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Chapter 7
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TERM LIMITS

A. INTRODUCTION
Federal or state constitutions or statutes may place limits on the number of consecutive (or
nonconsecutive) times a candidate may be reelected to the same office. Such term limits are not
unknown in American law and politics. Indeed, at times there were various informal norms that
certain political offices would be subject to rotation, even without formal term limits. For
example, Abraham Lincoln served only one term in the U.S. House of Representatives in the
1840s due to such an informal agreement. Robert Struble, Jr., House Turnover and the Principle
of Rotation, 94 POL. SCI. Q. 649 (1979-80) (discussing such norms in the U.S. House of
Representatives in the nineteenth century). Until recently, most formal limits were restricted to
executive offices. Most famously, the Twenty-Second Amendment to the U.S. Constitution
limits Presidents to serving a maximum of two terms. The Amendment was adopted in 1951 after
Franklin Roosevelt was elected four times, breaking the informal two-term tradition set by
President Washington. Forty states place various term limits on their governors, and thirty-five
percent of major cities place term limits on their mayors. Einer Elhauge, Are Term Limits
Undemocratic?, 64 U. CHI. L. REV. 83, 87 n.9 (1997).
Support for term limits grew and became more controversial in the 1990s, when twenty-four
states adopted limits for state legislators and some term-limited their Members of Congress as
well. What accounted for the term-limit phenomenon in that decade? Support for term limits has
always been supported by the notion that persons continually reelected to the same office
unfairly or inappropriately aggrandize political power. Accordingly, the advantages of
mandatory rotations are thought by some to outweigh the greater experience and seniority
possessed by long-serving representatives, as well as the right of voters to elect whom they want
to office. This notion gained particular currency in the past several decades for members of
Congress and state legislators, who in that period enjoyed little turnover and high reelection
rates. Many argued that limiting legislative terms would lead to, among other things, fewer
professional politicians, greater devotion to the public good, less spending, and less capture by
interest groups. Opponents of legislative term limits countered that such limits would degrade
institutional memory and lead to the capture of less-experienced legislators by interest groups
and bureaucrats, who are not effected by term limits. There was a lively popular and academic
literature debating these points. E.g., GEORGE F. WILL, RESTORATION: CONGRESS, TERM LIMITS, AND
THE RECOVERY OF DELIBERATIVE DEMOCRACY (1992); Elizabeth Garrett, Term Limitations and the
Myth of the Citizen-Legislator, 81 CORNELL L. REV. 623 (1996).
Inevitably, legal challenges were mounted to the new wave of legislative term limits, as the
balance of this Chapter describes. As you consider the legal and policy issues confronting the
courts in these challenges, consider also the scholarly literature that has examined the efficacy of
the new limits. That literature to date does not provide much comfort for supporters of term
limits. For example, some studies show that states with term limits spend more than states
without. H. Abbie Erler, Legislative Term Limits and State Spending, 133 PUB. CHOICE 479
(2007) (offering speculations for this counterintuitive result, including that term limits open up
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the budgetary process in ways that lead to more participation by legislators and interest groups,
which leads to more spending). Other studies suggest that term limits have had little effect on the
type of people elected to office, but has (at least in the opinion of surveyed legislators) led to
some of the ills forecast by critics of term limits, and to increased power of governors vis-à-vis
legislatures. John M. Carey, et al., The Effects of Term Limits on State Legislators: A New
Survey of the 50 States, 31 LEGIS. STUD. Q. 105 (2006).a One term-limits sympathizer has
described the empirical studies of the effects of the limits as a “mixed bag of positives and
negatives.” LARRY J. SABATO, A MORE PERFECT CONSTITUTION 51 (2007). To what extent, if at all,
should federal and state judges take into account such studies when pondering challenges to term
limits?

B. THE CONSTITUTIONALITY OF TERM-LIMITING MEMBERS OF CONGRESS

The Constitution requires that members of the House of Representatives and of the Senate be
at least twenty-five and thirty years old, respectively; citizens of the United States for seven and
nine years, respectively; and inhabitants of the states from which they are elected. For decades,
states have added qualifications, including term limits, to those requirements. Throughout the
twentieth century federal and state courts routinely struck down these additional requirements.
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 798-800 (1995) [p. XXX] (listing cases). The
issue resurfaced in the 1990s and was resolved by the Supreme Court in the next case.

U.S. TERM LIMITS, INC. v. THORNTON

Supreme Court of the United States
514 U.S. 779, 115 S. Ct. 1842, 131 L. Ed. 2d 881 (1995)

JUSTICE STEVENS delivered the opinion of the Court [in which JUSTICE KENNEDY, JUSTICE SOUTER,
JUSTICE GINSBURG, and JUSTICE BREYER join].
The Constitution sets forth qualifications for membership in the Congress of the United
States. Article I, § 2, cl. 2, which applies to the House of Representatives, provides:
“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.”

Article I, § 3, cl. 3, which applies to the Senate, similarly provides:

“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 for which he
shall be chosen.”

***
At the general election on November 3, 1992, the voters of Arkansas adopted Amendment 73
to their State Constitution. Proposed as a “Term Limitation Amendment,” its preamble stated:
“The people of Arkansas find and declare that elected officials who remain in office too long become
a
For largely similar conclusions, see Timothy Besley & Anne Case, Does Electoral Accountability Affect Economic
Policy Choices? Evidence from Gubernatorial Term Limits, 110 Q. J. Econ. 769 (1995); Bruce E. Cain & Marc A.
Levin, Term Limits, 2 Ann. Rev. Pol. Sci. 163 (1999); Eric Lane, The Impact of Term Limits on Lawmaking in New
York City, 3 Election L.J. 670 (2004); Edward J. López, Term Limits: Causes and Consequences, 114 Pub. Choice 1
(2003).
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preoccupied with reelection and ignore their duties as representatives of the people. Entrenched
incumbency has reduced voter participation and has led to an electoral system that is less free, less
competitive, and less representative than the system established by the Founding Fathers. Therefore, the
people of Arkansas, exercising their reserved powers, herein limit the terms of elected officials.”

The limitations in Amendment 73 apply to three categories of elected officials. * * * Section

3, the provision at issue in these cases, applies to the Arkansas Congressional Delegation. It
provides:
“(a) Any person having been elected to three or more terms as a member of the United States House of
Representatives from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her
name placed on the ballot for election to the United States House of Representatives from Arkansas.
“(b) Any person having been elected to two or more terms as a member of the United States Senate from
Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the
ballot for election to the United States Senate from Arkansas.”

***
[T]he constitutionality of Amendment 73 depends critically on the resolution of two distinct
issues. The first is whether the Constitution forbids States to add to or alter the qualifications
specifically enumerated in the Constitution. The second is, if the Constitution does so forbid,
whether the fact that Amendment 73 is formulated as a ballot access restriction rather than as an
outright disqualification is of constitutional significance. Our resolution of these issues draws
upon our prior resolution of a related but distinct issue: whether Congress has the power to add
to or alter the qualifications of its Members.
Twenty-six years ago, in Powell v. McCormack, 395 U.S. 486 (1969), we reviewed the
history and text of the Qualifications Clauses in a case involving an attempted exclusion of a
duly elected Member of Congress. The principal issue was whether the power granted to each
House in Art. I, § 5, cl. 1, to judge the “Qualifications of its own Members” includes the power
to impose qualifications other than those set forth in the text of the Constitution. In an opinion by
Chief Justice Warren for eight Members of the Court, we held that it does not. * * * We * * *
conclude now, as we did in Powell, that history shows that, with respect to Congress, the
Framers intended the Constitution to establish fixed qualifications. * * *
In Powell, of course, we did not rely solely on an analysis of the historical evidence, but
instead complemented that analysis with “an examination of the basic principles of our
democratic system.” We noted that allowing Congress to impose additional qualifications would
violate that “fundamental principle of our representative democracy . . . ‘that the people should
choose whom they please to govern them.’ ”
Our opinion made clear that this broad principle incorporated at least two fundamental
ideas.10 First, we emphasized the egalitarian concept that the opportunity to be elected was open
to all. We noted in particular Madison’s statement in The Federalist [No. 52] that “[u]nder these
reasonable limitations [enumerated in the Constitution], the door of this part of the federal
government is open to merit of every description, whether native or adoptive, whether young or
old, and without regard to poverty or wealth, or to any particular profession of religious faith.”
Similarly, we noted that Wilson Carey Nicholas defended the Constitution against the charge that
it “violated democratic principles” by arguing: “It has ever been considered a great security to
liberty, that very few should be excluded from the right of being chosen to the legislature. This
10
The principle also incorporated the more practical concern that reposing the power to adopt qualifications in
Congress would lead to a self-perpetuating body to the detriment of the new Republic.
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Constitution has amply attended to this idea. We find no qualifications required except those of
age and residence.”
Second, we recognized the critical postulate that sovereignty is vested in the people, and that
sovereignty confers on the people the right to choose freely their representatives to the National
Government. * * * Thus, in Powell, we agreed * * * “[t]hat the right of the electors to be
represented by men of their own choice, was so essential for the preservation of all their other
rights, that it ought to be considered as one of the most sacred parts of our constitution.” * * *
Our reaffirmation of Powell does not necessarily resolve the specific questions presented in
these cases. For petitioners argue that whatever the constitutionality of additional qualifications
for membership imposed by Congress, the historical and textual materials discussed in Powell do
not support the conclusion that the Constitution prohibits additional qualifications imposed by
States. In the absence of such a constitutional prohibition, petitioners argue, the Tenth
Amendment and the principle of reserved powers require that States be allowed to add such
qualifications. * * * We disagree for two independent reasons. First, we conclude that the power
to add qualifications is not within the “original powers” of the States, and thus is not reserved to
the States by the Tenth Amendment. Second, even if States possessed some original power in
this area, we conclude that the Framers intended the Constitution to be the exclusive source of
qualifications for Members of Congress, and that the Framers thereby “divested” States of any
power to add qualifications. * * *
Contrary to petitioners’ assertions, the power to add qualifications is not part of the original
powers of sovereignty that the Tenth Amendment reserved to the States. Petitioners’ Tenth
Amendment argument misconceives the nature of the right at issue because that Amendment
could only “reserve” that which existed before. As Justice Story recognized [in his
Commentaries on the Constitution of the United States], “the states can exercise no powers
whatsoever, which exclusively spring out of the existence of the national government, which the
constitution does not delegate to them. . . . No state can say, that it has reserved, what it never
possessed.” * * *
With respect to setting qualifications for service in Congress, no such right existed before the
Constitution was ratified. * * * [E]lecting representatives to the National Legislature was a new
right, arising from the Constitution itself. The Tenth Amendment thus provides no basis for
concluding that the States possess reserved power to add qualifications to those that are fixed in
the Constitution. Instead, any state power to set the qualifications for membership in Congress
must derive not from the reserved powers of state sovereignty, but rather from the delegated
powers of national sovereignty. In the absence of any constitutional delegation to the States of
power to add qualifications to those enumerated in the Constitution, such a power does not exist.
Even if we believed that States possessed as part of their original powers some control over
congressional qualifications, the text and structure of the Constitution, the relevant historical
materials, and, most importantly, the “basic principles of our democratic system” all demonstrate
that the Qualifications Clauses were intended to preclude the States from exercising any such
power and to fix as exclusive the qualifications in the Constitution. * * *
As we noted earlier, the Powell Court recognized that an egalitarian ideal—that election to
the National Legislature should be open to all people of merit—provided a critical foundation for
the constitutional structure. This egalitarian theme echoes throughout the constitutional debates.
In The Federalist No. 57, for example, Madison wrote:
“Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the
esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil
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profession is permitted to fetter the judgment or disappoint the inclination of the people.” The Federalist
No. 57, at 351 [(C. Rossiter ed. 1961)] (emphasis added).

* * * Additional qualifications pose the same obstacle to open elections whatever their
source. The egalitarian ideal, so valued by the Framers, is thus compromised to the same degree
by additional qualifications imposed by States as by those imposed by Congress.
Similarly, we believe that state-imposed qualifications, as much as congressionally imposed
qualifications, would undermine the second critical idea recognized in Powell: that an aspect of
sovereignty is the right of the people to vote for whom they wish. Again, the source of the
qualification is of little moment in assessing the qualification’s restrictive impact.
Finally, state-imposed restrictions, unlike the congressionally imposed restrictions at issue in
Powell, violate a third idea central to this basic principle: that the right to choose representatives
belongs not to the States, but to the people. From the start, the Framers recognized that the “great
and radical vice” of the Articles of Confederation was “the principle of LEGISLATION for
STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as
contradistinguished from the INDIVIDUALS of whom they consist.” The Federalist No. 15, at
108 (Hamilton). Thus the Framers, in perhaps their most important contribution, conceived of a
Federal Government directly responsible to the people, possessed of direct power over the
people, and chosen directly, not by States, but by the people. * * *
Consistent with these views, the constitutional structure provides for a uniform salary to be
paid from the national treasury, allows the States but a limited role in federal elections, and
maintains strict checks on state interference with the federal election process. The Constitution
also provides that the qualifications of the representatives of each State will be judged by the
representatives of the entire Nation. The Constitution thus creates a uniform national body
representing the interests of a single people.
Permitting individual States to formulate diverse qualifications for their representatives
would result in a patchwork of state qualifications, undermining the uniformity and the national
character that the Framers envisioned and sought to ensure. * * * Such a patchwork would also
sever the direct link that the Framers found so critical between the National Government and the
people of the United States.32 * * *
Petitioners argue that, even if States may not add qualifications, Amendment 73 is
constitutional because it is not such a qualification, and because Amendment 73 is a permissible
exercise of state power to regulate the “Times, Places and Manner of holding Elections.” We
reject these contentions.
Unlike §§ 1 and 2 of Amendment 73, which create absolute bars to service for long-term
incumbents running for state office, § 3 merely provides that certain Senators and
Representatives shall not be certified as candidates and shall not have their names appear on the
ballot. They may run as write-in candidates and, if elected, they may serve. Petitioners contend
that only a legal bar to service creates an impermissible qualification, and that Amendment 73 is
therefore consistent with the Constitution. * * *

32
There is little significance to the fact that Amendment 73 was adopted by a popular vote, rather than as an Act of
the state legislature. In fact, none of the petitioners argues that the constitutionality of a state law would depend on
the method of its adoption. This is proper, because the voters of Arkansas, in adopting Amendment 73, were acting
as citizens of the State of Arkansas, and not as citizens of the National Government. The people of the State of
Arkansas have no more power than does the Arkansas Legislature to supplement the qualifications for service in
Congress. * * *
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We need not decide whether petitioners’ narrow understanding of qualifications is correct

because, even if it is, Amendment 73 may not stand. As we have often noted, “[c]onstitutional
rights would be of little value if they could be . . . indirectly denied.” Harman v. Forssenius, 380
U.S. 528, 540 (1965), quoting Smith v. Allwright, 321 U.S. 649, 664 (1944) [p. XXX]. The
Constitution “nullifies sophisticated as well as simple-minded modes” of infringing on
constitutional protections. Lane v. Wilson, 307 U.S. 268, 275 (1939).
In our view, Amendment 73 is an indirect attempt to accomplish what the Constitution
prohibits Arkansas from accomplishing directly. As the plurality opinion of the Arkansas
Supreme Court recognized, Amendment 73 is an “effort to dress eligibility to stand for Congress
in ballot access clothing,” because the “intent and the effect of Amendment 73 are to disqualify
congressional incumbents from further service.” We must, of course, accept the state court’s
view of the purpose of its own law: We are thus authoritatively informed that the sole purpose of
§ 3 of Amendment 73 was to attempt to achieve a result that is forbidden by the Federal
Constitution. Indeed, it cannot be seriously contended that the intent behind Amendment 73 is
other than to prevent the election of incumbents. * * *
Petitioners make the related argument that Amendment 73 merely regulates the “Manner” of
elections, and that the amendment is therefore a permissible exercise of state power under Article
I, § 4, cl. 1 (the Elections Clause), to regulate the “Times, Places and Manner” of elections. We
cannot agree. * * *
The Elections Clause gives States authority “to enact the numerous requirements as to
procedure and safeguards which experience shows are necessary in order to enforce the
fundamental right involved.” Smiley v. Holm, 285 U.S. [355], 366 [(1932)]. However, “[t]he
power to regulate the time, place, and manner of elections does not justify, without more, the
abridgment of fundamental rights.” Tashjian v. Republican Party of Conn., 479 U.S. 208, 217
(1986) [p. XXX]. States are thus entitled to adopt “generally applicable and evenhanded
restrictions that protect the integrity and reliability of the electoral process itself.” Anderson v.
Celebrezze, 460 U.S. 780, 788, n.9 (1983) [p. XXX]. * * *
The provisions at issue in [these] cases were thus constitutional because they regulated
election procedures and did not even arguably impose any substantive qualification rendering a
class of potential candidates ineligible for ballot position. They served the state interest in
protecting the integrity and regularity of the election process, an interest independent of any
attempt to evade the constitutional prohibition against the imposition of additional qualifications
for service in Congress. And they did not involve measures that exclude candidates from the
ballot without reference to the candidates’ support in the electoral process. Our cases upholding
state regulations of election procedures thus provide little support for the contention that a state-
imposed ballot access restriction is constitutional when it is undertaken for the twin goals of
disadvantaging a particular class of candidates and evading the dictates of the Qualifications
Clauses. * * *
The merits of term limits, or “rotation,” have been the subject of debate since the formation
of our Constitution, when the Framers unanimously rejected a proposal to add such limits to the
Constitution. The cogent arguments on both sides of the question that were articulated during the
process of ratification largely retain their force today. Over half the States have adopted
measures that impose such limits on some offices either directly or indirectly, and the Nation as a
whole, notably by constitutional amendment, has imposed a limit on the number of terms that the
President may serve. Term limits, like any other qualification for office, unquestionably restrict
the ability of voters to vote for whom they wish. On the other hand, such limits may provide for
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the infusion of fresh ideas and new perspectives, and may decrease the likelihood that
representatives will lose touch with their constituents. It is not our province to resolve this
longstanding debate.
We are, however, firmly convinced that allowing the several States to adopt term limits for
congressional service would effect a fundamental change in the constitutional framework. Any
such change must come not by legislation adopted either by Congress or by an individual State,
but rather—as have other important changes in the electoral process—through the amendment
procedures set forth in Article V. The Framers decided that the qualifications for service in the
Congress of the United States be fixed in the Constitution and be uniform throughout the Nation.
That decision reflects the Framers’ understanding that Members of Congress are chosen by
separate constituencies, but that they become, when elected, servants of the people of the United
States. They are not merely delegates appointed by separate, sovereign States; they occupy
offices that are integral and essential components of a single National Government. In the
absence of a properly passed constitutional amendment, allowing individual States to craft their
own qualifications for Congress would thus erode the structure envisioned by the Framers, a
structure that was designed, in the words of the Preamble to our Constitution, to form a “more
perfect Union.”
The judgment is affirmed.
It is so ordered.

JUSTICE KENNEDY, concurring. * * *

Federalism was our Nation’s own discovery. The Framers split the atom of sovereignty. It
was the genius of their idea that our citizens would have two political capacities, one state and
one federal, each protected from incursion by the other. The resulting Constitution created a legal
system unprecedented in form and design, establishing two orders of government, each with its
own direct relationship, its own privity, its own set of mutual rights and obligations to the people
who sustain it and are governed by it. * * *
Of course, because the Framers recognized that state power and identity were essential parts
of the federal balance, the Constitution is solicitous of the prerogatives of the States, even in an
otherwise sovereign federal province. The Constitution uses state boundaries to fix the size of
congressional delegations, Art. I, § 2, cl. 3, ensures that each State shall have at least one
representative, ibid., grants States certain powers over the times, places, and manner of federal
elections (subject to congressional revision), Art. I, § 4, cl. 1, requires that when the President is
elected by the House of Representatives, the delegations from each State have one vote, Art. II,
§ 1, cl. 3, and Amdt. 12, and allows States to appoint electors for the President, Art. II, § 1, cl. 2.
Nothing in the Constitution or The Federalist Papers, however, supports the idea of state
interference with the most basic relation between the National Government and its citizens, the
selection of legislative representatives. * * *
Not the least of the incongruities in the position advanced by Arkansas is the proposition,
necessary to its case, that it can burden the rights of resident voters in federal elections by reason
of the manner in which they earlier had exercised it. If the majority of the voters had been
successful in selecting a candidate, they would be penalized from exercising that same right in
the future. Quite apart from any First Amendment concerns, see Williams v. Rhodes, 393 U.S.
23, 30 (1968) [p. XXX]; Anderson v. Celebrezze, 460 U.S., [at] 786-788, neither the law nor
federal theory allows a State to burden the exercise of federal rights in this manner. * * *
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* * * There can be no doubt, if we are to respect the republican origins of the Nation and
preserve its federal character, that there exists a federal right of citizenship, a relationship
between the people of the Nation and their National Government, with which the States may not
interfere. Because the Arkansas enactment intrudes upon this federal domain, it exceeds the
boundaries of the Constitution.

JUSTICE THOMAS, with whom THE CHIEF JUSTICE [REHNQUIST], JUSTICE O’CONNOR, and JUSTICE
SCALIA join, dissenting.
It is ironic that the Court bases today’s decision on the right of the people to “choose whom
they please to govern them.” Under our Constitution, there is only one State whose people have
the right to “choose whom they please” to represent Arkansas in Congress. The Court holds,
however, that neither the elected legislature of that State nor the people themselves (acting by
ballot initiative) may prescribe any qualifications for those representatives. The majority
therefore defends the right of the people of Arkansas to “choose whom they please to govern
them” by invalidating a provision that won nearly 60% of the votes cast in a direct election and
that carried every congressional district in the State.
I dissent. Nothing in the Constitution deprives the people of each State of the power to
prescribe eligibility requirements for the candidates who seek to represent them in Congress. The
Constitution is simply silent on this question. And where the Constitution is silent, it raises no
bar to action by the States or the people.
Because the majority fundamentally misunderstands the notion of “reserved” powers, I start
with some first principles. Contrary to the majority’s suggestion, the people of the States need
not point to any affirmative grant of power in the Constitution in order to prescribe qualifications
for their representatives in Congress, or to authorize their elected state legislators to do so. * * *
* * * The Federal Government and the States * * * face different default rules: Where the
Constitution is silent about the exercise of a particular power—that is, where the Constitution
does not speak either expressly or by necessary implication—the Federal Government lacks that
power and the States enjoy it.
These basic principles are enshrined in the Tenth Amendment, which declares that all powers
neither delegated to the Federal Government nor prohibited to the States “are reserved to the
States respectively, or to the people.” With this careful last phrase, the Amendment avoids taking
any position on the division of power between the state governments and the people of the
States: It is up to the people of each State to determine which “reserved” powers their state
government may exercise. But the Amendment does make clear that powers reside at the state
level except where the Constitution removes them from that level. All powers that the
Constitution neither delegates to the Federal Government nor prohibits to the States are
controlled by the people of each State. * * *
Any ambiguity in the Tenth Amendment’s use of the phrase “the people” is cleared up by the
body of the Constitution itself. Article I begins by providing that the Congress of the United
States enjoys “[a]ll legislative Powers herein granted,” § 1, and goes on to give a careful
enumeration of Congress’ powers, § 8. It then concludes by enumerating certain powers that are
prohibited to the States. The import of this structure is the same as the import of the Tenth
Amendment: If we are to invalidate Arkansas’ Amendment 73, we must point to something in
the Federal Constitution that deprives the people of Arkansas of the power to enact such
measures.
The majority disagrees that it bears this burden. But its arguments are unpersuasive.
9

The majority begins by announcing an enormous and untenable limitation on the principle
expressed by the Tenth Amendment. According to the majority, the States possess only those
powers that the Constitution affirmatively grants to them or that they enjoyed before the
Constitution was adopted; the Tenth Amendment “could only ‘reserve’ that which existed
before.” From the fact that the States had not previously enjoyed any powers over the particular
institutions of the Federal Government established by the Constitution, the majority derives a
rule precisely opposite to the one that the Amendment actually prescribes. * * *
The majority’s essential logic is that the state governments could not “reserve” any powers
that they did not control at the time the Constitution was drafted. But it was not the state
governments that were doing the reserving. The Constitution derives its authority instead from
the consent of the people of the States. Given the fundamental principle that all governmental
powers stem from the people of the States, it would simply be incoherent to assert that the people
of the States could not reserve any powers that they had not previously controlled. * * *
I take it to be established, then, that the people of Arkansas do enjoy “reserved” powers over
the selection of their representatives in Congress. Purporting to exercise those reserved powers,
they have agreed among themselves that the candidates covered by § 3 of Amendment 73—those
whom they have already elected to three or more terms in the House of Representatives or to two
or more terms in the Senate—should not be eligible to appear on the ballot for reelection, but
should nonetheless be returned to Congress if enough voters are sufficiently enthusiastic about
their candidacy to write in their names. Whatever one might think of the wisdom of this
arrangement, we may not override the decision of the people of Arkansas unless something in the
Federal Constitution deprives them of the power to enact such measures.
The majority settles on “the Qualifications Clauses” as the constitutional provisions that
Amendment 73 violates. Because I do not read those provisions to impose any unstated
prohibitions on the States, it is unnecessary for me to decide whether the majority is correct to
identify Arkansas’ ballot-access restriction with laws fixing true term limits or otherwise
prescribing “qualifications” for congressional office. [T]he Qualifications Clauses are merely
straightforward recitations of the minimum eligibility requirements that the Framers thought it
essential for every Member of Congress to meet. They restrict state power only in that they
prevent the States from abolishing all eligibility requirements for membership in Congress. * * *
* * * This restriction on state power reflects the fact that when the people of one State send
immature, disloyal, or unknowledgeable representatives to Congress, they jeopardize not only
their own interests but also the interests of the people of other States. Because Congress wields
power over all the States, the people of each State need some guarantee that the legislators
elected by the people of other States will meet minimum standards of competence. The
Qualifications Clauses provide that guarantee: They list the requirements that the Framers
considered essential to protect the competence of the National Legislature.
If the people of a State decide that they would like their representatives to possess additional
qualifications, however, they have done nothing to frustrate the policy behind the Qualifications
Clauses. Anyone who possesses all of the constitutional qualifications, plus some qualifications
required by state law, still has all of the federal qualifications. Accordingly, the fact that the
Constitution specifies certain qualifications that the Framers deemed necessary to protect the
competence of the National Legislature does not imply that it strips the people of the individual
States of the power to protect their own interests by adding other requirements for their own
representatives. * * *
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The majority responds that “a patchwork of state qualifications” would “undermin[e] the
uniformity and the national character that the Framers envisioned and sought to ensure.” Yet the
Framers thought it perfectly consistent with the “national character” of Congress for the Senators
and Representatives from each State to be chosen by the legislature or the people of that State.
The majority never explains why Congress’ fundamental character permits this state-centered
system, but nonetheless prohibits the people of the States and their state legislatures from setting
any eligibility requirements for the candidates who seek to represent them.
As for the majority’s related assertion that the Framers intended qualification requirements to
be uniform, this is a conclusion, not an argument. Indeed, it is a conclusion that the
Qualifications Clauses themselves contradict. At the time of the framing, and for some years
thereafter, the Clauses’ citizenship requirements incorporated laws that varied from State to
State. Thus, the Qualifications Clauses themselves made it possible that a person would be
qualified to represent State A in Congress even though a similarly situated person would not be
qualified to represent State B. * * *
Although the Qualifications Clauses neither state nor imply the prohibition that it finds in
them, the majority infers from the Framers’ “democratic principles” that the Clauses must have
been generally understood to preclude the people of the States and their state legislatures from
prescribing any additional qualifications for their representatives in Congress. But the majority’s
evidence on this point establishes only two more modest propositions: (1) the Framers did not
want the Federal Constitution itself to impose a broad set of disqualifications for congressional
office, and (2) the Framers did not want the Federal Congress to be able to supplement the few
disqualifications that the Constitution does set forth. The logical conclusion is simply that the
Framers did not want the people of the States and their state legislatures to be constrained by too
many qualifications imposed at the national level. The evidence does not support the majority’s
more sweeping conclusion that the Framers intended to bar the people of the States and their
state legislatures from adopting additional eligibility requirements to help narrow their own
choices. * * *
* * * One reason why the Framers decided not to let Congress prescribe the qualifications of
its own Members was that incumbents could have used this power to perpetuate themselves or
their ilk in office. As Madison pointed out at the Philadelphia Convention, Members of Congress
would have an obvious conflict of interest if they could determine who may run against them.
But neither the people of the States nor the state legislatures would labor under the same conflict
of interest when prescribing qualifications for Members of Congress, and so the Framers would
have had to use a different calculus in determining whether to deprive them of this power.
As the majority argues, democratic principles also contributed to the Framers’ decision to
withhold the qualification-setting power from Congress. But the majority is wrong to suggest
that the same principles must also have led the Framers to deny this power to the people of the
States and the state legislatures. In particular, it simply is not true that “the source of the
qualification is of little moment in assessing the qualification’s restrictive impact.” There is a
world of difference between a self-imposed constraint and a constraint imposed from above.
Congressional power over qualifications would have enabled the representatives from some
States, acting collectively in the National Legislature, to prevent the people of another State from
electing their preferred candidates. * * *
Yet this is simply to say that qualifications should not be set at the national level for offices
whose occupants are selected at the state level. The majority never identifies the democratic
principles that would have been violated if a state legislature, in the days before the Constitution
11

was amended to provide for the direct election of Senators, had imposed some limits of its own
on the field of candidates that it would consider for appointment. Likewise, the majority does not
explain why democratic principles prohibit the people of a State from adopting additional
eligibility requirements to help narrow their choices among candidates seeking to represent them
in the House of Representatives. Indeed, the invocation of democratic principles to invalidate
Amendment 73 seems particularly difficult in the present case, because Amendment 73 remains
fully within the control of the people of Arkansas. If they wanted to repeal it (despite the 20-
point margin by which they enacted it less than three years ago), they could do so by a simple
majority vote. * * * When the people of a State themselves decide to restrict the field of
candidates whom they are willing to send to Washington as their representatives, they simply
have not violated the principle that “the people should choose whom they please to govern
them.” * * *
It is radical enough for the majority to hold that the Constitution implicitly precludes the
people of the States from prescribing any eligibility requirements for the congressional
candidates who seek their votes. This holding, after all, does not stop with negating the term
limits that many States have seen fit to impose on their Senators and Representatives. 39 Today’s
decision also means that no State may disqualify congressional candidates whom a court has
found to be mentally incompetent, who are currently in prison, or who have past vote-fraud
convictions. Likewise, after today’s decision, the people of each State must leave open the
possibility that they will trust someone with their vote in Congress even though they do not trust
him with a vote in the election for Congress.
In order to invalidate § 3 of Amendment 73, however, the majority must go further. The bulk
of the majority’s analysis * * * addresses the issues that would be raised if Arkansas had
prescribed “genuine, unadulterated, undiluted term limits.” But as the parties have agreed,
Amendment 73 does not actually create this kind of disqualification. It does not say that covered
candidates may not serve any more terms in Congress if reelected, and it does not indirectly
achieve the same result by barring those candidates from seeking reelection. It says only that if
they are to win reelection, they must do so by write-in votes. * * *
The majority suggests that this does not matter, because Amendment 73 itself says that it has
the purpose of “evading the requirements of the Qualifications Clauses.” * * * [I am not sure
why the intent behind a law should affect our analysis under the Qualifications Clauses. If a law
does not in fact add to the constitutional qualifications, the mistaken expectations of the people
who enacted it would not seem to affect whether it violates the alleged exclusivity of those
Clauses.] In any event, inquiries into legislative intent are even more difficult than usual when
the legislative body whose unified intent must be determined consists of 825,162 Arkansas
voters.
The majority nonetheless thinks it clear that the goal of § 3 is “to prevent the election of
incumbents.” In reaching this conclusion at the summary-judgment stage, however, the majority
has given short shrift to petitioners’ contrary claim. Petitioners do not deny that § 3 of
Amendment 73 intentionally handicaps a class of candidates, in the sense that it decreases their
39
Going into the November 1994 elections, eight States [(Colorado, Michigan, Missouri, Montana, Ohio, Oregon,
South Dakota, and Utah)] had adopted “pure” term limits of one sort or another. Eight other States [(Arizona,
Arkansas, California, Florida, North Dakota, Oklahoma, Washington, and Wyoming)] had enacted “ballot access”
provisions triggered by long-term incumbency or multiple prior terms in Congress. In the 1994 elections, six more
States—Alaska, Idaho, Maine, Massachusetts, Nebraska, and Nevada—enacted term-limit or ballot-access
measures, bringing to 22 the total number of States with such provisions. In 21 of these States, the measures have
been enacted by direct vote of the people.
 12

pre-existing electoral chances. But petitioners do deny that § 3 is intended to (or will in fact)
“prevent” the covered candidates from winning reelection, or “disqualify” them from further
service. One of petitioners’ central arguments is that congressionally conferred advantages have
artificially inflated the pre-existing electoral chances of the covered candidates, and that
Amendment 73 is merely designed to level the playing field on which challengers compete with
them.
To understand this argument requires some background. Current federal law (enacted, of
course, by congressional incumbents) confers numerous advantages on incumbents, and these
advantages are widely thought to make it “significantly more difficult” for challengers to defeat
them. For instance, federal law gives incumbents enormous advantages in building name
recognition and good will in their home districts. See, e.g., 39 U.S.C. § 3210 (permitting
Members of Congress to send “franked” mail free of charge); 2 U.S.C. §§ 61-1, 72a, 332
(permitting Members to have sizable taxpayer-funded staffs); 2 U.S.C. § 123b (establishing the
House Recording Studio and the Senate Recording and Photographic Studios). At the same time
that incumbent Members of Congress enjoy these in-kind benefits, Congress imposes spending
and contribution limits in congressional campaigns that “can prevent challengers from spending
more . . . to overcome their disadvantage in name recognition.” Many observers believe that the
campaign-finance laws also give incumbents an “enormous fund-raising edge” over their
challengers by giving a large financing role to entities with incentives to curry favor with
incumbents. In addition, the internal rules of Congress put a substantial premium on seniority,
with the result that each Member’s already plentiful opportunities to distribute benefits to his
constituents increase with the length of his tenure. In this manner, Congress effectively “fines”
the electorate for voting against incumbents. * * *
At the same time that incumbents enjoy the electoral advantages that they have conferred
upon themselves, they also enjoy astonishingly high reelection rates. * * *
The voters of Arkansas evidently believe that incumbents would not enjoy such
overwhelming success if electoral contests were truly fair—that is, if the government did not put
its thumb on either side of the scale. The majority offers no reason to question the accuracy of
this belief. Given this context, petitioners portray § 3 of Amendment 73 as an effort at the state
level to offset the electoral advantages that congressional incumbents have conferred upon
themselves at the federal level. * * *
* * * [T]oday’s decision reads the Qualifications Clauses to impose substantial implicit
prohibitions on the States and the people of the States. I would not draw such an expansive
negative inference * * *. Rather, I would read the Qualifications Clauses to do no more than
what they say. I respectfully dissent.

Notes and Questions

1. Both the majority and dissenting opinions in U.S. Term Limits spend a considerable
amount of time discussing democratic principles to place their legal analysis in context. Einer
Elhauge, in his article, Are Term Limits Undemocratic?, 64 U. CHI. L. REV. 83 (1997), revisited
those principles and confronted the apparent paradox that the same voters who frequently
support term limits nonetheless also frequently vote to keep incumbent officeholders. There is no
contradiction, Elhauge argued, because voters who—at least sometimes—wish to oust
incumbents (keeping with the ethos of term limits) face a collective-action problem. Any
individual political jurisdiction that has term limits is at a disadvantage to jurisdictions that do
not, since the latter keep seniority and other political advantages for their incumbents. In
13

contrast, he suggested, the justification for the more established term limits for Presidents,
governors, and mayors may reflect the need to deal with high barriers of political entry to run for
such positions. He concluded that these rationales provided the better reasons to find term limits
to be prodemocratic. How persuasive are Elhauge’s arguments? Do they provide a better basis to
support term limits at the state (and sub-state) level as opposed to those for federal officeholders,
or vice-versa?
2. The majority in U.S. Term Limits took pains to distinguish “procedural” regulations that
protect the “integrity and regularity of the election process” from “substantive” restrictions such
as those enacted by Arkansas. In other contexts the Supreme Court has upheld various state-
imposed qualifications for being placed on the ballot, including ones that fall more onerously on
independent candidates. E.g., Storer v. Brown, 415 U.S. 724 (1974) [p. XXX] (upholding
provisions of California law which made independent candidates ineligible for placement on the
general-election ballot if they had been members of an existing political party in the past primary
season). Could these and similar state restrictions be attacked under U.S. Term Limits, at least for
elections to federal offices? In Campbell v. Davidson, 233 F.3d 1229 (10th Cir. 2000), the court
struck down provisions of Colorado law which required seekers of federal office to be registered
voters in that state before the beginning of the term of office. Following U.S. Term Limits and
distinguishing cases like Storer, the court concluded that the requirements did not merely
winnow candidates for the ballot but impermissibly excluded certain types of candidates.
3. Is there a constitutional difference between the people of a state acting collectively to add
to the constitutionally specified qualifications—the effort struck down in U.S. Term Limits—and
the people acting individually by voting against any candidate not possessing the additional
qualifications? If a state legislature were to choose presidential electors (or, before the
Seventeenth Amendment, United States Senators), could it constitutionally restrict its choice to
those candidates with certain experience, or who are members of the majority party in the
legislature?
4. While U.S. Term Limits places considerable weight on the Qualifications Clauses of the
Constitution, do the broader principles applied by the Court suggest that term limits for state
officials also violate the Constitution? One court answered in the negative, concluding that
lifetime term limits in California were constitutional, and that U.S. Term Limits was limited to
congressional offices. Bates v. Jones, 131 F.3d 843, 847 n.1 (9th Cir. 1997) (en banc). In
contrast, the dissent argued that the broader analysis of U.S. Term Limits suggested that it had
implications for attacks on state term limits. Id. at 868-72 (Fletcher, J., dissenting).
5. The vast majority of legislative term limits adopted in states in the 1990s were by popular
initiative or referendum, not by state legislatures. Michael J. Klarman, Majoritarian Judicial
Review: The Entrenchment Problem, 85 GEO. L.J. 491, 510 (1997). Why have state legislatures
largely not enacted these limits? To what extent, if at all, should the method of enactment of term
limits affect judicial review of such provisions?
6. Term limits are themselves sometimes limited or repealed, as support for the measures
ebbs despite initial enthusiasm. For example, since the widespread adoption of such limits for
state legislatures in the 1990s, two have been repealed by legislatures (Idaho and Utah), and
others have been ruled unconstitutional by state supreme courts (Massachusetts, Oregon,
Washington, and Wyoming). For other examples, see David W. Chen & Michael Barbaro,
Across Country, New Challenges to Term Limits, N.Y. TIMES, Sept. 10, 2008, at A1. A high-
profile example of the controversy that continues to surround term limits was the extension of
the two-term limit for New York City’s mayor to three terms in 2008. The extension survived a
 14

legal challenge, Molinari v. Bloomberg, 564 F.3d 587 (2d Cir. 2009), but it proved a political
liability for incumbent Mayor Michael Bloomberg, the beneficiary of the change. Michael
Barbaro, Change to Term Limits Dogs Mayor, N.Y. TIMES, Oct. 4, 2009, at A17.

COOK v. GRALIKE
Supreme Court of the United States
531 U.S. 510, 121 S. Ct. 1029, 149 L. Ed. 2d 44 (2001).

JUSTICE STEVENS delivered the opinion of the Court [in which JUSTICE SCALIA, JUSTICE KENNEDY,
JUSTICE SOUTER, JUSTICE THOMAS, JUSTICE GINSBURG, and JUSTICE BREYER join]. * * *
Article VIII [of the Missouri Constitution] “instruct[s]” each Member of Missouri’s
congressional delegation “to use all of his or her delegated powers to pass the Congressional
Term Limits Amendment” set forth in § 16 of the Article. That proposed amendment would limit
service in the United States Congress to three terms in the House of Representatives and two
terms in the Senate.
Three provisions in Article VIII combine to advance its purpose. Section 17 prescribes that
the statement “DISREGARDED VOTERS’ INSTRUCTION ON TERM LIMITS” be printed on
all primary and general ballots adjacent to the name of a Senator or Representative who fails to
take any one of eight legislative acts in support of the proposed amendment. Section 18 provides
that the statement “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS” be printed on all
primary and general election ballots next to the name of every nonincumbent congressional
candidate who refuses to take a “Term Limit” pledge that commits the candidate, if elected, to
performing the legislative acts enumerated in § 17. And § 19 directs the Missouri Secretary of
State to determine and declare, pursuant to §§ 17 and 18, whether either statement should be
printed alongside the name of each candidate for Congress.
Respondent Don Gralike was a nonincumbent candidate for election in 1998 to the United
States House of Representatives from Missouri’s Third Congressional District. A month after
Article VIII was amended, Gralike brought suit * * * to enjoin petitioner, the Secretary of State
of Missouri, from implementing the Article, which the complaint alleges violates several
provisions of the Federal Constitution. * * *
The federal offices at stake “aris[e] from the Constitution itself.” U.S. Term Limits, Inc. v.
Thornton, 514 U.S. [779], 805 [(1995)] [p. XXX]. Because any state authority to regulate
election to those offices could not precede their very creation by the Constitution, such power
“had to be delegated to, rather than reserved by, the States.” Id., at 804. * * * Through the
Elections Clause, the Constitution delegated to the States the power to regulate the “Times,
Places and Manner of holding Elections for Senators and Representatives,” subject to a grant of
authority to Congress to “make or alter such Regulations.” Art. I, § 4, cl. 1. No other
constitutional provision gives the States authority over congressional elections, and no such
authority could be reserved under the Tenth Amendment. By process of elimination, the States
may regulate the incidents of such elections, including balloting, only within the exclusive
delegation of power under the Elections Clause.
With respect to the Elections Clause, petitioner argues that Article VIII “merely regulates the
manner in which elections are held by disclosing information about congressional candidates.”
As such, petitioner concludes, Article VIII is a valid exercise of Missouri’s delegated power.
We disagree. To be sure, the Elections Clause grants to the States “broad power” to prescribe
the procedural mechanisms for holding congressional elections. Tashjian v. Republican Party of
Conn., 479 U.S. 208, 217 (1986) [p. XXX]; see also Smiley v. Holm, 285 U.S. 355, 366 (1932).
15

Nevertheless, Article VIII falls outside of that grant of authority. As we made clear in U.S. Term
Limits, “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, to favor or disfavor a
class of candidates, or to evade important constitutional restraints.” 514 U.S., at 833-834. Article
VIII is not a procedural regulation. It does not regulate the time of elections; it does not regulate
the place of elections; nor, we believe, does it regulate the manner of elections. As to the last
point, Article VIII bears no relation to the “manner” of elections as we understand it, for in our
commonsense view that term encompasses matters like “notices, registration, supervision of
voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties
of inspectors and canvassers, and making and publication of election returns.” Smiley, 285 U.S.,
at 366; see also U.S. Term Limits, Inc. v. Thornton, 514 U.S., at 833. In short, Article VIII is not
among “the numerous requirements as to procedure and safeguards which experience shows are
necessary in order to enforce the fundamental right involved,” Smiley, 285 U.S., at 366, ensuring
that elections are “fair and honest,” and that “some sort of order, rather than chaos, is to
accompany the democratic process,” Storer v. Brown, 415 U.S. 724, 730 (1974) [p. XXX].
Rather, Article VIII is plainly designed to favor candidates who are willing to support the
particular form of a term limits amendment set forth in its text and to disfavor those who either
oppose term limits entirely or would prefer a different proposal. As noted, the state provision
does not just “instruct” each member of Missouri’s congressional delegation to promote in
certain ways the passage of the specified term limits amendment. It also attaches a concrete
consequence to noncompliance—the printing of the statement “DISREGARDED VOTERS’
INSTRUCTIONS ON TERM LIMITS” by the candidate’s name on all primary and general
election ballots. Likewise, a nonincumbent candidate who does not pledge to follow the
instruction receives the ballot designation “DECLINED TO PLEDGE TO SUPPORT TERM
LIMITS.”
In describing the two labels, the courts below have employed terms such as “pejorative,”
“negative,” “derogatory,” “intentionally intimidating,” “particularly harmful,” “politically
damaging,” “a serious sanction,” “a penalty,” and “official denunciation.” The general counsel to
petitioner’s office, no less, has denominated the labels as “the Scarlet Letter.” We agree with the
sense of these descriptions. They convey the substantial political risk the ballot labels impose on
current and prospective congressional members who, for one reason or another, fail to comply
with the conditions set forth in Article VIII for passing its term limits amendment. Although
petitioner now claims that the labels “merely” inform Missouri voters about a candidate’s
compliance with Article VIII, she has acknowledged under oath that the ballot designations
would handicap candidates for the United States Congress. To us, that is exactly the intended
effect of Article VIII.
Indeed, it seems clear that the adverse labels handicap candidates “at the most crucial stage in
the election process—the instant before the vote is cast.” Anderson v. Martin, 375 U.S. 399, 402
(1964). At the same time, “by directing the citizen’s attention to the single consideration” of the
candidates’ fidelity to term limits, the labels imply that the issue “is an important—perhaps
paramount—consideration in the citizen’s choice, which may decisively influence the citizen to
cast his ballot” against candidates branded as unfaithful. Ibid. While the precise damage the
labels may exact on candidates is disputed between the parties, the labels surely place their
targets at a political disadvantage to unmarked candidates for congressional office. Thus, far
from regulating the procedural mechanisms of elections, Article VIII attempts to “dictate
electoral outcomes.” U.S. Term Limits, Inc. v. Thornton, 514 U.S., at 833-834. Such “regulation”
 16

of congressional elections simply is not authorized by the Elections Clause.

Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.

JUSTICE KENNEDY, concurring.

I join the opinion of the Court * * *. It seems appropriate, however, to add these brief
observations * * *. The Court does not say the States are disabled from requesting specific action
from Congress or from expressing their concerns to it. As the Court holds, however, the
mechanism the State seeks to employ here goes well beyond this prerogative.
A State is not permitted to interpose itself between the people and their National Government
as it seeks to do here. Whether a State’s concern is with the proposed enactment of a
constitutional amendment or an ordinary federal statute it simply lacks the power to impose any
conditions on the election of Senators and Representatives, save neutral provisions as to the time,
place, and manner of elections pursuant to Article I, § 4. * * * The Court rules, as it must, that
the amendments to Article VIII of the Missouri Constitution do not regulate the time or place of
federal elections; rather, those provisions are an attempt to control the actions of the State’s
congressional delegation.
The dispositive principle in this case is fundamental to the Constitution, to the idea of
federalism, and to the theory of representative government. The principle is that Senators and
Representatives in the National Government are responsible to the people who elect them, not to
the States in which they reside. The Constitution was ratified by Conventions in the several
States, not by the States themselves, U.S. Const., Art. VII, a historical fact and a constitutional
imperative which underscore the proposition that the Constitution was ordained and established
by the people of the United States. U.S. Const., preamble. The idea of federalism is that a
National Legislature enacts laws which bind the people as individuals, not as citizens of a State;
and, it follows, freedom is most secure if the people themselves, not the States as intermediaries,
hold their federal legislators to account for the conduct of their office. If state enactments were
allowed to condition or control certain actions of federal legislators, accountability would be
blurred, with the legislators having the excuse of saying that they did not act in the exercise of
their best judgment but simply in conformance with a state mandate. As noted in the concurring
opinion in Thornton, “[n]othing in the Constitution or The Federalist Papers . . . supports the idea
of state interference with the most basic relation between the National Government and its
citizens, the selection of legislative representatives.” 514 U.S., at 842. Yet that is just what
Missouri seeks to do through its law—to wield the power granted to it by the Elections Clause to
handicap those who seek federal office by affixing pejorative labels next to their names on the
ballot if they do not pledge to support the State’s preferred position on a certain issue. Neither
the design of the Constitution nor sound principles of representative government are consistent
with the right or power of a State to interfere with the direct line of accountability between the
National Legislature and the people who elect it. For these reasons Article VIII is void.
This said, it must be noted that when the Constitution was enacted, respectful petitions to
legislators were an accepted mode of urging legislative action. This right is preserved to
individuals (the people) in the First Amendment. Even if a State, as an entity, is not itself
protected by the Petition Clause, there is no principle prohibiting a state legislature from
following a parallel course and by a memorial resolution requesting the Congress of the United
States to pay heed to certain state concerns. From the earliest days of our Republic to the present
time, States have done so in the context of federal legislation. See, e.g., 22 Annals of Cong. 153-
17

154 (1811) (reprinting a resolution by the General Assembly of the Commonwealth of

Pennsylvania requesting that the charter of the Bank of the United States not be renewed); 2000
Ala. Acts 66 (requesting targeted relief for Medicare cuts); 2000 Kan. Sess. Laws, ch. 186
(urging Congress to allow state-inspected meat to be shipped in interstate commerce). Indeed,
the situation was even more complex in the early days of our Nation, when Senators were
appointed by state legislatures rather than directly elected. At that time, it appears that some state
legislatures followed a practice of instructing the Senators whom they had appointed to pass
legislation, while only requesting that the Representatives, who had been elected by the people,
do so. See 22 Annals of Cong., at 153-154. I do not believe that the situation should be any
different with respect to a proposed constitutional amendment, and indeed history bears this out.
See, e.g., 13 Annals of Cong. 95-96 (1803) (reprinting a resolution from the State of Vermont
and the Commonwealth of Massachusetts requesting that Congress propose to the legislatures of
the States a constitutional amendment akin to the Twelfth Amendment). The fact that the
Members of the First Congress decided not to codify a right to instruct legislative representatives
does not, in my view, prove that they intended to prohibit nonbinding petitions or memorials by
the State as an entity.
If there are to be cases in which a close question exists regarding whether the State has
exceeded its constitutional authority in attempting to influence congressional action, this case is
not one of them. In today’s case the question is not close. Here the State attempts to intrude upon
the relationship between the people and their congressional delegates by seeking to control or
confine the discretion of those delegates, and the interference is not permissible.
With these observations, I concur in the Court’s opinion.

JUSTICE THOMAS, concurring * * *.

I continue to believe that, because they possess “reserved” powers, “the people of the States
need not point to any affirmative grant of power in the Constitution in order to prescribe
qualifications for their representatives in Congress, or to authorize their elected state legislators
to do so.” U.S. Term Limits, Inc. v. Thornton, 514 U.S., [at] 846 (THOMAS, J., dissenting). For this
reason, I disagree with the Court’s premise, derived from U.S. Term Limits, that the States have
no authority to regulate congressional elections except for the authority that the Constitution
expressly delegates to them. Nonetheless, the parties conceded the validity of this premise, and I
therefore concur.

CHIEF JUSTICE REHNQUIST, with whom JUSTICE O’CONNOR joins, concurring in the judgment.
I would affirm the judgment of the Court of Appeals, but on the ground that Missouri’s
Article VIII violates the First Amendment to the United States Constitution. Specifically, I
believe that Article VIII violates the First Amendment right of a political candidate, once
lawfully on the ballot, to have his name appear unaccompanied by pejorative language required
by the State. Our ballot access cases based on First Amendment grounds have rarely
distinguished between the rights of candidates and the rights of voters. In Bullock v. Carter, 405
U.S. 134, 143 (1972) [p. XXX], we said: “[T]he rights of voters and the rights of candidates do
not lend themselves to neat separation; laws that affect candidates always have at least some
theoretical, correlative effect on voters.” And in Anderson v. Celebrezze, 460 U.S. 780, 787
(1983) [p. XXX], we said that “voters can assert their preferences only through candidates or
parties or both.” Actions such as the present one challenging ballot provisions have in most
instances been brought by the candidates themselves, and no one questions the standing of
 18

respondents Gralike and Harmon to raise a First Amendment challenge to such laws.*
Article I, § 4, provides that “[t]he Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . .”
Missouri justifies Article VIII as a “time, place, and manner” regulation of election. Restrictions
of this kind are valid “provided that they are justified without reference to the content of the
regulated speech, that they are narrowly tailored to serve a significant governmental interest, and
that they leave open ample alternative channels for communication of the information.” Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). Missouri’s Article VIII flunks
two of these three requirements. Article VIII is not only not content neutral, but it actually
discriminates on the basis of viewpoint because only those candidates who fail to conform to the
State’s position receive derogatory labels. The result is that the State injects itself into the
election process at an absolutely critical point—the composition of the ballot, which is the last
thing the voter sees before he makes his choice—and does so in a way that is not neutral as to
issues or candidates. The candidates who are thus singled out have no means of replying to their
designation which would be equally effective with the voter.
In Anderson v. Martin, we held that a Louisiana statute requiring the designation of a
candidate’s race on the ballot violated the Equal Protection Clause. In describing the effect of
such a designation, the Court said: “[B]y directing the citizen’s attention to the single
consideration of race or color, the State indicates that a candidate’s race or color is an important
—perhaps paramount—consideration in the citizen’s choice, which may decisively influence the
citizen to cast his ballot along racial lines.” Id., at 402. So, too, here the State has chosen one and
only one issue to comment on the position of the candidates. During the campaign, they may
debate tax reform, Social Security, national security, and a host of other issues; but when it
comes to the ballot on which one or the other of them is chosen, the State is saying that the issue
of term limits is paramount. Although uttered in a different context, what we said in Police Dept.
of Chicago v. Mosley, 408 U.S. 92, 96 (1972), is equally applicable here: “[Government] may
not select which issues are worth discussing or debating.”
If other Missouri officials feel strongly about the need for term limits, they are free to urge
rejection of candidates who do not share their view and refuse to “take the pledge.” Such
candidates are able to respond to that sort of speech with speech of their own. But the State itself
may not skew the ballot listings in this way without violating the First Amendment.

Notes and Questions

1. How does Gralike apply to other state regulations of federal elections? Justice Kennedy
said it was not a close case, but how are close cases evaluated under Gralike? For example, states
frequently list the political parties of candidates on ballots for federal office. Can a candidate
object under Gralike? For a general discussion of other ballot restrictions in light of Gralike, see
Matthew M. Mannix, Comment, Opening Ballot Access to Political Outsiders: How Third
Parties Could Use Cook v. Gralike to Challenge the Dominance of America’s Two-Party System,
11 ROGER WILLIAMS U. L. REV. 273 (2005).
2. Does or should Gralike apply to state elections? How would the authors of the concurring
opinions resolve that issue?
*
The Court of Appeals upheld their First Amendment claim, but based its reasoning on the view that the ballot
statements were “compelled speech” by the candidate, and therefore ran afoul of cases such as Wooley v. Maynard,
430 U.S. 705 (1977). I do not agree with the reasoning of the Court of Appeals. I do not believe a reasonable voter,
viewing the ballot labeled as Article VIII requires, would think that the candidate in question chose to characterize
himself as having “disregarded voters’ instructions” or as “having declined to pledge” to support term limits.
19

3. Why do you think Justice Scalia joined the majority opinion in Gralike after dissenting in
U.S. Term Limits?
4. It has been argued that even without the Qualifications Clauses and the First Amendment,
the result in Gralike should be the same, since the structural provisions of “a representative
democracy—plainly contemplated by the Constitution’s provisions for the federal legislature and
federal elections—is dependent on the operation of elections unbiased by the existing
government.” Vicki C. Jackson, Cook v. Gralike: Easy Cases and Structural Reasoning, 2001
SUP. CT. REV. 299, 300; cf. National Endowment for the Arts v. Finley, 524 U.S. 569, 598 n.3
(1998) (Scalia, J., concurring in the judgment) (“I suppose it would be unconstitutional for the
government to give money to an organization devoted to the promotion of candidates nominated
by the Republican party—but it would be just as unconstitutional for the government itself to
promote candidates nominated by the Republican party, and I do not think that that
unconstitutionality has anything to do with the First Amendment.”). But if Article VIII of the
Missouri Constitution did not violate the Qualifications Clauses or the First Amendment, by
what authority could the Supreme Court invalidate it?