the voters

whether the candidate promised to vote for the people’s

choice for United States Senator. Statement Number 1

read:

I further state to the people of Oregon, as well

as to the people of my legislative district, that

during my term of office, I shall always vote for

that candidate for United States Senator in Con-

gress who has received the highest number of

the people’s vote for that position at the general

election next preceding the election of a Senator

in Congress without regard to my individual

preferences.

42 U.S. Const. art. I, §3, cl. 1, states, “The Senate of the

United States shall be composed of two Senators from each

State, [chosen by the Legislature thereof,].” (The words in

brackets were changed by the adoption of the Seventeenth

Amendment which was ratified by the States on April 8, 1913).

16

Statement Number 2 read:

During my term of office I shall consider the

vote of the people for United States Senator in

Congress as nothing more than a recommenda-

tion which I shall be at liberty to wholly disre-

gard if the reason for doing so seems to be to be

sufficient.

To make the people’s choice for Senator more secure, the

voters of Oregon circulated pledges among themselves.

The voters pledged not to sign any nominating petition or

vote for the nomination of any candidate who did not

sign Statement Number 1.“ Finally, the “candidates” for

United State Senate were allowed to include on their

petitions a statement not to exceed one hundred words,

and on the ballot after the candidates’ name, a statement

not to exceed twelve words which would convey to the

voters the candidates’ “measures or principles he espe-

cially advocates.”

~ Besides Oregon, other states enacted primary election

laws allowing for information to be printed on the elec-

tion ballots with the candidates’ names. For example,

Idaho enacted a primary law in 1909 that allowed candi-

dates for state legislative office to sign a “declaration”

with their nomination papers which stated, in part, that if

elected to the state legislature, the candidate would

“always vote for the candidate for the United States

Senator who has received a majority for the first choice

votes upon my party ticket .. . 45 If the candidate made

such a declaration on the nomination papers, on the

official primary ballot near the candidate’s name would

43 Georce H. Haynes, 1 THE SENATE OF THE UNrTeD States: Its

History AND Practice 101-103 (Houghton, Mifflin Co. 1938)

(reissued Russell & Russell 1960).

#4 Id. at 101-102.

#5 Idaho Session Law, House Bill No. 16, §41 (1909).

17

appear, “Pledged to vote for party choice for U.S. Sena-

tor.”46 See Appendix at 1a.

Similarly, Nebraska’s primary election law allowed can-

didates for the state legislature to submit with their nomina-

tion application a Statement Number 1 or a Statement

Number 2 that was practically identical to Oregon’s primary

election law. On that part of the official primary election

ballot that contained the names of the candidates for legisla-

tive nomination would be printed immediately following

their names “Promises to vote for people’s choice for United

States Senator” or “Will not promise to vote for people’s

choice for United States Senator” depending on which state-

ment the candidate submitted with their nomination applica-

tion.47 See Appendix at 2a-3a.

The State of Washington also provided a statute gov-

erning the nomination of candidates for public office that

any candidate running for state senator or for the state

house could, if they wanted to, sign and file with their

declaration of candidacy or nomination papers a declara-

tion stating,

I hereby declare to the people of the State of

Washington, and particularly of my legislative

district, that during my term of office I will

always vote for the candidate for United States

Senator who has received the highest number of

votes upon my party ticket for the position at

the primary election next preceding the election

of United States Senator; and in such case there

shall be printed on the official primary ballot,

opposite or just below said candidate’s name the

following: Pledged to vote for party choice for

United States Senator.*

See Appendix at 4a.

46 Id.

47 1909 Laws of Nebraska, ch. 51, §2 at 253 (emphasis

added).

48 Washington Session Laws, 1907, ch. 209, §37, at 475-76.

18

As the above examples demonstrate, even though the

United States Constitution invested state legislatures

with the power to select Senators, citizens were able to

convey to their state legislators their choice for Senator in

two ways. First, they were allowed to vote for “candi-

dates” for the United States Senate. In addition, they

placed language on the ballot regarding what action a

legislator intended to take on the citizens’ non-binding

vote. Likewise, the informed voter law permits the citi-

zens of Missouri to have readily available while voting

information regarding what action their state and federal

legislative candidates intend to take or took with respect

to a specific amendment.

The Seventeenth Amendment was promoted in a vir-

tually identical manner as the informed voter law. The

statutory provisions mentioned above ultimately led to

the proposal and ratification of the Seventeenth Amend-

ment. The fact that the ballot information provided in

Missouri's law may be rare is not an argument for uncon-

stitutionality. The Seventeenth Amendment provides this

Honorable Court with direct historical precedent for

upholding the validity of the informed voter law.

B. “Binding” Instructions To Delegates At A State

Constitutional Convention Are Constitutional.

States have also used the ballot to instruct delegates

to state ratifying conventions. The Alabama Supreme

Court has ruled that even “binding” instructions to the

delegates to a state convention called to consider the

ratification or rejection of the Twenty-first Amendment to

the United States Constitution*? did not violate Article V

*# The Twenty-first Amendment to the United States

Constitution was ratified by state conventions on December 5,

1933. It repealed the Eighteenth Amendment which prohibited

the “manufacture, sale, or transportation of intoxicating liquors

within, the importation thereof into, or the exportation thereof

19

of the United States Constitution.© In In re Opinion of the

Justices, 148 So. 107 (Ala. 1933), the Alabama Supreme

Court advised the Governor that a ballot providing for

the election of delegates to a state convention called to

consider the adoption of the Twenty-first Amendment

would not violate Article V of the United States Constitu-

tion.

On these ballots, voters indicated whether they were

“for” or “against” repeal of the Eighteenth Amendment

and ratification of the Twenty-first Amendment. In re

Opinion of the Justices, 148 So. at 109. The candidates for

delegates to this convention were then required to sub-

scribe to an oath®! that if elected as a delegate to the

from the United States and all territory subject to the

jurisdiction thereof for beverage purposes .. . ” See U.S. Const.

amend. XVIII.

50 U.S. Const. art. V provides, in part, that

The Congress, whenever two thirds of both Houses

shall deem it necessary, shall propose Amendments to

this Constitution, or, on the Application of the

Legislatures of two thirds of the several States, shall

call a Convention for proposing Amendments, which,

in either Case, shall be valid to all Intents and

Purposes, as Part of this Constitution, when ratified

by the Legislatures of three fourths of the several

States, or by Conventions in three fourths thereof, as

the one or the other Mode of Ratification may be

proposed by the Congress; .. .

51 The oath that convention delegates were required to

subscribe to stated, in relevant part,

I, do solemnly pledge myself, in the event of my

election to a convention to be held in Montgomery for

the purpose of considering the ratification or rejection

of the proposed 21st amendment to the Constitution

of the United States, to abide by the result of the

referendum in the State on the question of the

ratification or rejection of the proposed 21st

Amendment to the Constitution of the United States;

20

ratifying convention, they would abide by the result of

the referendum vote taken of the people regarding the

ratification or rejection of the Twenty-first Amendment.

Id. at 108. The issue for the court to consider was “D{id]

the Constitution forbid a state law providing for an

instructed delegation to such convention, a delegation

pledged to voice the consent of the governed, ascertained

by the method recognized throughout our system,

namely, the ballot?” Id. at 110.

Conceding that “conventions” were representative

bodies, the Alabama Supreme Court explained,

[I]t is more truly representative when expres-

sing the known will of the people. Keeping in

view the fundamental doctrine of a government

of the people, by the people, and for the people,

we are unable to see in the Federal Constitution

any purpose to prohibit a direct and binding

instruction to the members of the convention

voicing the consent of the governed . . . The

direct pledge given to abide instructions can

scarcely be more sacred than the solemnly

implied pledge of electors to voice the choice of

the people of their respective states for Presi-

dent and Vice President . . . The prescribed

contents of the ballot merely inform the voter

more fully as to the meaning and effect of his

vote.

and should a majority of votes cast in said election be

for ratification, then I pledge myself to vote for the

ratification of the proposed 21st amendment in the

convention, but should a majority of the votes cast in

said election be for rejection of the proposed 21st

amendment, then I pledge myself to vote for the

rejection of the proposed 21st amendment to the

United States Constitution .. .

21

In re Opinion of the Justices, 148 So. at 111. Alabama’s

position is consistent with that of at least eleven states.°?

The Alabama experience and numerous state laws

are further evidence of citizens’ right to inform and

instruct. In our deliberative democracy, elected officials

ultimately may act as they deem best. However, the citi-

zenry have the right to hold them accountable for their

actions.

C. States Have The Power To Control The Content

Of Their Election Ballots.

Article I, §4 of the Constitution invests states with

the power to regulate the “manner” of elections. States

have exercised that power by enacting a multitude of

regulations that frequently identify criteria or standards

for choosing between candidates.

The states’ power to control the content of their

election ballots is often exercised in favor of the two

major political parties. Nearly all of the states provide for

52 Eleven states’ nomination petitions for delegates to

ratifying conventions for constitutional amendments to the

Federal Constitution require candidates to include a statement

in their petition regarding whether they oppose or favor

ratification of the proposed amendment. In Arizona,

nomination petitions for delegates to such conventions must

have a statement regarding whether the candidate favors or

opposes rotification of the amendment. A delegate who is

elected based on a platform or nomination of petition statement

favoring or opposing ratification must vote in accordance with

that platform or statement at the convention; otherwise, the

delegate is guilty of a misdemeanor, and the delegate’s vote will

not be considered. See AZ. Rev. St. Ann. §§16-703(C); 16-704(A);

and 16-705(C). For states with similar provisions , see Del. Code

Ann., Title 15, §7706; Fla. St. Ann. §107.04(1); Idaho Code Ann.

§34-2205; Ind. Code §3-10-5-7 and §3-10-5-9; Mont. Code Ann.

§13-26-103; Ohio Rev. Code Ann. §3523.04; S.D. Codified Laws

§2-15-4; Utah Code Ann. §20A-15-103; Vt. St. Ann., Title 17,

§1814; and Rev. Code Wash. Ann. §29.74.060.

22

party labels and some states actually provide preferences

for the major party candidates. For example, states give

the major party candidates preferential ballot position by

printing the names of their candidates in the first two

columns of the ballot followed by the names of indepen-

dent or third-party candidates.%3

53 See, e.g., ALA. St. §17-8-5 (“In the case of nomination by

independent bodies, the ballot shall be so arranged that at the

right of the last column for party nomination the several tickets

of the names of the independent candidates shall be printed in

one or more columns according to the space required, . . .”); AZ.

Rev. St. Ann. §16-502(E) (“The lists of the candidates of the

several parties shall be arranged with the names of the parties in

descending order according to the votes cast for governor for

that county in the most recent general election for the office of

governor, . . . In the case of political parties which did not have

candidates on the ballot in the last general election, such parties

shall be listed in alphabetical order to the right of the parties

which did have candidates on the ballot in the last general

election . . . ”); COLO. Rev. St. Ann. §1-5-404(1)(a)(b)(c) (“The

names of the candidates of the two major political parties shall

be placed on the general election ballot in an order established

by lot and shall comprise the first group; . . . ”); DEL. Code Ann.

Rev. §4502(a) (“The device named and chosen and the lists of

candidates of the Democratic Party shall be placed in the first

column on the left-hand side of the ballot, of the Republican

Party in the second column, and of any other party, and the

space for the voter to write in the name of any candidate of his

or her choice for any office, in such order as the department of

elections shall decide. The names of unaffiliated candidates

shall appear in alphabetical order, under the heading

‘Unaffiliated Candidates,’ after the listing of the various

political parties.”); FLA. St. Ann. §101.151(5) (“Minor political

party candidates and candidates with no party affiliation shall

have their names appear on the general election ballot following

the names of recognized political parties, . . . ”); Code of GA.

Ann. §21-2-285(c) (“In a general election, the names of

candidates who are nominees of a political party shall be placed

under the name of their party. The columns of political parties

shall be printed on the ballot, beginning on the left side thereof,

23

All candidates who are members of one of the major

political parties are listed with that party label. Yet, this

Honorable Court has recognized that the labels “Demo-

crat” or “Republican” often tell voters little. See Buckley v.

Valeo, 424 U.S. 1, 70 (1976) (per curiam). By printing

certain information on the ballot, states tell voters that

such information is more important than other possible

information. A variety and breadth of such information is

provided throughout the fifty states.

and shall be arranged from left to right in the descending order

of the totals of votes cast for candidates of the political parties

for Governor at the last gubernatorial election. The columns of

parties having no candidate for Governor on the ballot at the

last gubernatorial election shall be arranged alphabetically

according to the party name to the right of the columns of the

parties so represented. The columns of political bodies shall be

arranged alphabetically according to the body name to the right

of the party columns. The names of all independent candidates

shall be printed on the ballot in a column or columns under the

heading ‘Independent,’ which shall be placed to the right of the

political body columns.”); IND. St. Ann. §3-11-2-6(a)(b)(c); MD.

Code of 1957, Art. 33, §9-210(j)(2)(i)(ii); N.H. Rev. St. Ann.

§656:5(II)( . . . , the names of the candidates of the party which

received the largest number of votes at the last preceding state

general election shall be listed first.”); OKLA. St. Ann. §6-106

(“For each ballot for which there are partisan candidates, the

candidates of the recognized parties shall be printed in the first

position in lot order followed by candidates of unrecognized

parties in lot order followed by independent candidates in lot

order.”); General Laws of R.I. Ann. §17-19-9.1; TENN. Code

Ann. §2-5-206 (independent candidates’ names are listed

immediately after the names of the candidates of the political

parties); Tex. St. and Codes Ann. §52.065(d) (independent

candidates are listed in a column following the political party

columns); W.VA. Code of 1966 §3-6-2(c)(3); WIS. St. Ann.

§5.64(1)(b).

24

1. Political Party Label, Emblems And Other

Information.

Most States have enacted regulations that allow party

affiliation or lack thereof to be printed either with the

candidates’ names or the candidates’ names are listed

under the appropriate party label column on the ballot.™

In some states the parties are also permitted to print a

party emblem as an additional means of associating the

party with its candidates.°> Furthermore, some states

54 See Code of ALA., §§17-8-4, 17-8-5; Alaska St. Ann.

§15.15.030(5); AZ. Rev. St. Ann. §16.502(E); Ark. Code of 1987

Ann. §7-5-208(f)(5); West’s Ann. Calif. Code, Elections,

§13105(a)(c); Colo. Rev. St. Ann. 1-5-403(4); Conn. General St.

Ann. §9-279; Del. Code Ann. Rev. 1974, Title 15, §§4502(a) and

5005; Fla. St. Ann. §101.151(4)(5); Official Code of Ga. Ann.

§21-2-285(c); Hawaii Rev. St. §11-112(a); Idaho Code Ann.

§§34-904 and 34-906; West’s Smith-Hurd Ill. Comp. St. Ann. Title

10, §5/16-3; Burn’s Indiana St. Ann. §§3-8-6-5; 3-11-2-5; lowa

Code Ann. §49.31(1); Kansas St. Ann. §25-613; Ky. Rev. St. Ann.

§118.325(2)(4); La. St. Ann. §18:551(D); Maine Rev. St. Ann., Title

21-A, §602(2)(A)(B); Ann. Code of Maryland of 1957, Art. 33,

§9-210(g); Mich. Comp. Laws Ann. §168.696(1); Minn. St. Ann.

§§204B.36(2) and 202A.11; West’s Ann. Miss. Code, §23-15-359(2);

Vernon’s Ann. Missouri St. §115.237(2); Mont. Code Ann.

§§13-10-209(1)(a), 13-10-303, and 13-10-203; Nev. Rev. St. Ann.

§293.267(3)(a); N.H. Rev. St. Ann. §§656:5, 656:9; N.J. St. Ann.

§19:13-4; N.M. St. §1-7-6; McKinney’s Consolidated Laws of N.Y.

§§7-104(4)(a), 7-106; Gen. St. of N.C. §163-140; N.D. Century

Code Ann. §16.1-06-05(3); Baldwin’s Ohio Rev. Code Ann.

§3505.03(B); Okla. St. Ann. §6-106; Ore. Rev. St. §254.135(4)(a);

Purdon’s Penn. St. Ann., Title 25, §2963(b); Gen. Laws of R.I.

Ann., §§17-15-8 and 17-19-9.1; S.D. Codified Laws Ann. §12-16-2;

Tenn. Code Ann. §§2-5-206(b) and 2-5-207(d)(1); Vernon’s Texas

St. and Codes Ann., Title 5, §52.065 and §52.067; Utah Code Ann.

§20A-6-301; Vt. St. Ann., Title 17, §2472(b); Const. of Va., art. II,

§3; Rev. Code of Wash. Ann. §29.30.020; W.Va. Code of 1966

§3-6-2; Wis. St. Ann. §5.64(b); and Wyo. St. Ann. §22-6-120(a)(vii).

55 See Code of ALA. §§17-8-6 and 17-8-8; DEL. Code Ann.

Rev., Title 15, §§3302; 4502(a), and 5005; Burn’s IND. St. Ann.

25

allow candidates who are nominated by more than one

party to have the names of all of the parties that nomi-

nated the candidate to be printed with the candidates’

names. This principle is known as “fusion.”°* Among the

states that allow “fusion” candidacies are California®’

and New York.5® Other states allow short statements on

the ballot. See N.J. St. Ann. §19:23-17.59

§§3-8-7-11, 3-8-6-5(b), 3-11-2-5; and 3-11-2-9; KY. Rev. St. Ann.

§118.325(2)(4); N.H. Rev. St. Ann. §656:11; N.M. St. §1-7-6;

McKinney’s Consolidated Laws of N.Y. §§2-124, 7-104, and

7-106; OKLA. St. Ann. §6-106; and Utah Code Ann.

§20A-6-301(1)(d).

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

354 n.1 (1997).

57 See West's Ann. Calif. Codes, Elections, §13105(c).

58 See McKinney’s Consolidated Laws of N.Y. §§6-120,

6-146(1), and 7-104(5).

59 There is a similar provision for candidates running in

municipal elections. See N.J. St. Ann. §40:45-10. Similarly, the

State of Wisconsin provides that independent candidates shall

have printed under their names on the ballot, in five words or

less, the party or principle of candidate, if any. See Wis. St.

§5.64(1)(e). In Ihlenfeldt v. State Election Bd., 425 F.Supp. 1361

(D.Wis. 1977), while upholding this statutory provision, the

district court pointed out that Wisconsin had the right to

“organize its ballot.” Id. at 1364 (citing United States v. Classic,

313 U.S. 299 (1941)). As part of that right, the court recognized

that “ ... To insure that the candidates listed under the

Independent heading are able to project a political identity to

the electorate, Wisconsin permits them to identify themselves in

five words or less . . . it insures his access to the electorate in as

meaningful a way as possible.” Id. at 1364. For other states with

similar provisions, see Ariz. Rev. St. Ann. §16-341(D)

(designation in three words or less); Colo. Rev. St. Ann.

§1-4-601(2), §1-5-403(4) (political party or organization name

may not exceed three words and they may not promote

candidate or equal a campaign promise); Minn. St. Ann.

§204B.36(2) and §204B.07(1)(c) (political party or principle not

expressed in more than three words with candidates’ names on

26

2. Incumbency Designations.

In addition to political party designations and emblems,

some states regulate their election ballots in such a manner

that some candidates are permitted to distinguish themselves

with incumbency designations. In such a situation, experi-

ence is a classification the state has singled out as being more

significant than other distinctions such as what action or

actions candidates took or will take on matters of great

public importance. In addition, incumbency designations

prohibit someone with even greater experience from provid-

ing evidence of such on the ballot. Incumbency protection is

not uncommon.

In Minnesota, candidates for judicial office who are

incumbents running for the same office may be desig-

nated on the ballot as the “incumbent.” See Minn. St. Ann.

§204B.36(5).°! The State Supreme Court held in Peterson v.

the general election ballot); and General Laws of R.I. Ann. 1956,

§17-19-9.1 (independent candidates can choose, in no more than

three words, a political principle, movement or organization to

identify himself with on the ballot).

© See Official Code of Ga. Ann. §21-2-284(c);

§21-2-284.1(a)(b)(3); and §21-2-285(c) (1998 ed.). Furthermore,

for candidates whose nomination to the same office in a

precinct, ward or district contains any portion of the territory

which s/he was elected to represent in the last preceding

municipal or state election is considered the incumbent. Next to

their names is printed, at the candidate’s request, no more than

eight words explaining the public offices that the candidate is

currently holding or has held. See Mass. General Laws Ann., Ch.

53, §34. Candidates for state or city office who are also elected

incumbents shall have printed with their names on

Massachusetts’ election ballots the words, “Candidate for

Reelection.” See Mass. General Laws Ann., Ch. 54, §41.

61 See also Mich. Const. art. VI, §24 (incumbent Justices and

judges serving on that state’s various courts and who are

elected on a non-partisan basis shall have printed under their

name the designation of that office if they are a candidate for the

27

Stafford, 490 N.W.2d 418 (Minn. 1992), cert. denied, 507

U.S. 1033 (1993) by relying on an earlier decision in

Gustafson v. Holm, 44 N.W.2d 443 (Minn. 1950), that,

In Gustafson, we stressed the fact that the pur-

pose of these two separate identifications is

information, not to give the incumbent an

advantage. The fact that this designation in a

particular election may provide the incumbent

with an advantage over other candidates does

not necessarily invalidate the statute . . . Use of

the word ‘incumbent’ following the candidate’s

name, simply informs the voter of the person

who presently holds the position . . . In order to

enable the electorate to know who candidates

are, it is not always possible to treat all candi-

dates with absolute equality.

Peterson v. Stafford, 490 N.W.2d at 423-24 (quoting

Gustafson v. Holm, 44 N.W.2d 443, 447 (Minn. 1950)).

California also provides incumbency designations.

See West's Ann. Calif. Codes, Elections, §13106. California

provides that under the name of each candidate, the

candidate may choose one of the following designations:

words describing the elective office the candidate holds

at the time of filing nominating papers; the word “incum-

bent” if the candidate is running for the same office held

at the time of filing nominating papers; in three words or

less describing the current principal professions, voca-

tions, or occupations the candidate practices; or “appoin-

ted incumbent” may be printed by a candidate’s name if

the candidate is holding an office, other than a judicial

office, because of an appointment to that office and the

same office); and Ore. Rev. St. §254.135(4)(c) (“The word

‘incumbent’ shall follow the name of each candidate for the

Supreme Court, Court of Appeals, Oregon Tax Court or circuit

court who is designated the incumbent by the Secretary of State

under O.R.S. 254.085.”).

28

person is a candidate for election to that same office. See

West’s Ann. Calif. Codes, Elections, §13107(a)(1)(2)(3)(4)

(2000 Cum. Pocket Part).

Incumbency labeling is particularly onerous on other

candidates because it recognizes only one candidate as

particularly worthy of state approval. Yet, such labeling

has never been deemed unconstitutional.

3. Residency Or Nicknames

In addition to party labels and emblems, and incum-

bency designations, states print other information on the

ballot. Two examples of this other information are candi-

dates’ residences or nicknames

In Massachusetts, for example, the address of each

candidate for an elective office, for a ward or town com-

mittee, or for state committee must be printed next to

their names on the ballot. See Mass. General Laws Ann.

Ch. 53, §34. See also Mass. General Laws Ann., Ch. 54,

§41. Alaska allows a nickname or familiar form of a

candidate’s proper name may be used as part of the

candidate’s name on the ballot. See Alaska St.

§15.15.030(4). In Arkansas, a candidate filing for any elec-

tive office may use up to three given names, one of which

may be a nickname or any other word used to identify

the candidate with the voters on the ballots for primary

elections. See Arkansas Code of 1987 Ann.

§7-7-305(c)(1)(A). However, a candidate may not use a

nickname that includes a professional or honorary title.

See Arkansas Code of 1987 Ann. §7-7-305(c)(1)(B). Candi-

dates may add as a prefix to their name the title or an

abbreviation of an elective office the candidate currently

holds. See Arkansas Code of 1987 Ann. §7-7-305(c)(1)(A).

4. Summation.

The foregoing examples provide a short survey of the

vast array of the content of election ballots. This multi-

tude of regulations provides state-sanctioned distinctions

29

among candidates. The informed voter law provides the

most important ballot information to voters since the

provision of information used for adoption of the Seven-

teenth Amendment.

Opponents of the informed voter law are concerned

that candidates’ actions regarding a federal term limits

amendment may prove unpopular. But that is exactly

why the citizens of Missouri passed that law. The self-

interest of candidates precludes them from acting in

accordance with the will of people. Missouri’s law holds

candidates a~ ountable to the people. As this Honorable

Court has stated, legislators have an obligation to take a

position on a matter of public importance in order that

the people whom they represent “can be fully informed

by them, and be better able to assess their qualifications

for office.” Bond v. Floyd, 385 U.S. 116, 136-37 (1966).

D. The Ballot Has Been Used To Provide Voters

With Information Regarding A Candidate’s

Position On A Constitutional Amendment.

An informed voter law cannot be distinguished from

other ballot information because it provides information

abouc a constitutional amendment. Candidates’ positions

on constitutional amendments have been a vital element

in selecting candidates for public office. Throughout this

country’s history, political parties have placed support of

constitutional amendments in their platforms. Party

labels therefore are shorthand for amendments supported

by candidates.

For example, the Socialist Party Platform of 1960

supported an amendment that would guarantee the right

of ready ballot access to minority political parties in all

fifty states. See Nationat Party Ptatrorms, 1840-1972 at

630 (Univ. of Ill. Press, 5th ed. 1973). The Democratic

Party Platform of 1964 advocated an amendment that

gave the District of Columbia voting representation in

Congress. Id. at 648. Many other parties’ platforms have

called for constitutional amendments. Yet, party labels

30

are not precluded from ballots. By including a party label

on the ballot, voters have been given shorthand informa-

tion regarding a candidate’s commitment to supporting a

specific amendment. In short, party labels - insofar as

they are shorthand for party platforms - provide voters

with information regarding a candidate’s support of var-

ious constitutional amendments.

CONCLUSION

Missouri's informed voter law should be upheld not

only because it provides ballot information similar to that

used by the political parties, but because it is far more

important than any other information placed on the bal-

lot. Based on the foregoing brief, Amicus Curiae Missouri

Term Limits respectfully requests that this Honorable

Court reverse the judgment below.

Respectfully submitted,

STEPHEN J. SAFRANEK*

Associate Professor of Law

Ave Maria School of Law

3475 Plymouth Rd.

Ann Arbor, MI 48105-2550

(734) 827-8096

* Legal Counsel of Record

for Amicus Curiae Missouri

Term Limits

la

IDAHO SESSION LAWS - 1909

Sec.41. Any candidate for nomination for the office of

State Senator or member of the House of Representatives

may, if he chooses to do so, sign and file with his declara-

tion of candidacy or nomination paper a declaration as

follows:

“I hereby declare that during my term of office if elected,

I will always vote for the candidate for United States

Senator who has received a majority of the first choice

voies upon my party ticket, and in the event no one has

received a majority of the first choice votes, then I will

vote for the candidate of my party who has received the

largest number of both first and second choice votes for

that position at the primary held next preceding the

election of a United States Senator.”

And in such case there shall be printed on the official

primary ballot opposite or just below said candidate’s

name the following words: “Pledged to vote for party

choice for U.S. Senator.”

NEBRASKA SESSION LAWS - 1901

Section I. (Nomination papers, legislative candi-

dates.) Any elector seeking nomination as a candidate for

the legislature at the primaries where such candidates are

chosen may include in the application to have his name

placed upon the official primary ballot provided for in

Section 5866 of Cobbey’s Annotated Statutes for 1907 any

2a

one of the two following statements, but if he does not do

so the officer with whom the application is filed shall not,

on that account, refuse to file his petition or place his

name on the official ballot:

STATEMENT NO. 1.

I hereby state to the people of Nebraska as well as to

the people of my legislative district, that during my term

of office I will always vote for that candidate for United

States senator in Congress who has received the highest

number of the people’s votes for that position at the

general election next preceding the election of a senator

in Congress, without regard to my individual preference.

ssnniiaticieddatipinidapiita tacit Raniah

(Signature of the candidate for nomination.)

If the candidate shall be unwilling to sign the above

statement, then he may sign the following statement as a

part of his petition:

STATEMENT NO. 2.

During my term of office I shall consider the vote of

the people for United States senator in Congress as noth-

ing more than a recommendation, which I shall be at

liberty to wholly disregard, if the reason for doing so

seems to me to be sufficient.

(Signature of the candidate for nomination.)

Section 2. (Ballot. Legislative candidate ) That part of

the official primary election ballot which contains the

names of candidates for legislative nominations shall

have printed thereon, immediately following the names

>

Os ae

3a

of those candidates whose applications include Statement

No. 1, the following words, “promises to vote for peo-

ple’s choice for United States senator” and immediately

following the names of those candidates whose applica-

tions contain Statement No. 2 the following words, “will

not promise to vote for people’s choice for United States

senator.” That form of that part of the ballot containing

the names of those who are candidates for legislative

nomination shall be substantially as follows:

For State Senator from th district. Vote

for , Richard Smith, promises to vote for peo-

ple’s choice for U.S. senator.

James Brown, will not promise to vote for people’s choice

for U.S. Senator

William Jones.

For Representatives from th district. Vote for

Wilbur Abie, promises to vote for people’s choice for U.S.

Senator.

William A. Adams.

Frank Alger, will not promise to vote for people’s choice

for U.S. senator.

Elton Ankeny.

Approved March 4th, 1909.

4a

WASHINGTON SESSION LAWS - 1907

Sec. 37. Any candidate under this act for office of

State Senator, or member of the House of Representatives,

if he desires to do so, may sign and file with his declara-

tion of candidacy or nomination paper, a declaration as

follows:

I hereby declare to the people of the State of Wash-

ington, and particularly of my legislative district, that

during my term of office I will always vote for the candi-

date for United States Senator who has received the high-

est number of votes upon my party ticket for the position

at the primary election next preceding the election of

United States Senator; and in such case there shall be

printed on the official primary ballot, Opposite or just

below said candidate’s name, the following: “Pledged to

vote for party choice for United States Senator.”