Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

JEREMIAH W. (JAY) NIXON

Attorney General of Missouri

JAMES R. McADAMS*

Chief Counsel for Litigation

TINA M. CROW HALCOMB

J. ERIC DURR

Assistant Attorneys General

P.O. Box 899

Jefferson City, MO 65102

(573) 751-3321

*Counsel of Record

I.

Do the people violate Article V of the Constitution when they participate in the evolution of their government by communicating their opinion to federal legislators or by communicating on the ballot to voters about the behavior of federal candidates?

II.

Do the people violate the Qualifications Clauses and the First Amendment when they comment on the ballot regarding an elected representative's actions and voting record or when they comment on the ballot about a non-incumbent congressional candidate's silence concerning a prospective constitutional amendment?

III.

Does the Speech and Debate Clause of the Constitution prohibit the people from commenting on the ballot about a federal legislator's actions and voting record in regard to a prospective constitutional amendment?

All of the parties to this proceeding are listed in the caption except Michael Harmon, the 1998 Libertarian Party candidate for Missouri's Seventh Congressional District, who intervened as an appellee in the United States Court of Appeals for the Eighth Circuit after Donald Gralike withdrew as a candidate for the House of Representatives.

Page

OPINIONS BELOW 1

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED 2

STATEMENT OF THE CASE 8

REASONS FOR GRANTING THIS WRIT 11

I. A CONFLICT EXISTS BETWEEN THE LOWER COURTS AS TO WHETHER ARTICLE V PROHIBITS CITIZENS FROM ADVISING FELLOW VOTERS AND THEIR ELECTED REPRESENTATIVES ON A PROSPECTIVE AMENDMENT, A CONFLICT THAT THE HISTORY OF ARTICLE V RESOLVES IN FAVOR OF CITIZEN PARTICIPATION. 13

A. The History of Citizen Instructions. 14

B. Conflicting Opinions and the Misinterpretation of the Constitution. 18

II. THE EIGHTH CIRCUIT SERIOUSLY MIS-CONSTRUED THE CONSTITUTION IN HOLDING THAT A MERE COMMENT ON THE SILENCE OR RECORD OF A CANDIDATE FOR CONGRESS CREATED A NEW QUALIFICATION FOR SERVICE IN CONGRESS.
22

III. MISSOURIANS DID NOT VIOLATE THE FIRST AMENDMENT BY COMMUNICATING ABOUT THE ACTUAL OR DESIRED CONDUCT OF CANDIDATES FOR FEDERAL OFFICE AND THE EIGHTH CIRCUIT'S CONCLUSION THAT THEY DID CREATES A DANGEROUS PRECEDENT. 24

IV. MISSOURIANS DID NOT VIOLATE THE SPEECH AND DEBATE CLAUSE BY COMMENTING ON THE BEHAVIOR OF MEMBERS OF CONGRESS WHO WERE RUNNING FOR RE-ELECTION AND THE EIGHTH CIRCUIT'S CONCLUSION TO THE CONTRARY HAS FAR-REACHING, ADVERSE CONSEQUENCES. 27

CONCLUSION 30

CASES Page

Arkansas Term Limits v. Donavon, 519 U.S. 1149 (1997) 13

Barker v. Hazeltine, 3 F.Supp.2d 1088 (D. S.D. 1998) 13, 14

Baxter v. Palmigiano, 425 U.S. 308 (1976) 25

Bramberg v. Jones, 978 P.2d 1240 (Cal. 1999) 13

Burdick v. Takushi, 504 U.S. 428 (1992) 26, 27

Chisolm v. Georgia, 2 U.S. (2 Dall.) 419 (1793) 16

Donovan v. Priest, 931 S.W.2d 119 (Ark. 1996) 13

Foster v. Love, 522 U.S. 67, 118 S.Ct. 464 (1997) 24

Gravel v. United States, 408 U.S. 606 (1972) 27, 28

Hawke v Smith, 253 U.S. 221 (1920) 18, 19

In re Initiative Petition No. 364, 930 P.2d 186 (Okla. 1996) 13

Kimble v. Swackhamer, 439 U.S. 1385 (1978) 14, 18, 19, 21

League of Women Voters of Maine v. Gwadosky, 966 F.Supp. 52 (D. Me.1997) 13

Leser v. Garnett, 258 U.S. 130 (1922) 18, 19

Matter of Impeachment of Moriarty, 902 S.W.2d 273 (Mo. 1994)
29

Miami Herald Pub. Co., v. Tornillo, 418 U.S. 241 (1974) 26

Miller v. Moore, 169 F.3d 1119 (8th Cir. 1999) 11, 14, 19

Morrissey v. State of Colorado, 951 P.2d 911 (Colo. 1998) 13

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244 (1998) 25

Simpson v. Cenarrusa, 944 P.2d 1372 (Idaho 1997) 13, 18, 19

Stanley v. Georgia, 394 U.S. 557 (1969) 25

Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986)
24

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)
20, 21, 24, 26, 27

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). 22-23

U.S. v. Helstoski, 442 U.S. 477 (1979) 28, 29

U.S. v. Johnson, 337 F.2d 180 (4th Cir. 1964), aff'd., 383 U.S. 169 (1966) 28

Wooley v. Maynard, 430 U.S. 705 (1977) 26

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I 3, 25, 26

U.S. Const. art. 1, § 2, Cl. 2 2, 11, 22

U.S. Const. art. 1, § 3, Cl. 3 2, 22

U.S. Const. art. 1, § 4, Cl. 1 2, 24

U.S. Const. art. 1, § 6, Cl. 1 2

U.S. Const. art. V 3, 10-14, 18, 19, 21, 22

Mo. Const. art. VIII, § 15 3, 8-11, 18-28

Mo. Const. art. VIII, § 16 3, 8, 9, 11

Mo. Const. art. VIII, § 17 4, 8-10, 25, 29

Mo. Const. art. VIII, § 18 5, 8-10, 29

Mo. Const. art. VIII, § 19 6, 8-10, 29

Mo. Const. art. VIII, § 20 7-9

Mo. Const. art. VIII, § 21 8, 9

Mo. Const. art. VIII, § 22 8, 9

Mo. Const. preamble 3

STATUTES

28 U.S.C. § 1254 (1) (1999) 2

28 U.S.C. § 1291 10

28 U.S.C. § 1331 10

42 U.S.C. § 1983 9

OTHER AUTHORITIES

Kris W. Kobach, May "We The People" Speak? The Forgotten Role of Constituent Instructions in Amending The Constitution, 33 U.C. Davis L. Rev. 1 (forthcoming Dec. 1999) 15-18

Official Manual of the State of Missouri 1997-1998, (Jim Grebing ed. 1997) 11, 20

Statement 43 Cong. Rec. E277-02, *E277 (1997) (statement of Rep. Emerson) 21

Supreme Court Rule 14 2

Petitioner Rebecca McDowell Cook, in her official capacity as the Secretary of State of Missouri, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (Appendix ["App."] A1-35), entered on August 31, 1999, is reported at 191 F.3d 911. The opinion of the district court granting Gralike summary judgment (App. A27-35) is reported at 996 F.Supp. 917 (W.D. Mo. 1998) and the two district court orders denying petitioner's motions to dismiss (App. A36-81) are not reported.

JURISDICTION

The court of appeals entered its judgment on August 31, 1999. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254 (1) (1999) and pursuant to Supreme Court Rule 14.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitution of the United States, Article 1, Section 2, Clause 2:

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Constitution of the United States, Article 1, Section 3, Clause 3:

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Constitution of the United States, Article 1, Section 4, Clause 1:

The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time, by Law, make or alter such Regulations, except as to the Places of choosing Senators.

Constitution of the United States, Article 1, Section 6, Clause 1:

The Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Constitution of the United States, Article V:

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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Constitution of the United States, Amendment I:

Congress shall make no law . . . abridging the freedom of speech . . . .

Constitution of the State of Missouri, Article VIII, Section 15:

PREAMBLE. The people of Missouri hereby state our intention that this initiative lead to the adoption of the following U.S. Constitutional Amendment:

Constitution of the State of Missouri, Article VIII, Section 16:

CONGRESSIONAL TERM LIMITS AMENDMENT

(a) No person shall serve in the office of United States Representative for more than three terms, but upon ratification of this amendment no person who has held the office of the United States Representative or who then holds the office shall serve for more than two additional terms.

(b) No person shall serve in the office of United States Senator for more than two terms, but upon ratification of this amendment no person who has held the office of United States Senator or who then holds the office shall serve in the office for more than one additional term.

(c) Any state may enact by state constitutional amendment longer or shorter limits than those specified in section "a" or "b" herein.

(d) This article shall have no time limit within which it must be ratified to become operative upon the ratification of the legislatures of three-fourths of the several States.

Therefore, We, the People of the State of Missouri, have chosen to amend the state constitution to inform voters regarding incumbent and non-incumbent federal candidates' support for the above proposed CONGRESSIONAL TERM LIMITS AMENDMENT.

Constitution of the State of Missouri, Article VIII, Section 17:

VOTER INSTRUCTION ON TERM LIMITS FOR MEMBERS OF CONGRESS

(1) We, the Voters of Missouri, hereby instruct each member of our congressional delegation to use all of his or her delegated powers to pass the Congressional Term Limits Amendment set forth above.

(2) All primary and general election ballots shall have printed the information "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" adjacent to the name of any United States Senator or Representative who:

(a) fails to vote in favor of the proposed Congressional Term Limits Amendment set forth above when brought to a vote or;

(b) fails to second the proposed Congressional Term Limits Amendment set forth above if it lacks for a second before any proceeding of the legislative body or;

(c) fails to propose or otherwise bring to a vote of the full legislative body the proposed Congressional Term Limits Amendment set forth above if it otherwise lacks a legislator who so proposes or brings to a vote of the full legislative body the proposed Congressional Term Limits Amendment set forth above or;

(d) fails to vote in favor of all votes bringing the proposed Congressional Term Limits Amendment set forth above before any committee or subcommittee of the respective house upon which he or she serves or;

(e) fails to reject any attempt to delay, table or otherwise prevent a vote by the full legislative body of the proposed Congressional Term Limits Amendment set forth above or;

(f) fails to vote against any proposed constitutional amendment that would establish longer term limits than those in the proposed Congressional Term Limits Amendment set forth above regardless of any other actions in support of the proposed Congressional Term Limits Amendment set forth above or;

(g) sponsors or cosponsors any proposed constitutional amendment or law that would increase term limits beyond those in the proposed Congressional Term Limits Amendment set forth above, or;

(h) fails to ensure that all votes on Congressional Term Limits are recorded and made available to the public.

(3) The information "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" shall not appear adjacent to the names of incumbent candidates for Congress if the Congressional Term Limits Amendment set forth above is before the states for ratification or has become part of the United States Constitution.

Constitution of the State of Missouri, Article VIII, Section 18:

VOTER INSTRUCTION ON TERM LIMIT PLEDGE FOR NON-INCUMBENTS

(1) Non-incumbent candidates for United States Senator and Representative shall be given an opportunity to take a "Term Limit" pledge regarding "Term Limits" each time they file to run for such office. Those who decline to take the "Term Limits" pledge shall have the information "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS" printed adjacent to their name on every primary and general election ballot.

(2) The "Term Limits" pledge shall be offered to non-incumbent candidates for United States Senator and Representative until a Constitutional Amendment which limits the number of terms of United States Senators to no more than two and United States Representatives to no more than three shall have become part of our United States Constitution.

(3) The "Term Limits" pledge that each non-incumbent candidate, set forth above, shall be offered is as follows:

I support term limits and pledge to use all my legislative powers to enact the proposed Constitutional Amendment set forth in the Term Limits Act of 1996. If elected, I pledge to vote in such a way that the designation "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" will not appear adjacent to my name.

Constitution of the State of Missouri, Article VIII, Section 19:

DESIGNATION

(1) The Secretary of State shall be responsible to make an accurate determination as to whether a candidate for the federal legislature shall have placed adjacent to his or her name on the election ballot the information "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" or "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS."

(2) The Secretary of State shall consider timely submitted public comments prior to making the determination required in subsection (1) of this section and may rely on such comments and any information submitted by the candidates in making the determination required in subsection (1).

(3) The Secretary of State, in accordance with subsection (1) of this section shall determine and declare what information, if any, shall appear adjacent to the names of each incumbent federal legislator if he or she was to be a candidate in the next election. This determination and declaration shall be made in a fashion necessary to ensure the orderly printing of primary and general election ballots with allowance made for all legal action provided in section (5) and (6) below, and shall be based upon each member of Congress's action during their current term of office and any action taken in any concluded term, if such action was taken after the determination and declaration was made by the Secretary of State in a previous election.

(4) The Secretary of State shall determine and declare what information, if any, will appear adjacent to the names of non-incumbent candidates for the federal legislature, not later than five (5) business days after the deadline for filing for the office.

(5) If the Secretary of State makes the determination that the information "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" or "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS" shall not be placed on the ballot adjacent to the name of a candidate for the federal legislature, any elector may appeal such decision within five (5) business days to the Missouri Supreme Court as an original action or shall waive any right to appeal such decision; in which case the burden of proof shall be upon the Secretary of State to demonstrate by clear and convincing evidence that the candidate has met the requirements set forth in the Act and therefore should not have the information "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" or "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS" printed on the ballot adjacent to the candidate's name.

(6) If the Secretary of State determines that the information "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" or "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS" shall be placed on the ballot adjacent to a candidate's name, the candidate may appeal such decision within five (5) business days to the Missouri Supreme Court as an original action or shall waive any right to appeal such decision; in which case the burden of proof shall be upon the candidate to demonstrate by clear and convincing evidence that he or she should not have the information "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" or "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS" printed on the ballot adjacent to the candidate's name.

(7) The Supreme Court shall hear the appeal provided for in subsection (5) and issue a decision within 60 days. The Supreme Court shall hear the appeal provided for in subsection (6) and issue a decision not later than 61 days before the date of the election.

Constitution of the State of Missouri, Article VIII, Section 20:

AUTOMATIC REPEAL

At such time as the Congressional Term Limits Amendment set forth above has become part of the U.S. Constitution, section 15 through section 22 of this Article automatically shall be repealed.

Constitution of the State of Missouri, Article VIII, Section 21:

JURISDICTION

Any legal challenge to this Amendment shall be filed as an original action before the Supreme Court of this State.

Constitution of the State of Missouri, Article VIII, Section 22:

SEVERABILITY

If any portion, clause, or phrase of this Amendment is, for any reason, held to be invalid or unconstitutional by a court of competent jurisdiction, the remaining portions, clauses, and phrases shall not be affected, but shall remain in full force and effect.

STATEMENT OF THE CASE

This case concerns an opinion by a circuit court concluding that the Constitution prohibits citizens from communicating their opinion to federal legislators on prospective constitutional amendments and further prohibits the citizens from communicating on the ballot to voters about the behavior of candidates for federal office. While the prospective constitutional amendment at issue involved term limits, this case is not about term limits. Rather, we are concerned here with the right of the people to communicate.

On November 5, 1996, Missouri's voters passed a ballot measure amending Article VIII of the Missouri Constitution by adding new sections 15 through 22. The people themselves proposed the measure by initiative petition.

By amending Article VIII, the people of Missouri called on their elected representatives to enact an amendment to the Constitution of the United States placing limits on the number of terms that individuals could serve in Congress. See Mo. Const. art. VIII, §§ 15 & 16. In section 17 of Article VIII, the voters instructed the members of Missouri's Congressional delegation to use their powers to pass the Congressional Term Limits Amendment included in Article VIII, § 16. The people provided that any member of Congress who failed to engage in eight specified behaviors would have the phrase "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" printed next to his or her name on subsequent primary or general election ballots. Art. VIII, § 17(2)(a-g).

In Article VIII, section 18, the people offered all non-incumbent candidates for Congress the opportunity to pledge support for the term limits amendment set forth in Article VIII, § 16. The pledge was not mandatory, and a non-incumbent candidate's silence in the face of the opportunity to take the pledge would not prevent the candidate from being on the ballot. Rather, if a candidate responded to the opportunity with silence or affirmative declination, the phrase "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS" would be printed adjacent to the candidate's name on the primary and general election ballots.

The remaining provisions were procedures for the proper implementation of Article VIII. In Article VIII, section 19, the people gave Missouri's Secretary of State the ministerial task of assessing whether the people would be informed about a candidate's behavior. Section 20 authorized an automatic repeal of Article VIII, sections 15-22, when the Congressional Term Limits Amendment in section 16 became a part of the United States Constitution. Article VIII, section 21 grants the Missouri Supreme Court original jurisdiction to hear any challenges to Article VIII. And Article VIII, section 22 contains a severability clause which, in the event any provision of Article VIII were found to be unconstitutional, would sever the unconstitutional provision from the remainder of the Article.

On December 11, 1996, Donald Gralike filed suit pursuant to 42 U.S.C. § 1983 in the United States District Court for the Western District of Missouri. Gralike named as a defendant the Missouri Secretary of State, Rebecca McDowell Cook, in her official capacity. In his Complaint, Gralike challenged the constitutionality of Article VIII. Thus, the district court had jurisdiction over the suit pursuant to 28 U.S.C. § 1331 because the suit raised a federal question.

After denying petitioner's two motions to dismiss (App. A36-81), the district court granted Gralike summary judgment on February 18, 1998. In its Order, the district court concluded Article VIII: (1) added qualifications for Congress members in violation of the Qualifications Clauses by commenting on the members performance; (2) violated Gralike's first amendment right to free speech by commenting on either the members statements, actions or silence; and (3) usurped Congress's Article V power to amend the Constitution by allowing the people to propose a constitutional amendment. App. A27-35. In response, Cook filed a timely notice of appeal.

On August 31, 1999, the United States Court of Appeals for the Eighth Circuit affirmed the district court, exercising jurisdiction pursuant to 28 U.S.C. § 1291. The majority agreed with the district court and concluded Article VIII: (1) added qualifications for Congress members in violation of the Qualifications Clauses by commenting on the members performance; (2) violated Gralike's first amendment right to free speech by commenting on either the members statements, actions or silence; and (3) usurped Congress's Article V power to amend the Constitution by allowing the people to propose a constitutional amendment. App. A14-15. The court of appeals also reached an issue not raised by either party. It determined that Article VIII violated the Speech and Debate Clause of the Constitution by allowing the citizenry to comment on Congress members performance. App. A14-15.

Judge Hansen concurred in part and dissented in part from the majority's holding. He believed the court of appeals should have found Article VIII, §§ 17, 18 and 19 unconstitutional but left the remaining portions of Article VIII untouched, similar to an earlier panel decision in Miller v. Moore, 169 F.3d 1119 (8th Cir. 1999). The judge stated §§ 15 and 16 were only advisory, and thus constitutionally sound. Specifically, Judge Hansen stated he "believed the people of Missouri indeed have the absolute right under Article V to propose in a public pronouncement an addition to or an alteration of the qualifications for congressional service found in Article I." App. A23-26. The judge continued:

In fact, "We the People" have at least as important a role in the process of amending the Constitution as they did in creating it. It was, after all, the "people" who forced the first ten amendments to be adopted. As the court correctly points out, the people have no formal role in the amendment procedures set out in Article V. However, the people play a crucial, substantive role in the amendment process by bringing political pressure to bear--through political speech, mobilization, and other activities--on those who under the Constitution do control the formal procedures.

App. A24-25.

REASONS FOR GRANTING THIS WRIT

On November 5, 1996, the people of Missouri went to the polls and informed their members of Congress that it was time to amend the Constitution. The people relayed this information by approving an initiative petition placing an "instruct and inform" provision in the Missouri Constitution.⁽¹⁾ But despite the popular will, the United States Court of Appeals for the Eighth Circuit nullified the actions of the citizens of Missouri, determining that the citizens could not advise their elected officials about the need for proposing and ratifying a particular constitutional amendment.

The issue of whether the voters may instruct their Congressional delegation to pass a constitutional amendment and advise their fellow citizens of their representative's behavior regarding the amendment has not arisen in the Eighth Circuit alone. Instead, it has been heard, and decided incorrectly, by Courts across the nation, albeit for differing reasons.

With regard to that portion of the Eighth Circuit's opinion that finds Missourians violated Article V by instructing their congressional delegation to support a particular constitutional amendment, this Court should grant the petition because there is a conflict between the Eighth Circuit's opinion in this case and the Supreme Court of Idaho, an opinion authored by then Justice Rehnquist and an earlier opinion of the Eighth Circuit. With regard to the remainder of the court's holding that Missourians violated Article V, the Qualifications Clauses, the Speech and Debate Clause and the First Amendment by communicating on the ballot about the behavior of candidates for federal office regarding a proposed constitutional amendment, the Court should grant the petition because of the importance of the issues involved; i.e., the citizens' right to communicate and the misapplication of the Constitution to prohibit that communication. It is of grave constitutional concern to the citizenry that so many courts have construed the Constitution to prohibit truthful public speech for the protection of a portion of the candidates for federal office.

Court decisions that interfere with the public's right to communicate occurring at the behest of the electoral process not only frustrate the public will, in this context they undermine America's social contract that provides for the citizenry to determine the form of their government. No provision of the Constitution mandated the Eighth Circuit's interference with the public's right to speak. Unless this Court intervenes, the meaning of various provisions of the Constitution will continue to be perverted and the estrangement of the people from the government they once ordained will continue to be exacerbated. The Court should grant the petition for a writ of certiorari to preserve the integrity of the Constitution and secure the liberties of the American people.

I. A CONFLICT EXISTS BETWEEN THE LOWER COURTS AS TO WHETHER ARTICLE V PROHIBITS CITIZENS FROM ADVISING FELLOW VOTERS AND THEIR ELECTED REPRESENTATIVES ON A PROSPECTIVE AMENDMENT, A CONFLICT THAT THE HISTORY OF ARTICLE V RESOLVES IN FAVOR OF CITIZEN PARTICIPATION.

A panel of the Eighth Circuit held that the people of Missouri could not instruct their elected representatives to use their powers to propose a particular amendment to the Constitution because such an instruction would usurp Congress's Article V power. There exists conflicts between many federal courts and the Supreme Court of Idaho, a prior opinion of the Eighth Circuit and the opinion of the Chief Justice on this issue. Compare Barker v. Hazeltine, 3 F.Supp.2d 1088 (D. S.D. 1998) (invalidated instruct and inform provision on Article V, First Amendment, Speech and Debate, and Due Process grounds); League of Women Voters of Maine v. Gwadosky, 966 F.Supp. 52 (D. Me.1997) (invalidated instruct and inform provision on Article V grounds); Donovan v. Priest, 931 S.W.2d 119 (Ark. 1996) (instruct and inform initiative invalidated on Article V and state constitutional law grounds);⁽²⁾ Bramberg v. Jones, 978 P.2d 1240 (Cal. 1999) (invalidated instruct and inform provision on Article V and state initiative law grounds); Morrissey v. State of Colorado, 951 P.2d 911 (Colo. 1998) (invalidated instruct and inform provision on Article V grounds) and In re Initiative Petition No. 364, 930 P.2d 186 (Okla. 1996) (invalidated instruct and inform provisions on Article V and state constitutional grounds) with Simpson v. Cenarrusa, 944 P.2d 1372 (Idaho 1997) (invalidated instruct and inform provision on First Amendment, Speech and Debate Clause, and state constitutional grounds, but expressly held that the instruct provision did not violate Article V); Miller v. Moore, 169 F.3d 1119 (8th Cir. 1999) (invalidated only the inform portion of Nebraska's instruct and inform provision on Article V grounds) and Kimble v. Swackhamer, 439 U.S. 1385 (1978) (Rehnquist, J., sitting as Circuit Justice) (Article V does not prohibit citizens from advising their legislators on a prospective constitutional amendment).

In reaching the conclusion that the Constitution prohibited the people of Missouri from instructing their elected representatives to propose an amendment to the Constitution (App. A22, n. 12) the Eighth Circuit opined that Article V "specifically delegates the amendment process to the legislative bodies, not the voters." App. A20. While Article V delegates the functions of official amendment proposal and passage to the legislative bodies, the Constitution does not thereby constrain the citizenry to silence during the constitutional drama.

The Court's holding elevates legislators to the level of paternalistic aristocrats and simultaneously demeans them as irresolute souls incapable of withstanding the meaningless chatter of their lesser citizens.⁽³⁾ Apparently, according to the Eighth Circuit, the founders so feared citizen influence over hapless elected officials, they wrote Article V for the purpose of insulating overly-responsive legislators from the presumptively unsound influences of the governed. This ruling is not only anti-democratic, it ignores the pre- and post- ratification history of the Constitution.

A. The History of Citizen Instructions.

Throughout the history of the United States, the people have instructed their representatives on the form of government they desired. The delegates to the Second Continental Congress from the states of North Carolina, Virginia, and New Jersey were all under instructions from their respective home colonies to vote for independence.⁽⁴⁾ In fact, the delegates from New York considered their instructions to be so important that they read them aloud before the Continental Congress.⁽⁵⁾

Even more compelling evidence of the Framer's intention to allow citizens to instruct their delegates about prospective constitutional amendments is the fact that several Framers were acting pursuant to instructions when they drafted the Constitution itself. For example, Delaware's delegates to the Constitutional Convention were acting under specific instructions to preserve the Fifth Article of the Articles of Confederation, which provided each state would receive a single vote in Congress.⁽⁶⁾

Further, the statements of the framers themselves indicate that they understood the people to be able to instruct their delegates to Congress. In reference to a possible, future increase in the size of Congress, Alexander Hamilton commented:

"[i]f the general voice of the people be for an increase, it must undoubtedly take place. They have it in their power to instruct their representatives; and the State Legislators, which appoint the Senators, may enjoin it also upon them."⁽⁷⁾

Additionally, in reference to the amendment process itself, John Dickinson, delegate from Delaware, stated:

[f]or this purpose, it may perhaps be advisable, for every state, as it sees occasion, to form with the utmost deliberation, drafts of alterations [to the Constitution] respectively required by them, and to enjoin their representatives, to employ every proper method to obtain ratification.⁽⁸⁾

Several states also instructed their representatives to the first Congress on how to vote on the Bill of Rights and the Eleventh Amendment. Congressmen from Massachusetts, New Hampshire, New York, Rhode Island, and South Carolina all arrived at the first Congress bearing instructions as to their vote on the Bill of Rights.⁽⁹⁾ And in the wake of Chisolm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), the legislatures of Massachusetts, Virginia, Connecticut and North Carolina instructed their Senators to seek a constitutional amendment that would deny federal courts jurisdiction over suits by citizens against states.⁽¹⁰⁾

This tradition of instruction continued into the Twentieth Century. In 1928, the voters of Massachusetts, by initiative, instructed their State Senators to repeal the Eighteenth Amendment.⁽¹¹⁾ And in 1933, the state of Oregon held a statewide referendum to determine how the state's delegates to the statewide convention⁽¹²⁾ should vote on the ratification of the Twenty-First amendment. The people voted in favor of ratification and, seventeen days later, the state convention ratified the Twenty-First Amendment.⁽¹³⁾ Accordingly, the intent of the Framers and the weight of history demonstrate the constitutionality of citizen instructions to their representatives in Congress regarding how vote on a prospective amendment.⁽¹⁴⁾

B. Conflicting Opinions and the Misinterpretation of the Constitution.

Most courts that have analyzed instruct and inform provisions have failed to discern or simply ignored the history of Article V, erroneously relying on Hawke v Smith, 253 U.S. 221 (1920); and Leser v. Garnett, 258 U.S. 130 (1922). See Gralike, App. A19-22. But neither case is relevant to the issue at hand, a fact noted by Chief Justice Rehnquest in Kimble. See 439 U.S. at 1387 (applicant's reliance on Court's decision in Hawke and Leser "is obviously misplaced").

In Hawke, the Court struck down on Article V grounds a provision of the Ohio Constitution that gave the people final authority to approve or reject an amendment to the Constitution. In Leser, the Court again held that the actual power to ratify an amendment may not be altered by the people of a state, but the Court in Leser made no mention of the citizens supposed inability to instruct their legislators.⁽¹⁵⁾ 258 U.S. 130. While both these cases dealt with a direct attempt to modify the ratification process, Missouri's Article VIII does no such thing. Rather, it informs the Missouri delegation to Congress of their constituent's wishes. It is still the Senators and Representatives who will cast the vote. Accordingly, Missouri's Article VIII in no way alters the process established by Article V.

Nevertheless, most courts evaluating instruct and inform provisions have determined that they violate Article V. Fortunately, some courts have conducted a more exacting analysis. In Simpson, the Idaho Supreme Court conducted an Article V review of legislation instructing Idaho's elected representatives to support term limits. The Court found no Article V violation because the legislators, when merely directed to support term limits, "were not compelled to support the proposed amendment." 944 P.2d at 1376. Hence, the Article V process was undisturbed.

Similarly, in Kimble, then Justice Rehnquist held that it was constitutional for the citizens of Nevada to advise their legislators how to vote on the Equal Rights Amendment. 439 U.S. 1385. He said, "I would be most disinclined to read either Hawke, . . . Leser . . . or Art. V as ruling out communication between members of the legislature and their constituents." Id. at 1387-88. He further noted that, despite the referendum, the legislators could still vote as they saw fit, thus the referendum was non-binding. Id. at 1387. See also Miller, 169 F.3d at 1126 and Gralike, (Hanson, J., dissenting), App. A23-26, (determining that the citizens could constitutionally express their opinions on prospective constitutional amendments by way of initiative petitions).

The Eighth Circuit Court of Appeals attempted to distinguish Kimble by asserting that Missouri's Article VIII is "far more" than the non-binding referendum found in Kimble. App. A21. This truism is not a substitute for applying the principles articulated in Kimble to the facts of the case. According to the Chief Justice, only those matters that change the actual process set out in Article V are of constitutional significance. That the Nevada legislature was likely to delay a vote on the amendment until after the non-binding referendum did not alter the constitutional process and was "not a constitutionally cognizable grievance." Id. at 1387. Not surprisingly, following the vote, the Nevada legislature complied with their citizen's wishes. But political responsiveness is not indicative of a constitutional violation.

Like Kimble, Missouri's Article VIII does not run afoul of Article V because it does nothing to change the Article V process for amendment ratification. But the Eighth Circuit found that Missouri's Article VIII violated Article V because it bound legislators to vote in favor of a constitutional amendment. App. A21-22. In reaching this conclusion, the Eighth Circuit made two unsubstantiated assumptions;⁽¹⁶⁾ one, that the ballot information would operate as a handicap on candidates and, two, that candidates would ignore their own principled opinion despite the constitutional significance of their behavior to avoid the supposedly coercive impact of the ballot information. App. A21-22. Such assumptions are antithetical to our constitutional jurisprudence.

There is a dearth of evidence on the issue of handicap and respondent bore the burden of proof. That 57% of Missouri's electorate favored the term limits proposal at the 1996 election does not turn the ballot information into a penalty. The voters in subsequent years might have a different political view. In the twenty-eight counties that failed to support the amendment of Article VIII,⁽¹⁷⁾ the ballot information may be a benefit. Truthful words cannot properly be denominated a penalty when their supposed penal nature is entirely dependent on the potentially changing opinions of the electorate. For example, in many locales it is reasonable to assume a particular party designation may have the "likely effect" of handicapping a candidate. But it is constitutional to require party candidates to run with their party designations on the ballot. Respondent never demonstrated a difference of constitutional significance between compulsory party designation and the ballot information Missourians now seek to put on the ballot.⁽¹⁸⁾

The Eighth Circuit's second assumption, unstated but implicit and necessary to find Article VIII binding, is far more insidious. No judge charged with the obligation to preserve the Constitution should assume that members of Congress are craven, office-seekers who will disregard their principles and the constitutional significance of their behavior, voting only for constitutional enactments they perceive will enhance their likelihood of re-election.⁽¹⁹⁾

The Eighth Circuit's assumptions were false. Article VIII is by its terms non-binding; it does not alter the process established by Article V. While it does advise the members of Congress how the people want them to vote, they "may vote for or against ratification, or refrain from voting on ratification at all, without regard to the [people's instruction]." Kimble, 439 U.S. at 1387. Nothing in Article V prohibits Missourians from communicating with one another on the ballot. In fact, while this Court has found that the ballot can be used "to communicate information," Timmons, 520 U.S. at 363, the same cannot be said with any degree of certaintity after the Eighth Circuit's chilling decision.

The Eighth Circuit erred in finding that Missouri's Article VIII violated Article V. It was an error that ignored the intent of the Framers, the history surrounding the ratification of our Constitution, the opinion of the Chief Justice of this Court and the right of the people to participate meaningfully in their government. It is an error that can only be corrected by this Court.

II. THE EIGHTH CIRCUIT SERIOUSLY MIS-CONSTRUED THE CONSTITUTION IN HOLDING THAT A MERE COMMENT ON THE SILENCE OR RECORD OF A CANDIDATE FOR CONGRESS CREATED A NEW QUALIFICATION FOR SERVICE IN CONGRESS.

In its opinion striking down Article VIII of the Missouri Constitution, the Eighth Circuit found that allowing the people to publicly comment on a congressional candidate's behavior violated the Qualifications Clauses. App. A15-19. But there is no legal basis for the Eighth Circuit's opinion because this information neither directly nor indirectly places an additional qualification on members of Congress. This Court should grant the petition to correct this error and forestall its far-reaching implications.

The United States Constitution restricts who may appear on a ballot as a candidate for Congress through the Qualification Clauses. U.S. Const., art. I, §§ 2 & 3. The restrictions found in the Qualifications Clauses are fixed and exclusive. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 798 (1995). However, Missouri does not place an additional qualification on service in Congress; all Missourians over the age of twenty-five who have been U.S. citizens for more than seven years may still be elected to the House of Representatives and may still appear on the ballot.

Of course, Missourians cannot indirectly place an additional qualification on a candidate for Congress. U.S. Term Limits, 514 U.S. at 836. But Article VIII places no indirect qualifications on candidates. In U.S. Term Limits, the Court held that a state amendment that disqualifies a class of candidates and has the sole purpose of creating additional qualifications indirectly violates the Constitution. Id. Thus, U.S. Term Limits requires both an electoral injury and an intent to create additional qualifications for a finding of unconstitutionality. Article VIII does neither.

The Eighth Circuit simply assumed that having the phrase "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS" appearing by a candidate's name would have the "likely effect" of handicapping the candidate. As discussed above, the Eighth Circuit's assumption is not supported by any facts in the record. And the mere fact that some voter "might," in the opinion of the Eighth Circuit, be affected by such language does not create a constitutionally impermissible handicap.

Further, it was not the people of Missouri's intent to create an additional qualification for Congress when they passed Article VIII. Instead, their intent was to amend the Constitution and for that amendment to create a limitation on congressional service. In fact, Article VIII, section 15, specifically states that the intent of Article VIII is to amend the Constitution. Despite this, the Eighth Circuit concluded that the intent of people of Missouri was to add an additional qualification for service in Congress. App. A18-19. While the desired amendment would alter the Constitution to place a limitation on members of Congress, that fact does not alter the people's purpose. The people's purpose was to effect the amendment of the Constitution⁽²⁰⁾ and construing the same to run afoul of the Qualifications Clauses has a broad range of significant adverse consequences. Suppose, for example, that the citizens of a state directed an executive office holder to prepare a ballot information sheet containing the voting records and absentee percentages of candidates, directing that the same be available at polling places. Would candidates for federal office be able to challenge the ballot information sheet, to the extent they felt historical facts portray them in a negative light, asserting that the communication created an additional qualification for office? While nothing in the Constitution mandates such a result, nothing in the Eighth Circuit's opinion precludes it.

Furthermore, the Eighth Circuit's conclusion that Missouri's Article VIII violates the Qualifications Clauses utterly ignores the Constitution's affirmative grant of power to the states. The Constitution grants states "broad power to prescribe the 'Time, Place and Manner of holding elections for Senators and Representatives.'" Timmons, 520 U.S. at 358, quoting from Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217 (1986). All Article VIII of the Missouri Constitution does is disclose whether candidates for Congress performed as their constituents wished or remained silent when offered an opportunity to support term limits. Congress has enacted no law prohibiting the people of a state from adopting this manner of conducting an election and the Constitution contains no prohibition on this activity. Hence, the Constitution's default provision, Art . I, § 4, cl. 1, which "invests the States with responsibility for the mechanics of congressional elections," controls. Foster v. Love, 522 U.S. 67, 118 S.Ct. 464, 466 (1997).

The Eighth Circuit's failure to recognize that Missourians have successfully walked a constitutional tightrope was error. It was error that deprived the people of their voice in government and that took from the people an opportunity to control their own government. It is an error that only this Court can correct.

III. MISSOURIANS DID NOT VIOLATE THE FIRST AMENDMENT BY COMMUNICATING ABOUT THE ACTUAL OR DESIRED CONDUCT OF CANDIDATES FOR FEDERAL OFFICE AND THE EIGHTH CIRCUIT'S CONCLUSION THAT THEY DID CREATES A DANGEROUS PRECEDENT.

The Eighth Circuit found Missouri's Article VIII violative of the First Amendment without even conducting a complete analysis; lumping the regulations for incumbents in with those for non-incumbents. By this flawed analysis, the Eighth Circuit deprived the people of their own right to speak without even balancing the people's right against that of the candidates. This Court should grant the petition for a writ of certiorari so that people's voice can be restored.

The people's right to know and the related right to receive information are recognized by the Supreme Court as fundamental tenets of the First Amendment. Stanley v. Georgia, 394 U.S. 557, 564 (1969) (Constitution protects rights to receive information and ideas). In an attempt to transform this right from an ideal into a reality, the citizens of Missouri requested information about their Congressional candidates' position on term limits. And by doing so, the people did not violate the First Amendment; instead they exercised their own First Amendment rights. Furthermore, they exercised these rights in a way that did not limit the speech of the candidates.

The First Amendment to the United States Constitution states that "[C]ongress shall make no law . . . abridging the freedom of speech . . .." U.S. Const. amend. I. However, freedom of speech does not mean that a person can say (or keep from saying) anything. And in the non-criminal context, this Court has repeatedly held that it is appropriate to comment on another's silence, and even draw an inference from another's silence. See e.g., Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 1252-1253 (1998); Baxter v. Palmigiano, 425 U.S. 308, 318-319 (1976). Insofar as Article VIII, section 17 applies to non-incumbents, that is all that occurs. The people comment on the candidate's failure to take a pledge to support a term limits amendment.⁽²¹⁾ Mo. Const. art. VIII, § 17. They do not require the candidate to take the pledge; nor do they punish the candidate for failing to take the pledge. The people simply observe that a candidate did not take the pledge. And that is constitutionally sound.

Instead of recognizing the constitutionality of Article VIII, the Eighth Circuit relied on Wooley v. Maynard, 430 U.S. 705 (1977); and Miami Herald Pub. Co., v. Tornillo, 418 U.S. 241 (1974), for the proposition that the government may not compel someone to speak. Concededly, the Court did find compelled speech to be unconstitutional in these two cases, but these cases are inapplicable to an analysis of Article VIII because it does not compel any speech. In both Wooley and Miami Herald, the government compelled speech under threat of criminal prosecution. Article VIII does no such thing. Instead, the people simply comment on the silence or behavior of their congressional candidates. The peoples' communication is not punishment.⁽²²⁾ Accordingly, the court of appeals reliance on Wooley and Miami Herald was misplaced.

Further, once the court of appeals erroneously concluded that Article VIII abridged speech, it then failed to apply the proper test to determine whether the Article is constitutional. Under Timmons, there is no one test for determining whether an election law, like Article VIII, violates the First Amendment. 520 U.S. at 358-59 (citing Burdick v. Takushi, 504 U.S. 428 (1992)). Rather, the level of scrutiny is dependent on the burden the election law places on the plaintiff's rights. Timmons, 520 U.S. at 358-59. But instead of making this assessment, the Eighth Circuit committed the same error it committed in Timmons itself: it simply assumed that strict scrutiny applied. Gralike, App. A11-14. The Eighth Circuit simply never made the assessment about the First Amendment burden articulated in Timmons and Burdick.⁽²³⁾ Thus, it failed to apply the test mandated by this Court.

The Eighth Circuit should have recognized that Article VIII compels nothing and, hence, avoids the strictures of the free speech clause. And failing that, it should have applied the proper test to determine whether this election regulation was unconstitutional. The Eighth Circuit's failure to do either was error, an error that ignored the language of Article VIII, that deprived the people of their right to speak about the behavior of political candidates and an error that can only be corrected by this Court.

IV. MISSOURIANS DID NOT VIOLATE THE SPEECH AND DEBATE CLAUSE BY COMMENTING ON THE BEHAVIOR OF MEMBERS OF CONGRESS WHO WERE RUNNING FOR RE-ELECTION AND THE EIGHTH CIRCUIT'S CONCLUSION TO THE CONTRARY HAS FAR-REACHING, ADVERSE CONSEQUENCES.

The Eighth Circuit essentially held that the Speech and Debate Clause of the U.S. Constitution is violated when citizens comment on their Congressional representative's behavior. App. A14-15. This argument is both anti-democratic and absurd. Taken to its logical conclusion, the Eighth Circuit's opinion would lead to the creation of an Congressional aristocracy, immune from the criticisms of we simple voters.

While the Eighth Circuit was correct in citing to Gravel v. United States, 408 U.S. 606 (1972), for an understanding of the Speech and Debate Clause, the court incompletely quoted Gravel to the detriment of its analysis concerning Missouri's Article VIII. In Gravel, this Court acknowledged that "[t]he Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process." Id. at 616 (emphasis added).⁽²⁴⁾ In other words, the Speech and Debate Clause was designed to keep Congress people from being criminally prosecuted for the statements they make on the floor of Congress. See U.S. v. Helstoski, 442 U.S. 477, 488 (1979) ("the Speech or Debate Clause was designed to preclude prosecution of Members for legislative acts"). Of course, the protections of the Speech and Debate Clause extend to civil prosecutions as well. U.S. v. Johnson, 337 F.2d 180, 190 (4th Cir. 1964), aff'd., 383 U.S. 169 (1966). But the information placed on the ballot by Missourians pursuant to the terms of Article VIII is not the constitutional equivalent of a prohibited criminal or civil prosecution or feared executive action. It is, rather, protected public commentary on the behavior of congressional candidates. The Speech and Debate Clause was never intended to insulate politicians from the political consequences of their behavior imposed by their constituents.

By the misuse of ellipses, the appellate court's rationale compels a conclusion that the Speech and Debate Clause prohibits anyone from commenting on a Senator or Representative's actions while on the floor of Congress. The Eighth Circuit ignored the purpose of the Speech and Debate Clause when reaching its conclusion, i.e. to allow Senators and Representatives to debate the issues of the day without fear of prosecution by the Executive Branch. Gravel, 408 U.S. at 616. Article VIII neither involves any real discretionary action on the part of a member of the Executive Branch, nor does it involve a prosecution. All it involves is the comment by the people on the behavior of a candidate for Congress. And that is not only constitutional, it is commendable.

While the Eighth Circuit was correct in noting that Article VIII did involve some executive action, the executive action at issue is merely ministerial. It is the Secretary of State who places the information on the ballot. But the people have given the Secretary specific guidelines that she must follow when making the decision whether to place the information on the ballot. The Secretary must place ballot information next to an incumbent candidate's name if, and only if, the candidate meets one of criteria specifically outlined in Article VIII, § 17(2)(a-g); or if, and only if, a non-incumbent candidate refuses to pledge to support term limits. Mo. Const. art. VIII, § 18, cl. 1. In neither case is the Secretary afforded discretion in making her decision. If a candidate fails to follow the instructions of the voters or fails to pledge to follow the voter's instructions, then the Secretary must place the corresponding information next to the candidate's name. But if a candidate follows the voters instructions or pledges to follow them, the Secretary is prohibited from placing a comment next to the candidate's name. The Secretary's determination is directly reviewable by the Missouri Supreme Court. Article VIII, § 19. Thus, under Article VIII, the Secretary of State applies the check list the people have given her. No significant executive action is undertaken. Rather, the will of the people is carried out by their agent, the Secretary of State. See also Matter of Impeachment of Moriarty, 902 S.W.2d 273, 277 (Mo. 1994) (the vast majority of the duties assumed by the Missouri Secretary of State are ministerial, especially in the area of elections).

Even more fundamentally, Article VIII does not involve a prosecution of members of Congress for their legislative acts. Instead, Article VIII simply involves the people informing themselves about the performance of the candidates for Congress. As Article VIII does not involve any action even remotely approaching a prosecution it does not afoul of the Speech and Debate Clause, which "was designed to preclude prosecution of Members for legislative acts." Helstoski, 442 U.S. at 488.

Despite this, the Eighth Circuit found Article VIII to violate the Speech and Debate Clause. This ruling was in error. It was an error that other courts have already committed, that deprives the people of their voice in government and that only will be corrected if this Court grants the petition for a writ of certiorari.

CONCLUSION

The Eighth Circuit reports that nine states, including Missouri, passed instruct and inform provisions at the November 1996 election. App. A2, n.3. Of those nine, courts have erroneously found the provisions of seven states constitutionally infirm. There are few remaining opportunities for the Court to correct the flaws inherent in these cases; flaws that chill the public's right to communicate and misconstrue the Constitution.

For this reason, along with those stated above, this Court should grant the petition for a writ of certiorari.

Respectfully submitted,

JEREMIAH W. (JAY) NIXON

Attorney General

JAMES R. McADAMS

Chief Counsel for Litigation

Counsel of Record

TINA M. CROW HALCOMB

J. ERIC DURR

Assistant Attorneys General

P.O. Box 899

Jefferson City, MO 65102

(573) 751-3321

Counsel for Petitioner

November, 1999

1.  On the November 5, 1996, ballot, the instruct and inform provision was entitled Constitutional Amendment No. 9. It garnered more than 57% of the popular vote. And it carried 86 of Missouri's 114 counties. The provision also carried St. Louis City -- a city which is not within any county. Official Manual of the State of Missouri 1997-1998, p. 591 (Jim Grebing ed. 1997).

2.    This court denied certiorari. Arkansas Term Limits v. Donavon, 519 U.S. 1149 (1997). However, in Donavon, there were independent state grounds that precluded review. The Arkansas Supreme Court found that the initiative petition that created the instruct and inform provision violated Amendment VII of the Arkansas Constitution. 931 S.W.2d at 371. Here no state law issues preclude review of the Eighth Circuit's decision.

3.  This type of governmental paternalism was best evidenced in Barker, cited in Gralike. App. A2. The district court in Barker found that the amendment process was "to be a deliberate and often difficult task," with the "citizens' role to elect competent state and Congressional legislators who may, in turn, amend the Constitution in accordance with the methods described in Article V." 3 F.Supp.2d at 1092 (citation omitted). Apparently, simple voters were to be seen but not heard.

4.  See Independence in North Carolina (April 12, 1776), reprinted in 5 American Archives, Fourth Series 859, 859 (Peter Force ed., 1844); Records of the Virginia Convention (May 15, 1776), reprinted in 6 American Archives, Fourth Series 1523, 1524 (Peter Force, ed., 1846); Records of the New York Provincial Congress, reprinted in 6 American Archives, Fourth Series 1364, 1364 (Peter Force, ed., 1846); all cited in, Kris W. Kobach, May "We The People" Speak? The Forgotten Role of Constituent Instructions in Amending The Constitution, 33 U.C. Davis L. Rev. 1 (forthcoming Dec. 1999) (manuscript at pp. 44-46, lodged with the Court and on file with the author). In fact, surviving records indicate that the delegates from nine of the thirteen colonies acted pursuant to instructions from home.

5.   Records of the Continental Congress (June 28, 1776), reprinted in 6 American Archives, Fourth Series 1725, 1725 (Peter Force, ed., 1846); cited in, Kobach, May "We The People" Speak? 33 U.C. Davis L. Rev. 1 (manuscript at p. 53).

6.   3 The Records of the Federal Convention of 1787 574-575 (Max Farrand ed., 1966); cited in, Kobach, May "We The People" Speak? 33 U.C. Davis L. Rev. 1 (manuscript at p. 66).

7.  Alexander Hamilton, Statement before the New York Ratifying Convention (June 23, 1788), reprinted in 2 Elliot's Debates, at 252 (Jonathon Elliot ed., 1836) (June 21, 1788); cited in, Kobach, May "We The People" Speak? 33 U.C. Davis L. Rev. 1 (manuscript at pp. 72-73).

8.  John Dickinson, The Letters of Fabius, Pamphlet No. VII (1797), reprinted in Friends of the Constitution: Writings of the "Other" Federalists 1787-1788, at 496 (Colleen A. Sheehan and Gary L. McDowell eds., 1998); cited in, Kobach, May "We The People" Speak? 33 U.C. Davis L. Rev. 1 (manuscript at p. 70).

9.   Kobach, May "We The People" Speak? 33 U.C. Davis L. Rev. 1 (manuscript at p. 76) (citations omitted).

10.   Kobach, May "We The People" Speak? 33 U.C. Davis L. Rev. 1 (manuscript at p. 85) (citations omitted).

11.  See 1929 Mass. Acts 544-52 (tallying votes of senatorial districts); Robert Luce, Legislative Principles: The History and Theory of Lawmaking by Representative Government, at 476-477 (1930); both cited in, Kobach, May "We The People" Speak? 33 U.C. Davis L. Rev. 1 (manuscript at p. 97).

12.  The Twenty-First Amendment, unlike any other amendment to the Constitution, was sent to state-wide conventions, not state legislators, for approval. Kobach, May "We The People" Speak? 33 U.C. Davis L. Rev. 1 (manuscript at p. 100).

13.  1933 Oregon Laws, 2d Special Sess. 10 (1933); cited in, Kobach, May "We The People" Speak? 33 U.C. Davis L. Rev. 1 (manuscript at pp. 100-101).

14.  While the history on the inform provisions is not as developed, the reason for this lack of development is readily apparent: At the time of the Framers, no self-respecting Congressman would remain in Congress after ignoring the instructions of their constituents. Instead, they would simply retire on their own, thus eliminating any need for an inform provision. In fact, two future presidents, John Quincy Adams and John Tyler, actually did retire after ignoring the instructions of their constituents. Richard B. Bernstein & Jerome Agel, Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? at 123 (1993); cited in, Kobach, May "We The People" Speak? 33 U.C. Davis L. Rev. 1 (manuscript at p. 90).

15.  In fact, in the years following the Court's decision in Leser, the citizens of Massachusetts and Oregon did instruct their legislators or delegates how to vote on an amendment. Kobach, May "We The People" Speak? 33 U.C. Davis L. Rev. 1 (manuscript at pp. 97 & 100-101).

16.  This is not the first time the Eighth Circuit has made unfounded assumptions when assessing the validity of an election law. In Timmons v. Twin Cities Area New Party, 520 U.S. 351, 361 (1997); this Court noted that "[t]he Court of Appeals emphasized its belief that, without fusion-based alliances, minor parties cannot thrive. This is a predictive judgment which is by no means self-evident."

17.  Official Manual of the State of Missouri 1997-1998, p. 591 (Jim Grebing ed. 1997).

18.  The Eighth Circuit does criticize the words chosen by Missourians to communicate about the behavior of federal candidates, describing it as language "likely to give (and we believe calculated to give) a negative impression not only of the labeled candidates' views on term limits, but also of his or her commitment and accountability to his or her constituents." App. A9. While it is not insignificant that the Court is so at ease measuring the words chosen by the people to communicate their ideas, it is obvious that the Court paints with too broad a brush. See App. A18, where the Court says that the "labels state that the labeled candidates ignore their constituents' wishes." While the statement to be applied to incumbents ("disregarded voters' instructions on term limits") may have some risk despite its relatively nebulous nature of leaving a negative impression with voters, the statement to be applied to non-incumbents ("declined to pledge to support term limits") is a completely neutral statement of fact regarding a candidate's behavior that embodies no such risk and it is only this later label that could have been applied to respondent. If it was only the language selected by Missourians to communicate their ideas that offends the Constitution, the Eighth Circuit failed in its obligation to so state.

19.  In fact, available evidence is to the contrary. Missouri Representative Jo Ann Emerson announced on the floor of the House that she would depart from the instructions of her constituents. Though Article VIII instructed Rep. Emerson to vote against any term limits proposal of more than six years, she declared that she "w[ould] vote in favor of each and every serious term limits proposal brought before the House," not just the one set forth in Article VIII. Statement 43 Cong. Rec. E277-02, *E277 (1997) (statement of Rep. Emerson). Apparently, Rep. Emerson did not consider the ballot information a significant handicap as she was quite capable of overlooking it or she was guided by her duty to vote her conscience regardless of the consequences.

20.  The Eighth Circuit claims that, as the people of Missouri seek to amend the Constitution to add a limitation on congressional service, their actions run afoul of the Qualifications Clauses because their purpose is the addition of a new qualification. App. A18. The fact that Missourians seek to effectuate this change by amending the Constitution is, apparently, irrelevant. This argument goes too far. It would place a bar on public support for any amendment to the Qualifications Clauses. This simply cannot be. Instead, when assessing the purpose behind the actions of the people, the Court should draw distinction between the purpose of the action, amending the Constitution, and the purpose of the desired amendment, creating a new qualification for service in Congress.

21.  For incumbents, the people simply comment on the incumbent's failure to propose or support a particular term limits amendment. Mo. Const. art. VIII, § 17(2)(a-g). Thus, petitioner's argument that no free speech right of a non-incumbent is being violated can be made with equal force as to incumbents.

22.  In its First Amendment analysis, the Eighth Circuit committed the same error that was prevalent throughout its opinion. The court assumed that the ballot information would be some sort of punishment. The court based this assumption on the feeling that a ballot information would cause voters to not vote for a candidate. However, no evidence on this point was produced and, hence, it is unclear what effect the ballot information would have on any election.

23.  Concededly, in footnote 8 of its opinion, the court of appeals claimed that even under Burdick, strict scrutiny would apply because Article VIII is a content-based and viewpoint-based speech restriction. Gralike, App. A12-13. This is a misinterpretation of Burdick. Under Burdick, a court, when determining the constitutionality of an election law, should look to the "character and magnitude" of the restriction on speech and not its classification. 504 U.S. at 434 (citation omitted). Thus the use of labels such as content-based and viewpoint-based does not effect the analysis. What effects the analysis is the amount of speech restricted, an assessment the Eighth Circuit failed to make.

24.  The underline indicates that portion of this Court's language the Eighth Circuit omitted from its rendition of this Court's holding. App. A15.