State Regulation of Federal Elections

The early 1990s saw a great deal of interest in term limits. Advocates of term limits argued that long-term representatives grew too cozy with special interests, became out-of-touch with their constituents, abused the power of incumbency, and lacked fresh ideas needed to deal with the problems of the time. Critics of term limits contended that they unfairly discounted the value of experience, discouraged good people from seeking office, and left new representatives even more beholden to entrenched special interests and lobbyists--because they "know the ropes" that the new representatives don't.

In 1995, the Court considered in U. S. Term Limits v Hill the constitutionality of an Arkansas law that limited Arkansas representatives to a maximum of three terms (6 years) in the U. S. House or two terms (12 years) in the U. S. Senate. (The law prohibited persons who had served the maximum number of terms from being certified for the ballot, leaving open only the nearly hopeless prospect of running as a write-in candidate.) The Court concluded that the Qualifications Clauses of Article I, Sections 2 and 3 set forth a set of qualifications for federal elected office that could not be altered or added to. The Court saw as central to the framers vision that voters have the right to vote for whomever they wished. The Court also rejected the argument of Arkansas that its ballot access law might be considered a "time, place or manner" regulation of a federal election, such as is authorized by Article I, Section 4 of the Constitution. The regulation, according to the Court, was clearly a "qualification." In dissent, Justice Thomas argued that the qualifications set forth in Article I were a "minimum" set of qualifications and that the states--under the 10th Amendment--had the power to impose additional qualifications.

In Cook v Gralike (2001), the Court considered a Missouri law that "instructed" its congressional delegation to "use all of his or her delegated powers to pass the Congressional Term Limits Amendment." Under the Missouri law, elected representatives who failed to take specified actions to pass the amendment, or nonincumbent candidates for Congress who refused to take a "Term Limit" pledge faced language next to their names on the ballot that said "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" or "DECLINED TO SUPPORT TERM LIMITS." The Court rejected Missouri's contention that the law was an instruction of the sort commonly used early in our nation's history, noting that those earlier instructions carried no formal penalty (were "non-binding") and that the framers placed a high value in maintaining the deliberative nature of the National Assembly. The Court saw Missouri's "scarlet letter" law as not a manner regulation, but as an additional qualification for office of the sort rejected in U. S. Term Limits. Justice Rehnquist, in a concurring opinion, concluded that the law punished the content of a candidate's expression and therefore violated the First Amendment.

In 2008, in Crawford v Marion County Election Board, the Supreme Court considered a challenge to Indiana's strict voter identification law. In upholding a law that required voters to present either a driver's license, a passport, or a state-issued photo identification card, three justices (Scalia, Thomas, and Alito) believed Indiana's law should be subjected only to rational basis scrutinty, and that the state's interest in preventing vote fraud constituted a rational basis. Three other justices (Stevens, Roberts, and Kennedy) allowed that an as-applied challenge might have merit for a voter that could show that the law places a substantial burden on his or her ability to vote. In such cases, heightened scrutiny might be justified, even though such scrutiny was not appropriate for a facial challenge to the law. Three dissenting justices (Souter, Ginsburg, and Breyer) concluded, using a balancing test, that Indiana's interest in preventing voter fraud did not justify the significant burden that the law placed on specific groups of voters (such as the homeless and elderly residents who did not drive cars). Voter ID laws are typically backed by Republican legislators (all Republican legislators in Indiana voted for the law) and opposed by Democratic legislators (all Democratic legislators in Indiana voted against the law). Practically everyone agrees that the citizens who are most likely to be discouraged from voting by strict voter ID laws tend, disproportionately, to vote Democratic.