Amicus Curiae Brief — Cook v. Gralike

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IN THE

Supreme Court of the United States

REBECCA MCDOWELL COOK,

Petitioner.

Vv.

DONALD J. GRALIKE AND MIKE HARMAN,

Respondents

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF OF AMICI CURIAE LEAGUE OF WOMEN

VOTERS OF THE UNITED STATES AND

LEAGUE OF WOMEN VOTERS OF MISSOURI

IN SUPPORT OF RESPONDENTS

LOUIS R. COHEN

Counsel of Record

JONATHAN J. FRANKEL

ANNE HARKAVY

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000

Counsel for Amici Curiae

League of Women Voters of the United States and

League of Women Voters of Missouri

Fituk

AUG 11 2000

we

No. 99-929 \ OFFICE Ob SHR

ie BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ..................cccccccccssssessereeceeseess lil

INTEREST OF AMICI CURIAE ..................0ccccccceeeeeeeeeeeees l

SUMMARY OF ARGUMENT 0.000.000... o.oo ooccccceecccccceeeeeees 2

GIT scaineviviststeninsitenneiessnmieaimiadaaiaaaia laa 4

1. THE MISSOURI PROVISION IS AN

UNCONSTITUTIONAL USE OF STATE

POWER TO AFFECT THE OUTCOMES

OF ELECTIONS TO CONGRESS. ..................... 4

A. A State’s Authority To Prescribe the

“Times, Places and Manner” of Fed-

eral Elections May Not Be Used To

Favor Some Candidates or Policy Po-

GEREIIID GOVE TIT, sev ccevscccccecorccncesesessessencess 5

B. The Missouri Provision Is an Attempt

To Use the State-Controlled Mechan-

ics of Federal Elections in a Nonneu-

tral Manner To Bring About the Elec-

tion of Members of Congress Who Fa-

vor a Specific State Policy. ................00..00... 9

Il. HISTORY DOES NOT SUPPORT THE

CONSTITUTIONALITY OF THE MIS-

SOURI PROVISION. .0000..0........cccccccceceeteeeeteees 16

A. Petitioner’s and Her Amici’s Historical

Examples Do Not Speak to the Consti-

tutionality of the Missouri Provision

Because None Involved Placing a

Message Setting Forth State Policy on

a Federal Election Ballot. ..................0.0...0.... 16

TABLE OF CONTENTS — Continued

Page

B. Petitioner and Her Amici Ignore the

Consistent Opposition to Instructing

Representatives and Misconstrue the

Framers’ Rejection of a Constitutional

A 22

a sensoasetsinaseeovececonn 30

iil

TABLE OF AUTHORITIES

CASES

Page

Advisory Opinion to the Attorney General re Term

Limits Pledge, 718 So. 2d 798 (Fla. 1998) ................. 11

AFL-CIO v. March Fong Eu, 686 P.2d 609 (Cal.

EE RS ER SER ora son eon he ee 17

Anderson v. Celebrezze, 460 U.S. 780 (1983) ............... 8, 10

Anderson v. Martin, 375 U.S. 399 (1964) 0000000000000... 9,14

Barker v. Hazeltine, 3 F. Supp. 2d 1088 (D.S.D.

a lc 11

Burdick v. Takushi, 504 U.S. 428 (1992) .00...0....00004.. 7, 10

Burson v. Freeman, 504 U.S. 191 (1992) 2.000.000.0000... 7,14

California Democratic Party v. Jones, 120 §. Ct.

TT sieiiadanahielinichideannnideeaaatnamnai eel 5,7

City of Eastlake v. Forest City Enterprises, 426 U.S.

I sicnaceniieaiitsicasialiciti itd iiae inltieasiaidanieeeainiad 5, 15

Clements v. Fashing, 457 U.S. 957 (1982) ..............00.00. 8

Donovan v. Priest, 931 S.\W.2d 119 (Ark. 1996) ............... 10

FERC v. Mississippi, 456 U.S. 742 (1982) 0.0........60000 19

eg BB Er 6

Georges v. Carney, 691 F.2d 297 (7th Cir. 1982) .............. 14

Gralike v. Cook, 191 F.3d 911 (8th Cir. 1999) 2000. 11

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

SA TTT ttt isicritre ieeesa ade daeeaimiadinenaiiidiaianesinbantians 14

Hunter v. Erickson, 393 U.S. 385 (1969) .......00.00000....... 5,15

In re Opinion of the Justices, 148 So. 107 (Ala.

I iach daiinha tambien alan 20

League of Women Voters v. Gwadosky, 966 F. Supp.

I realli alii 2, 11

Lucas v. Colorado General Assembly, 377 U.S. 713

EE ene eae een ne 5, 15

Miller v. Moore, 169 F.3d 1119 (8th Cir. 1999) 0000000000... 11

Powell v. McCormack, 395 U.S. 486 (1969) 0.000.000.0000... 8

Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992) .00000000000000... 14

Smiley v. Holm, 285 U.S. 355 (1932) .............ccccccccceeceeeeeees 6

IV

TABLE OF AUTHORITIES — Continued

Page

State ex rel. Harper v. Waltermire, 691 P.2d 826

I STII cclesticiisiisiidtenailites ieee gieiebalatacenanaia at 17

State ex rel. McCue v. Blaisdell, 118 N.W. 141

Re EE ae ee 21

Tashjian v. Republican Party, 479 U.S. 208 (1986) ...... 8,15

Thorsted v. Gregoire, 841 F. Supp. 1068 (W.D.

Wash. 1994), aff'd, 75 F.3d 454 (9th Cir. 1996) .......... 2

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

ED ceniciiisndsinniiahiiaderttaiiadsliah tibia haart etal 14

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779

SITET secinigemnesietanenntiatabtatininnniinndseiediinnatieatbaiiatittitasias passim

Ward v. Rock Against Racism, 49\ U.S. 781 (1989) ........... 6

CONSTITUTIONAL PROVISIONS

ee RE Be. © eset 1,2, 4,5

STATUTORY PROVISIONS

Idaho Session Law, House Bill No. 16, § 41 (1909) .......... 21

Mo. Const. art. VIII, §§ 15-22 22000000... occccccceceeeee, 2, 10, 12

SN is Ss SO enna als 14

MI SII pica iicinitesccintctetciiaatesiciliianeiliediiass 21

BOOKS, ARTICLES, AND TREATISES

Akhil Reed Amar, Philadelphia Revisited: Amend-

ing the Constitution Outside Article V, 55 U.

Chi. L. Rev. 1043 (1988) .200.o... eee 24, 26, 28

Vikram David Amar, The People Made Me Do It:

Can the People of the States Instruct and Co-

erce Their State Legislatures in the Article V

Constitutional Amendment Process?, 41 Wm &

ris SI CN ial 26

Richard B. Bernstein with Jerome Agel, Amending

America: If We Love the Constitution So Much,

Why Do We Keep Trying to Change It? (1993) .......... 28

Vv

TABLE OF AUTHORITIES — Continued

Page

The Complete Bill of Rights: The Drafts, Debates,

Sources, and Origins (Neil H. Cogan ed., 1997)... 22, 27

Thomas E. Cronin, Direct Democracy: The Politics

of Initiative, Referendum, and Recall (1989) .............. 26

Debates on the Federal Constitution (Jonathan E|I-

liot ed., 2d ed., 1836) (1941) 00.0.0... 8, 19

George H. Haynes, The Senate of the United States:

Its History and Practice (1938) ..................... 20. 21, 29

David Hess, Gingrich Pledges To Fight Term Limits

of Less Than 12 Years, Phila. Inquirer, Jan. 12,

EER EASE ara eee ee 12

Robert Luce, Legislative Principles: The History

and Theory of Lawmaking by Representative

RR Ne 23, 26, 29, 30

Matthew Vita, Political Appeal of Term Limits Ap-

pears to Wane, Wash. Post, July 17, 2000, at

| UAERERBEERER RUS eer Ane Oe OI ao 12

Noah Webster, Government. The Practice of In-

structing Representatives Absurd and Contrary

to the True Principles of Liberty, | American

Magazine 206 (1787-88) 200.0... cocccccccteeeteeeees 24, 25

Gordon S. Wood, The Creation of the American Re-

public 1776-1787 (1969) 20.0.....eccccecceeeee 18, 22, 24, 25

OTHER AUTHORITIES

Annals of Congress (Joseph E. Gale ed., 1789) .......... passim

I ia tnimennsmbnlillt 30

Articles of Confederation, art. Vo .................0...ccccccceeceees 19

Ca aerate’ 23

ET Nene ene 23

Official Manual, State of Missouri 1997-1998 (Jim

ETT eae aR SES 11

BRIEF OF AMICI CURIAE

Amici respectfully submit this brief to make two points.

First, the power of the States to prescribe the “Times, Places

and Manner of holding Elections for Senators and Represen-

tatives,” U.S. Const. art. I, § 4, cl. 1, does not include the

power to disfavor a particular candidate for federal office by

placing a notation on the ballot criticizing the candidate for

failure to endorse or obey the State’s substantive views on a

federal issue. Second, the history of constituent instructions

in this country provides no support for the constitutionality of

such substantive intrusion by States into federal elections.

INTEREST OF AMICI CURIAE'

The League of Women Voters of the United States is a

nonpartisan, community-based political organization that en-

courages the informed and active participation of citizens in

government and influences public policy through education

and advocacy. The League is organized in more than one

thousand communities and in every state, with more than

125,000 members and supporters nationwide. One of its in-

dependent state Leagues is amicus curiae League of Women

Voters of Missouri. The League of Women Voters of the

United States and the League of Women Voters of Missouri

(jointly, the “League”) were organized in 1919 as an out-

growth of the 72-year struggle to win voting rights for

women in the United States.

One of the League’s primary goals is to promote an open

governmental system that is representative, accountable, and

responsive; that protects individual liberties established by

the Constitution; and that assures opportunities for citizen

participation in government decisionmaking. To further this

goal, the League has participated as a party or amicus in this

' This brief was authored in its entirety by undersigned counsel for

amici curiae. No person or entity, other than the named amici curiae and

their counsel and members, made any monetary contribution to the prepa-

ration or submission of this brief. Letters consenting to the filing of this

brief are on file with the Clerk of this Court.

2

Court and other courts, addressing campaign finance, term

limits, and other issues relating to the electoral process.

The League has a strong interest in this case. The

League opposes term limits because they violate the most

fundamental of all rights in a democracy — the right of citi-

zens to vote for the governmental representatives of their

choice. The Missouri constitutional provision at issue here,

however, not only infringes on this right, but also is at war

with the core values that the League has protected and pro-

moted for the last eighty years. If upheld, the law would cor-

rupt the electoral process itself. It would allow the State to

use its power under the Elections Clause to manipulate the

machinery of congressional elections to inject its own views

on substantive federal issues into the electoral process at the

most critical moment and in the most crucial space — on the

ballot.

Amici submit this brief to explain the threat that Mis-

souri’s unconstitutional action presents to the integrity of the

federal electoral process.’

SUMMARY OF ARGUMENT

The Constitution assigns responsibility for conducting

the elections of United States Senators and Representatives to

the States, and it directs them to prescribe the “Times, Places

and Manner” of these elections through neutral, even-handed

regulations. U.S. Const. art. I, § 4, cl. 1. Invoking this au-

thority, the State of Missouri has adopted a ballot-branding

mechanism, Mo. Const. art. VIII, §§ 15-22 (hereinafter,

“Missouri Provision” or “Provision”), that is anything but

neutral. Under the Missouri Provision, a partisan official of

2 One of the state Leagues has successfully challenged a nearly iden-

tical law in another state. See League of Women Voters v. Gwadosky, 966

F. Supp. 52 (D. Me. 1997). Moreover, the Arkansas League was a win-

ning party in the leading term limits case, U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779 (1995); the League of Women Voters of Wash-

ington was a victorious party in Thorsted v. Gregoire, 841 F. Supp. 1068

(W.D. Wash. 1994), aff'd, 75 F.3d 454 (9th Cir. 1996), one of the prede-

cessors to Thornton, and the LWVUS filed an amicus brief in Thornton.

3

the State audits candidates for United States Congress for

their obedience (or pledged obedience) to the State’s official

policy on federal term limits, then labels candidates who

have not supported the State’s policy on the ballot as having

“DISREGARDED VOTERS’ INSTRUCTIONS ON TERM

LIMITS” or “DECLINED TO PLEDGE TO SUPPORT

TERM LIMITS.” /d. §§ 17, 18. Although these ballot labels

are framed as if they are conveying the current sentiments of

the electorate, the Missouri Provision in fact tests candidates

against a particular term limits policy enshrined in state law

back in 1996, and it makes no effort to ascertain or accurately

reflect the current wishes of a federal candidate’s constitu-

ents. Candidates are given no opportunity on the ballot to

respond to or explain these highly misleading labels; indeed,

under Missouri law, they are not even permitted within

twenty-five feet of the polling place.

The Constitution does not permit the State of Missouri to

abandon its impartiality and participate in congressional elec-

tions as an interested advocate. A State’s delegated authority

to regulate the “Times, Places and Manner” of such elections

— a phrase that has always referred to substantively neutral

procedural regulations — does not include the power to ma-

nipulate the electoral mechanism so as to encourage the na-

tional government representatives elected from that State to

embrace the State’s view of proper federal policy. Mis-

souri’s suggestion that the Provision is merely a voter educa-

tion mechanism is belied by the fact that the Provision does

not even attempt to convey an accurate message about the

candidates’ adherence to the current sentiments of their con-

stituents, let alone do so in fact.

Petitioner and her amici argue that the Missouri Provi-

sion is constitutional because it is merely a modern-day ver-

sion of the historical practice of constituent instructions to

legislators. This argument fails both because the Missouri

Provision differs in significant respects from the historical

examples Petitioner and her amici cite, and because the his-

tory of instructions shows that the practice has always been

4

sharply criticized, including, for example, by the Framers,

who rejected placing a right to instruct in the First Amend-

ment. Because none of the historical examples involved fed-

eral elections, they have no bearing on the meaning of the

Elections Clause. In addition, most of the historical exam-

ples relied solely on the informal expectation that officehold-

ers would follow constituent sentiment; the Missouri Provi-

sion, by contrast, involves direct state intrusion into the rela-

tionship the Constitution creates and protects between federal

representatives and their constituents.

ARGUMENT

I. THE MISSOURI PROVISION IS AN UNCONSTI-

TUTIONAL USE OF STATE POWER TO AFFECT

THE OUTCOMES OF ELECTIONS TO CON-

GRESS.

The Constitution’s Elections Clause assigns the States

the responsibility of establishing the “Times, Places and

Manner of holding Elections for Senators and Representa-

tives.” U.S. Const. art. I, § 4, cl. 1. The State of Missouri

claims no other constitutional source of power to impose bal-

lot labels on candidates for Congress, (Pet. Br. 28, 38), and

there can be no other. But the Elections Clause grants the

power to establish neutral procedural regulations for federal

elections, not the power to audit the candidates and place

substantive (and, in this instance, highly misleading) com-

ments on the ballot about their adherence to official state

policies on matters of federal law.

Under the Missouri Provision, the State ceases to be a

neutral referee of federal elections and becomes an advocate

for those candidates who favor the State’s official view of

proper federal policy in a particular area (in this instance,

constitutional limits on terms of service in Congress). A par-

tisan state official audits candidates’ public statements and

voting records, then places on the ballot itself an expression

of the State’s disagreement with any candidate who has not

supported the position adopted by the State in 1996 on that

5

issue. While the ballot labels Missouri imposes suggest that

the branded candidates are ignoring the wishes of the “VOT-

ERS,” the Missouri Provision has little or nothing to do with

the actual current sentiments of a candidate’s constituents.

Missouri is testing candidates against a State policy estab-

lished in 1996 and branding those who have not supported

the State’s position. The Constitution does not permit the

States to police candidates for the United States Congress in

this fashion.’

A. A State’s Authority To Prescribe the “Times,

Places and Manner” of Federal Elections May

ixut Be Used To Favor Some Candidates or Pol-

icy Positions Over Others.

The Elections Clause, U.S. Const. art. I, § 4, cl. 1, directs

state legislatures to adopt “Regulations” prescribing the

“Times, Places and Manner” of elections to Congress. This

power is subject (with an irrelevant exception) to the power

of Congress to “make or alter such Regulations.” Jd. This

Court has made clear that the only powers States have with

respect to elections of Members of Congress are those dele-

gated by this Clause, see U.S. Term Limits, Inc. v. Thornton,

3

The Missouri Provision was adopted by popular referendum rather

than by the State Legislature. This makes no constitutional difference:

the issue is whether a State can establish — by whatever method of pass-

ing legislation — an official viewpoint with respect to some federal issue,

then use the electoral mechanism to brand candidates for Congress who

do not support and obey the State’s favored position. On this point, an

action taken by referendum is no more valid than the same action if taken

by the State Legislature. See City of Eastlake v. Forest City Enters., 426

U.S. 668, 676 (1976); Hunter v. Erickson, 393 U.S. 385, 392 (1969); Lu-

cas v. Colorado Gen. Assembly, 377 U.S. 713, 736-37 (1964).

Action by referendum does, however, pose a technical problem in

this instance. The Elections Clause says regulations may be adopted by

“each State by the Legislature thereof.” U.S. Const. art. I, § 4, cl. 1 (em-

phasis added). It is unclear whether States may adopt regulations govern-

ing federal elections by means other than actions of their legislatures. See

California Democratic Party v. Jones, 120 S. Ct. 2402, 2422-23 (2000)

(Stevens, J., dissenting).

6

514 U.S. 779, 804-05 (1995), and Missouri claims no other

constitutional source of power here.‘

This Court has made clear that the States’ power under

the Elections Clause is to prescribe neutral regulations gov-

erning the “mechanics” of federal elections. Foster v. Love,

522 U.S. 67, 69 (1997). The Clause is not a license to the

States to use the mechanics of federal elections to promote or

oppose federal policies favored or disfavored by the State.

First, the very terms “Times, Places and Manner” sug-

gest that the Framers expected the States to carry out elec-

tions to federal office as impartial rule makers and neutral

referees, not as partisans with their own interest in the out-

come. The Court has itself always used those words to refer

to substantive neutrality; indeed, it borrowed the phrase to

describe content-neutral regulation of speech.* As the Court

has said, “the Framers understood the Elections Clause as a

grant of authority to issue procedural regulations, and not as

a source of power to dictate electoral outcomes [or] to favor

or disfavor a class of candidates.” Thornton, 514 U.S. at

833-34. See also Smiley v. Holm, 285 U.S. 355, 366 (1932)

(Elections Clause grants States authority “to enact the nu-

merous requirements as to procedure and safeguards which

experience shows are necessary in order to enforce the fun-

damental [voting] right involved.”).

In addition, the role given to Congress under the Elec-

tions Clause strongly reinforces the conclusion that “Times,

Places and Manner” regulations must be substantively neu-

4

The State’s claimed power could not be “reserved” to the States by

the Tenth Amendment: the power to regulate elections to Congress did

not exist until the Federal Government was created by the Constitution.

The Constitution delegated regulatory power over congressional elections

to the States, subject to the power of Congress to “make or alter” state

regulations. See Thornton, 514 U.S. at 804.

> See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)

(describing “time, place, or manner” regulation of expressive activity as

“justified without reference to the content of the regulated speech”) (in-

ternal quotation marks and citation omitted).

7

tral. The words “Times, Places and Manner” must mean the

same thing as to both Congress and the States. If Congress

could use its power to “make . . . such Regulations” to inject

substantive matters into the election machinery, then instead

of following the policies that voters want on term limits (or

gun control, or farm subsidies, or any other issue), Congress

could manipulate congressional elections to produce future

representatives who favor a given position on these issues; by

analogy to what Missouri has done here, it could simply

adopt a “Regulation” branding the candidates opposed to that

position on the ballot. Even if it were possible to imagine the

Framers giving the States the power to inject their substan-

tive positions into congressional elections, it is inconceivable

that they meant to allow Congress itself to do so. See Thorn-

ton, 514 U.S. at 832 (finding it “unfathomable” that the

Framers would have permitted Congress to set its own quali-

fications, as that “would inevitably lead to congressional self-

aggrandizement”); California Democratic Party, 120 S. Ct.

at 2416 (Kennedy, J., concurring) (“In a free society the State

is directed by political doctrine, not the other way around.”).

More generally, in principle, the obligation to conduct an

election in a democracy inherently includes the obligation to

conduct it impartially. The Court has made clear in numer-

ous contexts — state and federal races, general elections and

primaries — that all State regulation of the electoral process

must be “nondiscriminatory,” “generally applicable,” and

“evenhanded,” Anderson v. Celebrezze, 460 U.S. 780, 788 &

n.9 (1983), as well as “politically neutral.” Burdick v. Taku-

shi, 504 U.S. 428, 438 (1992). The State’s role in an election

is to “protect the integrity and reliability of the electoral

process,” not to skew it, and to “protect{] voters from . . . un-

due influence,” not to persuade them. Burson v. Freeman,

504 U.S. 191, 199 (1992) (plurality opinion). The State may

not jigger the electoral process to “producfe] elected officials

who,” in its view, “better represent the electorate” or “stand

closer to the median policy positions of their districts,” see

California Democratic Party v. Jones, 120 §. Ct. at 2412,

8

and it seems equally clear that the State cannot jigger the

process to produce officials who better represent the State’s

own views. See Tashjian v. Republican Party, 479 U.S. 208,

220 (1986) (invalidating closed primary statute designed to

“ensur[e] that voters are not misled by a ‘Republican’ candi-

date who professes something other than what the State re-

gards as true Republican principles”). “[I]t is especially dif-

ficult for the State to justify a restriction that limits political

participation by an identifiable political group whose mem-

bers share a certain viewpoint,” or that “unfairly or unneces-

sarily burdens ‘the availability of political opportunity’” for

proponents of the singled-out position. Anderson v. Cele-

brezze, 460 U.S. at 793 (citations omitted). See also

Clements v. Fashing, 457 U.S. 957, 965 (1982) (plurality

opinion) (upholding resign-to-run rules that “in no way de-

pend upon political affiliation or political viewpoint”); id. at

973 (Stevens, J., concurring) (regulations must be “even-

handed”; upholding rule where “there is no suggestion . . .

that the State’s classification . . . operates to promote a cer-

tain viewpoint at the expense of another”).°

Finally, the State’s obligation of strict neutrality in elec-

tions to Congress reflects the “fundamental principle” that

“‘the people should choose whom they please to govern

them’” in the Congress of the United States. Powell v.

McCormack, 395 U.S. 486, 547 (1969) (quoting 2 Debates

on the Federal Constitution 257 (Jonathan Elliot ed., 2d ed.,

1836 (1941) (hereinafter “Elliot’s Debates”) (Alexander

Hamilton)). “The people are the best judges of who ought to

represent them” in the national government, and “‘to tell

them whom they shall not elect, is to abridge their natural

rights.” Jd. at 541 (quoting 2 Elliot’s Debates 292-93

® The dissenters in Thornton, although they argued that States may

prescribe additional qualifications for Members of Congress, clearly re-

jected any idea “that States have unbridled power to handicap particular

classes of candidates” and agreed that any new qualifications added

would be subject to scrutiny under the First and Fourteenth Amendments.

Thornton, 514 U.S. at 925 (Thomas, J., dissenting); see also id. at 870.

9

(Robert Livingston)). The Court has recently affirmed “that

the right to choose representatives belongs not to the States,

but to the peuple,” Thornton, 514 U.S. at 820-21, and state

efforts to disfavor candidates for Congress who disagree

with, or fail to obey, state policy would threaten to “sever the

direct link that the Framers found so critical between the Na-

tional Government and the people of the United States.” /d.

at 822. See also id. at 842 (Kennedy, J., concurring) (“Noth-

ing in the Constitution or The Federalist Papers . . . supports

the idea of state interference with the most basic relation be-

tween the National Government and its citizens, the selection

of legislative representatives.”). The State may not decide as

a State that it prefers its residents’ representatives in the

United States Congress to hold a certain set of views, then

enforce that preference by branding any disobedient candi-

date with a negative notation on the ballot the State makes

available pursuant to the Elections Clause.

B. The Missouri Provision Is an Attempt To Use the

State-Controlled Mechanics of Federal Elections

in a Non-neutral Manner To Bring About the

Election of Members of Congress Who Favor a

Specific State Policy.

Contrary to the Petitioner’s argument in this Court, the

Missouri Provision is not a means of conveying voter senti-

ments to candidates for Congress, or of reporting candidates’

views and actions to voters. The Missouri Provision brands

candidates, on the ballot, for not following a state policy

adopted back in 1996 and made a permanent part of the

State’s law. The application of the State’s brand does not

depend on the sentiments of any set of actual voters in any

election after 1996. Far from providing any opportunity for

real communication between candidates and voters, the Mis-

souri Provision is a blunt instrument applied “at the most

crucial stage in the electoral process — the instant before the

vote is cast,” Anderson v. Martin, 375 U.S. 399, 402 (1964),

to punish any candidate who does not pledge to follow, and

10

then actually follow, the State’s policy in every detail. The

State of Missouri has simply decided as a State that it would

prefer its residents’ representatives in Congress to hold cer-

tain views and act in a certain way, and has used its delegated

authority over the conduct of federal elections to punish can-

didates who do not obey.

With the Missouri Provision, the State has stepped out of

its constitutional role as neutral election referee and has be-

come a partisan in each congressional election. It has

adopted a statute setting forth a determination that it wants

every person elected to Congress from Missouri to support

and advance a very specific amendment to the United States

Constitution, and it has prescribed the particular legislative

actions such persons must take, as a matter of state law, in

every parliamentary situation the State could think of. The

State has further announced that it will enforce these direc-

tives through the electoral process itself: an official of the

State (herself chosen in a partisan election) will audit candi-

dates’ fidelity to the State’s policy and instructions, and if

that official finds that a candidate has mot complied (or

pledged to comply) with the State’s instructions, a message

from the State of Missouri will appear next to the candidate’s

name on the official election ballot, accusing her of “DIS-

REGARDJING]” her constituents’ preferences or “DE-

CLIN[ING] TO PLEDGE” to carry out their wishes. Mo.

Const. art. VIII, §§ 17, 18.

The Missouri Provision is, to say the least, not “even-

handed,” Anderson v. Celebrezze, 460 U.S. at 788 n.9, or

“politically neutral.” Burdick v. Takushi, 504 U.S. at 438.

As virtually every court to consider one of these ballot brand-

ing laws has ruled, the brand is nothing less than “an offi-

cially sanctioned recommendation by the State . . . not to vote

for such candidates because they disregarded the instructions

and wishes of their voters.” Donovan v. Priest, 931 S.W.2d

11

119, 128 (Ark. 1996).’ The State responds by suggesting that

its label may not actually convince any voters to change their

votes (see Pet. Br. at 21), but this misses the point: regardless

of the practical impact of the State of Missouri’s official

message, it is clear that the State is violating its duty to con-

duct federal elections impartially and is entering these cam-

paigns as an advocate with an obvious point of view.

The State argues that the Provision is an effort by “the

people[]” of Missouri “to inform each other regarding their

congressional delegation’s compliance” with their wishes.

(Pet. Br. 7.) But the only “people of Missouri” who took any

action at all were the 32% of the electorate who, in 1996,

voted in favor of the Provision.* The label “DISRE-

GARDED VOTERS’ INSTRUCTIONS ON TERM LIM-

ITS,” applied in 2000 (or 2020) to every disobedient Member

of Congress, will commonly be very misleading and often

entirely false:

Constituents. In 1996, a majority of the voters in a par-

ticular congressional district may mot have voted in favor of

the Provision. (As Petitioner acknowledges, voters in 28

Missouri counties did not favor the Provision. (See Pet. Br.

21.)) A candidate for Congress who fails to obey Missouri’s

7

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

(“Thus, the labels appear to be an official denunciation of certain candi-

dates who are singled out by the state for their failure to speak in favor of

term limits or take all action that § 17 requires.”); Miller v. Moore, 169

F.3d 1119, 1125 (8th Cir. 1999) (“[the] ballot labels effectively place the

state’s official stamp of disapproval on . . . candidates . . . whom the state

disfavors because of their views on a single political issue”); Barker v.

Hazeltine, 3 F. Supp. 2d 1088, 1094 (D.S.D. 1998); League of Women

Voters v. Gwadosky, 966 F. Supp. 52, 61 (D. Me. 1997); Advisory Op. to

the Att'y Gen. re Term Limits Pledge, 718 So. 2d 798, 803 n.3 (Fla. 1998)

(label is “obviously intended to be, and would be, a negative comment on

the candidate at issue”).

* The Missouri Provision received 1,075,215 votes in-its favor in the

November 1996 election. There were 3,342,849 registered voters in Mis-

souri at that time. See Official Manual, State of Missouri, 1997-1998, at

547, 591 (Jim Grebing ed.).

12

term limits instructions therefore may be following the

wishes of a majority of the voters in her district. But the bal-

lot will not say she OBEYED THE WISHES OF VOTERS

IN HER DISTRICT. The Secretary of State will brand her as

having “DISREGARDED VOTERS’ INSTRUCTIONS,”

and she will have no equivalent opportunity to respond that

she is in fact doing what her own constituents favored.

Passage of time. The Missouri Provision became part of

Missouri law in 1996. It will continue to brand disobedient

candidates in subsequent elections forever, until the precise

term limits proposal called for becomes part of the United

States Constitution. But there is no reason to assume that

voter sentiments will remain unchanged. See, e.g., Matthew

Vita, Political Appeal of Term Limits Appears to Wane,

Wash. Post, July 17, 2000, at Al. Even the State concedes

that “[t]he voters in subsequent years may have a different

view.” (Pet. Br. 21.) This mismatch, too, illustrates that the

Missouri Provision is not intended to convey any accurate

message to voters as to where candidates stand, but rather to

skew elections against candidates who do not follow the

State’s policy on a federal term limits amendment.

Alternative term limits proposals. The Missouri Provi-

sion directs Members of Congress to vote for a specific term

limits proposal and against all competing proposals, includ-

ing proposals that would allow longer, but still limited,

terms. Mo. Const. art. VIII, § 17. It is the product of a

struggle within the term limits movement over shorter versus

longer terms, each anathema to supporters of the other.’ But

° At the time the Missouri Provision was adopted, there was an active

debate within the term limits movement as to the appropriate limits for

incumbents to serve. Many proponents of term limits did (and still do)

support longer limits than those contained in the Missouri Provision. See,

e.g., David Hess, Gingrich Pledges To Fight Term Limits of Less Than 12

Years, Phila. Inquirer, Jan. 12, 1995, at A9, Matthew Vita, Political Ap-

peal of Term Limits Appears to Wane, Wash. Post, July 17, 2000, at AS

(chart showing the different term limits proposals that have been adopted

in the various states).

13

there is no reason to assume that all Missouri VOTERS who

favored the particular proposal set forth in the 1996 referen-

dum would have opposed, and wanted their Member of Con-

gress to vote against, competing term limits proposals: the

referendum did not give VOTERS alternative choices. Nev-

ertheless, a Member who fails to vote against a measure that

Missouri voters might well in fact have favored is also

branded as having “DISREGARDED VOTERS’ INSTRUC-

TIONS.”"°

Term limits measures attached to larger bills. A Mem-

ber of Congress may vote against a bill that contains the Mis-

souri-prescribed term limits measure but also contains other

provisions that the Member’s constituents oppose. She will

be branded as having “DISREGARDED VOTERS’ IN-

STRUCTIONS” with no opportunity to rebut the ballot label

with an explanation of the offsetting considerations.

In sum, when the Missouri Secretary of State tells a can-

didate’s constituents that the candidate has “DISRE-

GARDED VOTERS’ INSTRUCTIONS,” the VOTERS in

question are not the voters in her own district; they may have

changed their minds in the lengthening years since 1996;

they may have equally favored a different term limits meas-

ure that the candidate got branded for not rejecting; and they

might in fact agree with the candidate in rejecting a term lim-

its measure coupled with unacceptable other provisions. But

the point is not merely that the ballot brand is highly mislead-

ing. The Missouri Provision is simply not a serious effort to

convey current voter sentiments to candidates, or to disclose

candidate performance to voters. It is an attempt to impose a

policy adopted by the State in 1996 by using the State’s con-

trol over the contents of the ballot to skew elections against

candidates who do not follow that policy to the letter.

10

Similarly, a candidate who declares her support for a competing

term limits proposal will still be branded as having “DECLINED TO

PLEDGE TO SUPPORT TERM LIMITS.”

14

It is particularly offensive that the State has chosen to

impose its 1996 policy choice by placing its message in the

most sacred of secular places: on the ballot. As this Court

recognized in Anderson v. Martin, 375 U.S. 399 (1964), mes-

sages from the State on the official election ballot carry a

disproportionate weight precisely because they bring the ap-

parent “power of the State” to bear at “the most crucial stage

in the electoral process — the instant before the vote is cast.”

Id. at 402. By branding candidates on the ballots used to

elect them, the State of Missouri “direct[s] the citizen’s atten-

tion to the single consideration of” a candidate’s position on

the State’s favored issue, and signals that the candidate’s po-

sition should be “an important — perhaps paramount — con-

sideration in the citizen’s choice.” /d.''

The Court has also held that the moment when the voter

casts his ballot is sufficiently sensitive that it may be “neces-

sary” for a State to ban all electioneering around the polling

place to protect the voter from “undue influence.” Burson v.

Freeman, 504 U.S. at 199, 206. For this very reason, in fact,

the State of Missouri has made it unlawful to conduct any

campaign activities in a polling place or within twenty-five

feet of the outside door. See Mo. Rev. Stat. § 115.637(18)."”

'! For this reason, several federal courts have ruled that government

entities may not manipulate the content of ballots (or even the arrange-

ment of information on a ballot) to favor one candidate or position over

another. See, e.g., Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992) (invali-

dating statute that permitted party candidates to use party labels on the

ballot, but barred non-party candidates from labeling themselves “Inde-

pendents”), Georges v. Carney, 691 F.2d 297, 301 (7th Cir. 1982) (up-

holding statute that neutrally prevented any advisory referenda from ap-

pearing on ballot, “case would be different” if government entity could

get its own referenda on the ballot, particularly if entity “was taking

sides” on matters of public debate); Graves v. McElderry, 946 F. Supp.

1569 (W.D. Okla. 1996) (invalidating State’s practice of always placing

Democratic candidates at top of ballot).

'2 Moreover, even if the State of Missouri did permit candidates to

speak at polling places, they would still have no right of access to the

ballot itself in order to answer or explain the State’s disparaging brand.

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

ev cate Sal Swanger

15

A particular irony of this case is that, while the State of Mis-

souri has deemed the moment of voting so sacrosanct (and

the risk of undue influence so great) that the candidate can-

not be within twenty-five feet of the building, the State may

approach the voter in the voting booth itself and tell her how

to cast her vote.

Finally, the fact that the Missouri Provision was itself

adopted by public referendum does not render it constitu-

tional. (Cf Pet. Br. 6-7.) A State cannot do by referendum

what it could not do through its legislature. “The sovereignty

of the people itself is subject to those constitutional limita-

tions which have been duly adopted and remain unrepealed.”

Hunter v. Erickson, 393 U.S. 385, 392 (1969). See also City

of Eastlake v. Forest City Enters., 426 U.S. 668, 676 (1976);

Lucas v. Colorado Gen. Assembly, 377 U.S. 713, 736-37

(1964). And the method by which the Provision became a

part of state law does not alter its legal force or its require-

ment that elected State officials audit candidates in federal

elections and pronounce judgment on them to the voters in

the name of the State itself.'® See Thornton, 514 U.S. at 822

n.32 (invalidating term limits amendment to Arkansas Con-

stitution adopted by referendum and holding method of adop-

tion to be irrelevant). The State cannot step out of its consti-

tutional role as the impartial arbiter of federal elections,

'? It is this aspect of auditing and pronouncing judgment on candi-

dates, as well as the intended normative content of the labels, that distin-

guishes the Missouri Provision’s brand from the political party labels

cited by the Petitioner and the incumbency labels cited by her amici. (See

Pet. Br. 21-22; Mo. Term Limits Br. 24-28.) Petitioner is correct that

party labels may be taken by voters as revealing something substantive

about a candidate, but the candidate herself determines with which politi-

cal party she will affiliate, and (as this Court has held) the State may not

audit her campaign platform to make sure that she in fact stands for the

principles that the State believes a candidate with that party label should

uphold. See Tashjian v. Republican Party, 479 U.S. at 220. Similarly,

incumbency labels carry no intentional message from the State (let alone

a message about the State’s favored view on any particular policy issue),

and they are applied neutrally.

16

whether the drive for abandoning neutrality comes from the

legislature or a public referendum.

Il. HISTORY DOES NOT SUPPORT THE CONSTI-

TUTIONALITY OF THE MISSOURI PROVISION.

Petitioner and her amici seek to defend the constitution-

ality of the Missouri Provision with historical examples of

instructions issued to officeholders. The defense fails for two

reasons. First, all of the examples differ in critical respects

from the Missouri Provision. None of these examples in-

volved federal elections or the State’s powers under the Elec-

tions Clause. None involved a state brand on the ballot de-

signed to discourage voting for candidates for federal office

who disobey a state policy. Most were simply expressions of

voter views backed only by the threat that voters would turn

away from a candidate who disagreed. Second, Petitioner’s

and her amici’s portrait of the practice of instructions is very

misleading. Instructions were never a generally accepted po-

litical practice. On the contrary, the Framers expressly re-

jected adding a “right to instruct” national representatives to

the First Amendment. Having observed the adverse conse-

quences of binding instructions under the Articles of Confed-

eration and in pre-1789 state legislatures, the Framers sought

to avoid the strangling of legislative deliberation and the pre-

dominance of local over general interests that they believed

instructions breed.

A. Petitioner’s and Her Amici’s Historical Examples

Do Not Speak to the Constitutionality of the Mis-

souri Provision Because None Involved Placing a

Message Setting Forth State Policy on a Federal

Election Ballot.

The historical examples proffered by Petitioner and her

amici lack the features that render the Missouri Provision un-

constitutional. None of the historical examples involved a

State placing a brand on a federal election ballot as a means

to influence the election of federal legislators who favor a

17

particular state policy. In fact, none of the examples in-

volved federal elections conducted pursuant to the Elections

Clause at all.

Petitioner says that “[f]rom the earliest days of our coun-

try, the people have exercised their right to influence the

form of their government.” (Pet. Br. 11.) But that unobjec-

tionable statement is wholly unenlightening as to the consti-

tutionality of the Missouri Provision. Of course citizens may

communicate their views to their representatives and vote

against those who disagree. It does not follow that States

may require Members of Congress to follow state policies in

their legislative activities and then take formal action penaliz-

ing those who do not. Cf AFL-CIO v. March Fong Eu, 686

P.2d 609 (Cal. 1984) (finding unconstitutional a state initia-

tive that required state legislators to petition for a constitu-

tional convention on pain of losing their pay); State ex rel.

Harper v. Waltermire, 691 P.2d 826, 829 (Mont. 1984) (find-

ing unconstitutional an initiative that would have required

state legislators to petition Congress for a balanced budget

amendment under threat of confinement in session and no

pay).

The question in this case is whether a State may use its

Elections Clause power over the ballot to brand candidates

for federal office for disagreeing with the State’s official pol-

icy on matters of federal law. Petitioner’s and her amici’s

examples do not help to answer this question. None of the

examples, from any time period, involved instructions given,

received, or interpreted in conjunction with a federal election.

Accordingly, they do not implicate the State’s power under

the Elections Clause. Most of the pre-twentieth century ex-

amples of instruction do not centrally involve state enforce-

ment at all. The twentieth century examples, some of which

do involve state-sponsored pledges and ballot notations in

elections, deal only with state elections, not the Elections

Clause, nor the relationship between Members of Congress

and their constituents.

18

Pre-twentieth century examples. None of the pre-

twentieth century examples of constituent instructions in-

volved any form of government enforcement.'* Representa-

tives who flouted the wishes of their constituents had only

the wrath of the voters to fear. As Petitioner concedes, any

coercive effect of such instructions was a product of the po-

litical culture of the time; representatives who disagreed with

constituent instructions generally felt compelled either to

obey anyway or to resign. (See Pet. Br. 14 n.13); see also

Gordon S. Wood, The Creation of the American Republic

1776-1787, at 191 (1969). Kobach also concedes that “no

formal legal mechanism compelled the representative to obey

his instructions” in the colonial era. (Kobach Br. 5.)

But the constitutional question is whether the State can

use its powers to conduct federal elections to inject its own

view into the voters’ choice of Members of Congress. The

answer is no: “It was the genius of [the Framers’] idea that

our citizens would have two political capacities, one state and

one federal, each protected from incursion by the other” and

that each layer of government would have “its own direct re-

lationship, its own privity, its own set of mutual rights and

obligation to the people who sustain it and are governed by

it.” Thornton, 514 U.S. at 838-39 (Kennedy, J., concurring).

When citizens vote for their federal legislators, “they act in a

federal capacity and exercise a federal right,” protected from

State interference. Jd. at 842 (Kennedy, J., concurring). The

Missouri Provision interferes with the “direct link” that the

'* See Pet. Br. 11-14 (recounting instructions issued to delegates to the

Second Continental Congress who crafted the Declaration of Independ-

ence; to the Framer. of the Constitution, and to Members of the First

Congress regarding the Bill of Rights); Kobach Br. 4-19 (discussing in-

structions to delegates to the First and Second Continental Congresses; to

state delegates who were framing state constitutions; to States’ delegates

to the Congress of the Articles of Confederation; to delegates to the Con-

stitutional Convention; to delegates to state ratifying conventions, and to

Members of Congress from state ratifying conventions in order to secure

the Bill of Rights).

19

Constitution created between the people and their national

representatives by forcing citizens to view the candidate, at

the very moment of voting, through a State-imposed lens. Jd.

at 803 (citing FERC v. Mississippi, 456 U.S. 742, 791 (1982)

(O’Connor, J., concurring in judgment in part and dissenting

in part)).

Petitioner’s and her amici’s heavy reliance on pre-

Constitutional examples of constituent instructions also ig-

nores the establishment of a “National Government [in

which] representatives owe primary allegiance not to the

people of a State, but to the people of the Nation.” Thornton,

514 U.S. at 803. Making national representatives account-

able to the State was perhaps not inconsistent with the Arti-

cles of Confederation, where national legislators were

charged with representing “‘the States, not the people of the

States,”” FERC v. Mississippi, 456 U.S. at 791 (O’Connor, J.,

concurring in the judgment in part and dissenting in part)

(quoting 1 The Records of the Federal Convention of 1787, at

133 (M. Farrand ed. 1911)), and the State retained the right to

“recall its delegates .. . at any time” and “send others in

their stead,” Art. of Conf., art. V. But the Framers rejected

this system in adopting the Constitution. They jettisoned

State recall power over federal legislators precisely because

they intended federal elections themselves to be the means

for holding federal representatives accountable to their con-

stituents. See Thornton, 514 U.S. at 810 n.20; id at 889-90

(Thomas, J., dissenting); see also 2 Elliot’s Debates 320

(Alexander Hamilton) (“Is [a Senator] simply the agent of the

State? No. He is an agent for the Union and he is bound to

perform services necessary to the good of the whole. . . .”).

Twentieth century examples. The twentieth century ex-

amples of measures attempting to bind legislators are no

more persuasive.'* Around the turn of the last century, sup-

'S See Pet. Br. 14-17 (discussing pledges taken by state legislators to

spur passage of the Seventeenth and Twenty-First Amendments); Kobach

Br. 17-19 (discussing instructions to delegates to state conventions re-

20

porters of the direct election of United States Senators suc-

cessfully pressed several states to alter the elections process

for state legislators in order to ensure the election of state

legislators who would, in turn, choose Senators who favored

adoption of what became the Seventeenth Amendment. See

1 George H. Haynes, The Senate of the United States: Its

History and Practice 100-04 (1938) (describing the systems

in Oregon, Nebraska, and North Dakota). Oregon, for exam-

ple, conducted non-binding popular elections in which voters

could express their preference for United States Senator, and

permitted candidates for state legislative office to adopt a

pledge (or not) either to vote for the people’s choice for

Senator or to “consider” the people’s choice; these candidates

could also compose a one hundred word statement to file

with their nominating petitions and a twelve word statement

to appear next to their names on the ballot. See id. at 100-01.

Nebraska added a step by providing for a ballot notation for

candidates who chose either of the two pledges and no nota-

tion for candidates who chose not to adopt a pledge at all.

See id. at 103. Other states, including Idaho and North Da-

kota, also adopted similar provisions.

Although these early twentieth century measures in-

volved States printing ballot notations (or other election-

related statements), any similarity to the Missouri Provision

ends there. Most notably, none of these measures provided

for State involvement in federal elections, and thus none

raised any question under the Elections Clause.'° But other

garding adoption of the Twenty-First Amendment), Mo. Term Limits Br.

14-21 (discussing pledges and ballot notations for state legislators de-

signed to spur passage of the Seventeenth Amendment and instructions

and pledges for delegates to state conventions considering ratification of

the Twenty-First Amendment); Neb. Br. 15-20 (same).

'6 The measures States adopted to press for repeal of the Eighteenth

Amendment and ratification of the Twenty-First Amendment also did not

apply to elections for federal office. The measure that the Alabama Su-

preme Court determined was constitutional in Jn re Opinion of the Jus-

tices, 148 So. 107 (Ala. 1933), for example, required candidates for dele-

gate to a state convention to pledge to follow the popular sentiment ex-

21

distinctions abound. Under Nebraska’s early twentieth cen-

tury measure, a candidate could avoid a ballot notation alto-

gether by choosing not to adopt either pledge, while under

the Missouri Provision a disobedient candidate cannot escape

the State’s punishment on the ballot.'’ See 1909 Neb. Laws,

ch. 51, § 2, at 253. The Oregon provision did not include

State-approved ballot language at all; the candidate himself

crafted the twelve-word statement that could appear on the

ballot. See 1 Haynes, supra, at 101. Contrary to Petitioner’s

assertion that Oregon “required” candidates to sign one of the

two offered pledges, neither Nebraska nor Oregon made

mandatory the adoption of a pledge on the nominating peti-

tion. See id. at 101-03. In fact, when North Dakota did re-

quire candidates to pledge to vote for the people’s choice for

Senator, the North Dakota Supreme Court struck down that

portion of the law as unconstitutional. See State ex rel.

McCue v. Blaisdell, 118 N.W. 141 (N.D. 1908). The real

“teeth” to the Oregon system lay not in the law but in “effec-

tive popular agitation.” 1 Haynes, supra, at 102. Like Odys-

seus binding himself to the mast to resist the song of the Si-

rens, the voters of Oregon circulated petitions among them-

selves, pledging not to sign a petition or vote for the nomina-

tion of any candidate who did not promise to vote for the

people’s choice for Senator.

Finally, the existence of these examples of course does

not speak to their constitutionality. “One may properly ques-

tion the extent to which the States’ own practice is a reliable

indicator of the contours of restrictions that the Constitution

imposed on States.” Thornton, 514 U.S. at 823.

pressed in a referendum on the repeal of Prohibition. This provision in-

volved purely internal state processes and did not intrude into the rela-

tionship between the federal representative and his constituents.

“ Similarly, an Idaho law provided for pledge notation on the ballot

only if the candidate promised to support the people’s choice for Senator.

See Idaho Session Law, House Bill No. 16, § 41 (1909). The law did not

impose a mark of shame for choosing not to precommit (or not to reveal

one’s choice at all).

22

B. Petitioner and Her Amici Ignore the Consistent

Opposition to Instructing Representatives and

Misconstrue the Framers’ Rejection of a Consti-

tutional Right to Instruct.

Petitioner’s and her amici’s tale of legislative instruction

in America omits an important chapter: the longstanding,

principled opposition to constituent instructions. Contrary to

their portrayal of constituent instructions as an integral aspect

of American representative government, the Framers con-

sciously chose, after a “long debate” on the merits of the

practice, not to include a right to instruct representatives in

the First Amendment’s catalog of political rights that they

deemed essential to the operation of the new representative

government. The Complete Bill of Rights: The Drafts, De-

bates, Sources, & Origins 162 (Neil H. Cogan ed., 1997).

Before the adoption of the Constitution, there was no

consensus about the desirability of instructions, either to state

or national legislators. In fact, when the Framers debated

adding to the First Amendment a right to instruct representa-

tives, Representative Hartley of Pennsylvania observed that

Americans “differed exceedingly” about instruction. 1 An-

nals of Cong. 761 (Joseph E. Gales ed., 1789). Opponents of

binding instructions often framed their opposition in terms of

foundational principles of representation. They explained

that although the people were the source of all political

power, they could only exercise that power through the me-

dium of periodic elections, not by continuously instructing

their representatives. See, e.g., Wood, supra, at 370-71 (de-

scribing Judge Alexander Hanson’s argument against instruc-

tions to state legislators in Maryland in the late eighteenth

century). In the post-Revolutionary War period, “Americans

in almost all the states mounted increasing attacks on the ten-

dencies of the American representational system, [including]

excessive localism, [and] binding instructions .. . . The ideal

of an independent and deliberative legislature, attending to

the common interests of the whole state, would not die.” /d.

at 195-96.

23

Prominent political thinkers, including Alexander Ham-

- ilton, embraced this ideal. See The Federalist No. 71 (“When

ve the interests of the people are at variance with their incli-

nations, it is the duty of the person whom they have ap-

pointed to be the guardians of those interests, to withstand

the temporary delusion, in order to give them time and

opportunity for more cool and sedate reflection.”). Our first

President was among those who “stood for the independence

of the representative” from binding instructions. Robert

Luce, Legislative Principles: The History and Theory of

Lawmaking by Representative Government 462 (1930).

George Washington was not “‘friendly to positive instruc-

tions from electors’” because he believed that representatives

“should be left to act according to the judgment [they] shall

form, after being enlightened by the arguments and collected

wisdom of a deliberative assembly.”” Jd. (quoting 1 Life of

Washington, Writings of Washington, 491). Contrary to the

suggestion that “[James] Madison plainly regarded constitu-

ent instructions as an intrinsic part of Congress’s operations,”

(Kobach Br. 9), Madison staunchly opposed instructions as

incompatible with the essence of representation. He lauded

representative government for its ability to:

refine and enlarge the public views, by passing them

through the medium of a chosen body of citizens

whose wisdom may best discern the true interest of

their country, and whose patriotism and love of jus-

tice will be least likely to sacrifice it to temporary or

partial considerations. Under such a regulation, it

may well happen, that the public voice, pronounced

by the representatives of the people, will be more

consonant to the public good than if pronounced by

the people themselves, convened for the purpose.

The Federalist No. 10.'* Binding instructions undermine the

function of the representative, as understood by Madison, by

In the last footnote of his brief, Kobach attempts to co-opt this oft-

quoted language of Madison to buttress the ballot-label law. First, Ko-

24

preventing him from “refin{ing] and enlarg{ing] the public

views” because the citizens have issued inflexible edicts.

Noah Webster summarized the problem of instructions suc-

cinctly: “They make the opinions of a small part of the state

a rule for the whole — they imply a decision of a question,

before it is heard — they reduce a Representative to a mere

machine, by restraining the exercise of his reason — they

subvert the very principles of republican government.” Noah

Webster, Government. The Practice of Instructing Represen-

tatives Absurd and Contrary to the True Principles of Liberty

1 American Magazine 206 (1787-88).

The Framers’ and others’ opposition to the practice of

instruction stemmed not only from political theory, but also

from first-hand observation of the “bad consequences” of the

practice of binding instruction, which was followed in states

under the Articles of Confederation. 1 Annals of Cong. at

761 (statement of Rep. Hartley). In their view, constituent

instructions caused an unhealthy emphasis on local interests,

to the exclusion of more general interests, because state legis-

lators were treated as ambassadors of quasi-independent

townships and counties. See Wood, supra, at 192-96. By

1788, as the state legislatures were passing a flurry of ill-

considered laws, see id.; id. at 368-69, James Madison con-

cluded that “a spirit of locality” permeated state politics such

bach misconstrues Madison’s central meaning, this text is generally un-

derstood to be an anti-instruction screed. See Akhil Reed Amar, Phila-

delphia Revisited: Amending the Constitution Outside Article V, 55 U.

Chi. L. Rev. 1043, 1059 (1988) (citing Garry Wills, Explaining America

216-30 (1981)); Luce, supra, at 456. Second, the operation of the Mis-

souri Provision is inconsistent with this description of representation.

The Provision leaves no room for federal representatives to do anything

with the “public view” that it encapsulates other than to follow it to the

letter; any deviation is rewarded with a pejorative ballot notation. Inter-

pretation is penalized, not encouraged. The Provision recorded a “voice”

of the people on Election Day in 1996, and instead of allowing the repre-

sentatives to listen to, understand, interpret, and then speak in that voice,

as Madison exhorted, it permits them only to play the recording in the

Capitol.

Oe ee oe

25

that state legislators were “‘everywhere observed to lose

sight of the aggregate interests of the Community, and even

to sacrifice them to the interests or prejudices of their respec-

tive constituents.””'” See Wood, supra, at 195 (quoting

Madison’s Observations on Jefferson’s Draft of a Constitu-

tion for Virginia (1788), Julian P. Boyd ed., 6 The Papers of

Thomas Jefferson 308-09 (1950)). Through binding instruc-

tions, the people sapped the ability of state legislators to “re-

fine” their views in light of information gleaned during legis-

lative debate or to compromise in the interest of the public

good. In short, the people seemed to be supplanting the leg-

islative function of the state legislatures. See Wood, supra,

at 368. Madison was clearly disturbed by this trend, believ-

ing that “the invasion of private rights is chiefly to be appre-

hended, not from acts of Government contrary to the sense of

its constituents, but from acts in which the Government is the

mere instrument of the major number of the constituents.”

Id. at 410. In fact, it was not only the inadequate federal

structure of the Articles of Confederation, but — perhaps

more importantly — the “popular despotism” of the 1780s,

id. at 411, to which the practice of instruction was integral,

that led to the call for a Constitutional Convention. See id. at

467 (citing Madison’s recognition of this phenomenon).

It is thus no surprise that the Members of the First Con-

gress rejected an attempt by Representative Thomas Tucker

of South Carolina to include a “right to instruct” federal rep-

resentatives alongside the rights of speech, press, assembly,

and petition in the First Amendment. 1 Annals of Cong. at

761. Petitioner and her amici basically ignore the substance

of the Representatives’ arguments that instructions are in-

compatible with the principles of republican government en-

19

Noah Webster observed that in the post-Independence period, “most

of the destructive measures which have been pursued by the states [had]

onginated in towns and counties, and been carried out by positive instruc-

tions from constituents to Re »resentatives.” Noah Webster, Government.

The Practice of Instructing Xepresentatives Absurd and Contrary to the

True Principles of Liberty | American Magazine 206 (1787-88).

26

shrined in the Constitution.” In fact, the rejection of the

“right to instruct” was an acknowledgement that the practice

of attempting to bind federal legislators through instructions

was incompatible with the conceptions of representation and

federalism that underlie the Constitution. See Thomas E.

Cronin, Direct Democracy: The Politics of Initiative, Refer-

endum, and Recall 25 (1989), Amar, Philadelphia Revisited,

at 1059-60. The Framers and the Members of the First Con-

gress recognized that the problems faced by the state legisla-

tures in the 1780s would be more severe, both in degree and

in kind, in a national legislature. Even John Adams, a

staunch defender of the right of state citizens to instruct their

state representatives, recognized that instruction from States

to federal legislators was a different and dangerous idea.

Adams wrote that he saw:

‘no right in our [state] Senate and House to dictate,

nor to advise, nor to request our Representatives in

Congress. Congress must be ‘the cloud by day and

the pillar of fire by night’ to conduct this nation, and

if their eyes are to be diverted by wandring light,

accidentally springing up in every direction, we

shall never get through the wilderness. ’

Luce, supra, at 454 (quoting John Adams to J.B. Varnum,

Dec. 26, 1808, Works, IX, 605). See also Vikram David

Amar, The People Made Me Do It: Can the People of the

States Instruct and Coerce Their State Legislatures in the

Article V Constitutional Amendment Process?, 41 Wm. &

Mary L. Rev. 1037, 1090 (2000) (noting that the analysis of

coercive measures applied to state legislators is “quite differ-

ent with regard to federal legislators” because “Congress is

not an agent of people of the states for any purpose” and

“[t]he people of a state cannot displace Congress or preempt

it”).

20 The Brief of the Respondents sets forth this debate in detail, which

we will not repeat here.

27

The context in which the Framers repudiated Represen-

tative Tucker’s proposal makes it clear that their decision

was based on their opposition to instructions, rather than “an

acknowledgement of the fact that such clause would be un-

necessary,” as Kobach asserts. (Kobach Br. 19.) Directly

before debating the merits of the “right to instruct” proposal,

the House took up a proposal to strike out reference to the

right to “assemble” on the grounds that such a right was al-

ready logically encompassed by the right to speak. Cogan,

supra, at 129-31, 143-44. The determination to retain the

right to assemble refutes Kobach’s conclusion that the “right

to instruct” was rejected as redundant.

Opponents of the “right to instruct” generally cited two

reasons for their opposition: (1) fear that such a right would

lead to a predominance of local interests, contravening the

national spirit of Congress and the “direct link” between con-

stituents and their federal representatives and (2) concern

about stifling legislative deliberation. Several who spoke

against the “right to instruct” explained that instruction leads

to parochial interests trumping communal interests. See 1

Annals of Cong. at 761 (statement of Rep. Hartley) (“[C]an it

be supposed that the inhabitants of a single district in a State,

are better informed with respect to the general interests of the

Union, than a select body assembled from every part?”); id.

at 764 (statemen: of Rep. Jackson) (fearing that instructions

would “drive the house into a number of factions”); id. at 767

(statement of Rep. Madison) (“I do not believe the inhabi-

tants of any district can speak the voice of the people; so far

from it, their ideas may contradict the sense of the whole

people.”). Legislators acting under instructions are guided

only by the narrower perspective of their electors, rather than

the broader sense of the public good. But “Members of Con-

gress are chosen by separate constituencies . . . they become,

when elected, servants of the people of the United States.

They are not merely delegates appointed by separate, sover-

eign States; they occupy offices that are integral and essential

components of a single National Government.” Thornton,

28

514 US. at 837-38. That is, in essence, why Madison con-

cluded that binding instructions are “of a doubtful, if not of a

dangerous nature.” 1 Annals of Cong. at 767.

Opponents of instruction also recognized that it deters -

even renders unnecessary — legislative deliberation. This

“displace[ment of] everyday deliberation in ordinary gov-

ernment entities . . . threatens to swallow up Madison’s

scheme of representative government.” Amar, Philadelphia

Revisited at 1059. The Framers understood that legislators

who have no choice but to follow the dictates of their con-

stituents can derive no benefit from the exchange of views

and information that a legislative assembly provides. Several

Representatives who disapproved of the addition of a “right

to instruct” raised the specter of a national legislature that

had no function but to tally predetermined votes. See | An-

nals of Cong. at 763 (statement of Rep. Clymer) (asserting

that instruction “is a most dangerous principle, utterly de-

structive of all ideas of an independent and deliberative body,

which are essential requisites in the legislatures of free gov-

ernments”); id. at 763-64 (statement of Rep. Sherman) (argu-

ing that instructions give people the false impression that

they can “control the debates of the legislature,” which

would, in turn, “destroy the object of their meeting”); id. at

770 (statement of Rep. Livermore) (denying the binding

force of instructions because “it might be expedient, nay ab-

solutely necessary, to sacrifice [various measures] in mutual

concessions” as part of the lawmaking process). Accord-

ingly, the rejection of the “right to instruct” federal represen-

tatives was an affirmation that the Constitution values — in-

deed, demands — that federal representatives not be bound

by instructions that will inevitably eviscerate the national

spirit and deliberative character of our Congress.

Given the long and consistent history of strong opposi-

tion to the general practice of instructions, as well as the re-

jection of a constitutional right to instruct by the First Con-

gress, it is not surprising that the practice died out in the mid-

nineteenth century. See Richard B. Bernstein with Jerome

cae tet oP

29

Agel, Amending America: If We Love the Constitution So

Much, Why Do We Keep Trying to Change It? 123 (1993).

Petitioner’s unsupported assertion that the practice “contin-

ued unabated” after the adoption of the Constitution is simply

wrong. (Pet. Br. 13.) In addition, the vestigial examples of

instructions that remained after the Framing were instructions

from state legislatures to the United States Senators they ap-

pointed directly, a practice which was mooted by the adop-

tion of the Seventeenth Amendment. See 2 George H.

Haynes, The Senate of the United States: Its History and

Practice 1027 (1938). Accordingly, these instructions are

irrelevant to the constitutionality of the Missouri Provision.

Moreover, when instructions did crop up after the Fram-

ing, their desirability remained contested. For example, in

citing the Twelfth Amendment as an example of the use of

instructions to attempt to amend the Constitution, (see Ko-

bach Br. 17), Kobach neglects to mention that Senators who

opposed the practice vehemently criticized it in that instance.

See Luce, supra, at 462-63 (quoting Senator William Plumer,

who explained that four or five state legislatures had at-

tempted to bind their federal representatives to favor the

amendment but that “‘the Legislatures throughout the Union

will be told that they must adopt them because Congress, in

its wisdom, has seen fit to propose them. We, because they

have done it; they, because we have; with no independent

action in either case. If such instructions are obligatory, we

are mere machines.””). Similarly, on the hotly debated issue

of the re-charter of the Bank of the United States in 1811,

Senator Timothy Pickering criticized instructions as incom-

patible with the Constitution’s conception of representation:

If State Legislatures undertake to dictate, by their

instructions, or by requests which are intended to

operate equally with instructions, what votes shall

be given by their Representatives in Congress, they

so far assume the powers vested by the Constitution

exclusively in Congress. And if their instructions or

30

requests are obeyed, then the State Legislatures, and

not Congress, enact laws for the United States.

Luce, supra, at 464 (citation omitted in original). Finally,

echoing the sentiments of the Framers who had rejected a

constitutional right to instruct, Representative Calhoun criti-

cized the practice when it appeared after the adoption of the

Constitution: “The ear of this House on this subject, said he,

is sealed against truth and reason. What has produced this

magic spell? Instructions! Well, then, has it come to this?

Have the people of this country snatched the power of delib-

eration from this body?” 30 Annals of Cong. 576 (1817). In

light of this steady pattern of opposition, and the Framers’

considered decision to reject a constitutional right to instruct,

Petitioner’s and her amici’s smattering of post-Framing and

pre-Seventeenth Amendment examples of instructions to

Members of Congress do not form any consistent or durable

pattern of practice that deserves deference.

CONCLUSION

For the foregoing reasons, the Court should affirm the

decision of the Court of Appeals for the Eighth Circuit.

Respectfully submitted,

Louis R. COHEN

Counse! of Record

JONATHAN J. FRANKEL

ANNE HARKAVY

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000

Counsel for Amici Curiae

League of Women Voters of the United States and

League of Women Voters of Missouri