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Missouri term limits ballot measure goes to U.S. Supreme Court

In this story: Arguments for ballot labels Critics: Ballot labels punish candidates Background of the case Waning popularity of term limits RELATED STORIES, SITES

By Raju Chebium
CNN.com Correspondent

WASHINGTON (CNN) -- The U.S. Supreme Court will hear arguments Monday on the constitutionality of a Missouri law that requires notices on ballots that identify candidates who do not support term limits.

CASE BRIEFS 8th Circuit U.S. Court of Appeals opinion and briefs Cook v. Gralike, No. 99-929 (FindLaw)  ALSO Have term limits reached their limit? Read the column

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In November 1996, Missouri voters decided that the candidates they choose for congressional office should support term limits.

Fifty-eight percent of the voters approved a referendum to amend the Missouri constitution to require congressional candidates to work to amend the U.S. Constitution to include term limits language.

Candidates who failed to support term limits would have labels placed beside their names on subsequent ballots identifying them as having ignored voters' wishes.

Democrat Douglas Gralike successfully challenged the ballot measure in federal trial and appeals court soon after the November 1996 election. His lawsuit named Rebecca Cook, the Missouri secretary of state, who was authorized to decide whether to add the term-limits labels to ballots. Missouri appealed to the U.S. Supreme Court, which accepted the case in April.

The high court will decide whether this law violates Article V and the First Amendment of the U.S. Constitution, as Gralike successfully argued at the lower-court level. Article V spells out how the Constitution can be amended and the First Amendment preserves freedom of speech.

Arguments for ballot labels

Cook's lawyers argue that voters have always sent their members of Congress explicit instructions on how to vote on particular issues. Eight of the 13 original colonies sent delegates to the first Congress with instructions on how to vote on the Bill of Rights, the lawyers argue in court papers.

"Nothing in the history, text or spirit of Article V prohibits the people from participating in the evolution of their government by communicating their opinion on a prospective amendment to congressional candidates or by commenting on the ballot about the behavior of these candidates," they argued.

They argued the recent court decisions striking down term-limits measures "interfere with the public's right to communicate about the electoral process" and "frustrate the public will."

Kris Kobach, a professor at the University of Missouri-Kansas City, said the case centers on the nature of representative democracy.

"Is it a representative democracy where the voters stay out of the political process except when they are in the voting booths?" said Kobach, who wrote a friend-of-the-court brief in Missouri's favor. "Or is it a representative democracy where voters give their elected officials marching orders and watch them closely?"

Critics: Ballot labels punish candidates

Gralike's lawyers argued that ballot labels punish candidates who disagree with voters.

A ballot must remain "neutral" and not become a tool for states to "bludgeon candidates into supporting federal legislation favored by the state," they argued in court papers.

"The question is whether the state government can use the ballot to decide ... what issues voters are going to vote upon," said Jonathan Franklin, a Washington attorney representing Gralike.

"This case is not ... about the right of the 'people' to express their views," Gralike's attorneys wrote. "But the state government may not place its thumb on the electoral scale in an attempt to interfere with the freedom of federal candidates."

Background of the case

Term-limits labels never made it to the Missouri ballot because courts struck down the ballot initiative as unconstitutional.

State officials would have been able to add this phrase beside the names of incumbents who failed to support term limits: "Disregarded voters' instructions on term limits," according to the ruling by the 8th U.S. Circuit Court of Appeals in Gralike's favor.

Non-incumbents who refused to sign a term-limits pledge would have had this notation beside their names: "Declined to pledge to support term limits."

In its July 1999 ruling, the 8th Circuit said the "pejorative" labels were designed to discourage votes for candidates who opposed term limits.

The First Amendment "bars not only state action which restricts free expression but also state action which compels individuals to speak and express a certain point of view," according to the 2-1 majority opinion.

"Article V specifically delegates the amendment process to legislative bodies, not the voters," according to the opinion. "Supreme Court precedent supports the conclusion that people have a limited, third-party role in the amendment process."

Gralike withdrew from the 1998 Democratic primary for a House seat, two years after filing suit, according to his attorney Arthur Benson of Kansas City, Missouri.

Michael Harman, who unsuccessfully ran as a Libertarian in 1998 and is a Republican candidate for a House seat this year, is the other plaintiff in the case.

Waning popularity of term limits

Term limits, a key plank of the Republican Party platform, propelled the GOP to majorities in the House and the Senate in 1994 under then-House Speaker Newt Gingrich's leadership.

Eight other states passed term-limits referendums in November 1996 -- Alaska, Arkansas, Colorado, Idaho, Maine, Nebraska, Nevada and South Dakota, according to Gralike's attorneys. California passed a similar measure in 1998 called Proposition 225.

All initiatives were struck down or overruled by state attorneys general, Gralike's attorneys said.

Paul Jacob, national director of U.S. Term Limits, a Washington-based lobbying group, said Alaska is the only state with a term-limits law still on the books. But the state does not enforce the law, he said.

If the high court rules in Missouri's favor, the term-limits movement could be rekindled, prompting voters nationwide to "take control of their ballots," Jacob said.

Stuart Rothenberg: Is this the last dance for term limits?
April 14, 2000
Stuart Rothenberg: Challengers look to Rep. Chenoweth to honor term-limit pledge
January 26, 1999

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