COOK v. GRALIKE et al.

Decided February 28, 2001

     Justice Stevens delivered the opinion of the Court.

     In U. S. Term Limits, Inc. v. Thornton (1995), we reviewed a challenge to an Arkansas law that prohibited the name of an otherwise eligible candidate for the United States Congress from appearing on the general election ballot if he or she had already served three terms in the House of Representatives or two terms in the Senate. We held that the ballot restriction was an indirect attempt to impose term limits on congressional incumbents that violated the Qualifications Clauses in Article I of the Constitution rather than a permissible exercise of the State's power to regulate the "Times, Places and Manner of holding Elections for Senators and Representatives" within the meaning of Article I, §4, cl. 1.

     In response to that decision, the voters of Missouri adopted in 1996 an amendment to Article VIII of their State Constitution designed to lead to the adoption of a specified "Congressional Term Limits Amendment" to the Federal Constitution. At issue in this case is the constitutionality of Article VIII.


     Article VIII "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. Mo. Const., Art. VIII, §17(1). 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, respondent brought suit in the United States District Court for the Western District of Missouri to enjoin petitioner, the Secretary of State of Missouri, from implementing the Article, which the complaint alleges violates several provisions of the Federal Constitution....

      Article VIII furthers the State's interest in adding a term limits amendment to the Federal Constitution in two ways. It encourages Missouri's congressional delegation to support such an amendment in order to avoid an unfavorable ballot designation when running for reelection. And it encourages the election of representatives who favor such an amendment. Petitioner argues that Article VIII is an exercise of the "right of the people to instruct" their representatives reserved by the Tenth Amendment, and that it is a permissible regulation of the "manner" of electing federal legislators within the authority delegated to the States by the Elections Clause, Art. I, §4, cl. 1. Because these two arguments rely on different sources of state power, it is appropriate at the outset to review the distinction in kind between powers reserved to the States and those delegated to the States by the Constitution.

     As we discussed at length in U. S. Term Limits, the Constitution "draws a basic distinction between the powers of the newly created Federal Government and the powers retained by the pre-existing sovereign States."  On the one hand, in the words of Chief Justice Marshall, "it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument." The text of the Tenth Amendment delineates this principle: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

     On the other hand, as Justice Story observed, "the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution did not delegate to them."  Simply put, "[n]o state can say, that it has reserved, what it never possessed."

     To be persuasive, petitioner's argument that Article VIII is a valid exercise of the State's reserved power to give binding instructions to its representatives would have to overcome three hurdles. First, the historical precedents on which she relies for the proposition that the States have such a reserved power are distinguishable. Second, there is countervailing historical evidence. Third, and of decisive significance, the means employed to issue the instructions, ballots for congressional elections, are unacceptable unless Article VIII is a permissible exercise of the State's power to regulate the manner of holding elections for Senators and Representatives. Only a brief comment on the first two points is necessary.

     Petitioner relies heavily on the part instructions played in the Second Continental Congress, the Constitutional Convention, the early Congress, the selection of United States Senators before the passage of the Seventeenth Amendment, and the ratification of certain federal constitutional amendments. However, unlike Article VIII, none of petitioner's examples was coupled with an express legal sanction for disobedience. At best, as an amicus curiae for petitioner points out, and as petitioner herself acknowledges, such historical instructions at one point in the early Republic may have had "de facto binding force" because it might have been "political suicide" not to follow them. This evidence falls short of demonstrating that either the people or the States had a right to give legally binding, i.e., nonadvisory, instructions to their representatives that the Tenth Amendment reserved, much less that such a right would apply to federal representatives.

     Indeed, contrary evidence is provided by the fact that the First Congress rejected a proposal to insert a right of the people "to instruct their representatives" into what would become the First Amendment.  The fact that the proposal was made suggests that its proponents thought it necessary, and the fact that it was rejected by a vote of 41 to 10,  suggests that we should give weight to the views of those who opposed the proposal. It was their view that binding instructions would undermine an essential attribute of Congress by eviscerating the deliberative nature of that National Assembly.  As a result, James Madison, then a Representative from Virginia, concluded that a right to issue binding instructions would "run the risk of losing the whole system."

     In any event, even assuming the existence of the reserved right that petitioner asserts (and that Article VIII falls within its ambit), the question remains whether the State may use ballots for congressional elections as a means of giving its instructions binding force.


     The federal offices at stake "aris[e] from the Constitution itself." 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."  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."  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.  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." 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." 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," ensuring that elections are "fair and honest," and that "some sort of order, rather than chaos, is to accompany the democratic process."

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

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....

     In Anderson v. Martin (1964), we held 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."  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 Department of Chicago v. Mosley (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.

Exploring Constitutional Conflicts