Nos. 93-1456 and 93-1828 In the Supreme Court of the United States OCTOBER TERM, 1994 U.S. TERM LIMITS, INC., ET AL., PETITIONERS v. RAY THORNTON, ET AL. WINSTON BRYANT, ATTORNEY GENERAL OF ARKANSAS PETITIONER v. BOBBIE E. HILL, ET AL. ON WRITS OF CERTIORARI TO THE SUPREME COURT OF ARKANSAS BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENTS DREW S. DAYS, III Solicitor General WALTER DELLINGER FRANK W. HUNGER Assistant Attorneys General PAUL BENDER Deputy Solicitor General PAUL R.Q. WOLFSON Assistant to the Solicitor General DOUGLAS N. LETTER MICHAEL S. RAAB Attorneys Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether Amendment 73 to the Arkansas Constitution, which provides that a person who has served three or more terms as a Member of the United States House of Representatives, or two or more terms as a Member of the United States Senate, can never again have his or her name placed on the ballot for that office, contravenes Article I, Section 2, Clause 2, and Article I, Section 3, Clause 3, of the United States Constitution. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Interest of the United States . . . . 1 Statement . . . . 2 Summary of argument . . . . 4 Argument: Amendment 73 adds to the qualifications for con- gressional service set forth in the Constitution and is therefore invalid . . . . 6 A. A term-limits provision would be unconstitu- tional if imposed by Congress . . . . 7 B. The Qualifications Clauses also restrict the power of the States . . . . 10 C. The Elections Clause does not authorize the States to impose additional qualifications like term limits . . . . 17 D. Amendment 73 is unconstitutional even though it leaves open the theoretical possibility of elec- tion by write-in vote . . . . 22 E. The Tenth Amendment does not sustain the validity of Amendment 73 . . . . 26 Conclusion . . . . 27 TABLE OF AUTHORITIES Cases: Adams v. Supreme Court, 502 F. Supp. 1282 (M.D. Pa. 1980) . . . . 20 Alex v. County of Los Angeles, 111 Cal. Rptr. 285 (Ct. App. 1973) . . . . 20 American Party of Texas V. White. 415 U.S. 767 (1974) . . . . 22,25 Anderson V. Celebrezze, 460 U.S. 780 (1983) . . . . . ..19, 22, 24 Bullock v. Carter, 405 U.S. 134 (1972) . . . . 26 (III) ---------------------------------------- Page Break ---------------------------------------- Iv Cases-Continued: Page Burdick V. Takushi: 776 P.2d 824 (Haw. 1989) . . . . 23 112 S. Ct. 2059 (1992) . . . . 23 Chamberlain V. Wood, 88 N.VV. 109 (S.D. 1901) . . . . 23 Gomillion V. Lightfoot, 364 U.S. 339 (1960) . . . . 23 Guinn V. United States, 238 U.S. 347 (1915) . . . . 23 Hawke v. Smith, 253 U.S. 221 (1920) . . . . 27 Hopfmann V. Connolly, 746 F.2d 97 (lst Cir. 1984), vacated, 471 U.S. 459 (1985) . . . . 25 Joyner V. Mofford, 706 F.2d 1523 (9th Cir.), cert. denied, 464 U.S. 1002 (1983) . . . . 20 Lane v. Wilson, 307 U.S. 268 (1939) . . . . 23 Lubin V. Punish, 415 U.S. 709 (1974) . . . . 22, 24 Lucas V. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964) . . . . 16 McCarthy V. Briscoe, 429 U.S. 1317 (1976) (Powell, J., in chambers) . . . . 22, 24 Mistretta V. United States, 488 U.S. 361 (1989) . . . . 16 Oklahoma State Election Bd. V. Coats, 610 P.2d 776 (Okla. 1980) . . . . 20 Oregon V. Mitchell, 400 U.S. 112 (1970) . . . . 21, 22 Powell V. McCormack, 395 U.S. 486 (1969) . . . . 3, 4, 6, 7 8, 9, 10 Public Citizen., Inc. V. Miller, 813 F. Supp. 821 (N.D. Ga.), aff'd mem., 992 F.2d 1548 (Ilth Cir. 1993) . . . . 25 Roudebush v. Hartke, 405 U.S. 15 (1972) . . . . 19 Signorelli V. Evans, 637 F.2d 853 (2d Cir. 1980) . . . . 20 Smiley v. Helm, 285 U.S. 355 (1932) . . . . 19,21 Smith v. Allwright, 321 U.S. 649 (1944) . . . . 13 State ex rel. Chandler V. Howell, 175 P. 569 (Wash. 1918) . . . . 21 State ex rel. Johnson V. Crane, 197 P.2d 864 (Wyo. 1948) . . . . 21 State ex rel. Watson V. Cobb, 2 Kan. 32 (1863) . . . . 20 Storer v. Brown, 415 U.S. 724 (1974) . . . . 18, 19,20 Tashjian V. Republican Party of Connecticut, 479 U.S. 208 (1986) . . . . 13,24 United States V. Classic, 313 U.S. 299 (1941) . . . . 15, 22, 27 ---------------------------------------- Page Break ---------------------------------------- v Cases-Continued: Page Williams V. Rhodes, 393 U.S. 23 (1968) . . . . 22 Yarbrough, Ex parte, 110 U.S. 651 (1884) . . . . 21 Constitutions and statutes: U.S. Const.: Art. 1 . . . . 3 2, Cl. 2 (Qualifications Clause) . . . . 3 , 4-5, 6, 22 3, Cl. 3 (Qualifications Clause) . . . . 3, 6, 13, 22 3, cl. 7 . . . . 7 4, Cl. 1 (Elections Clause) . . . . 3, 5, 6, 17, 18, 19, 21, 22, 26 6, Cl. 2 . . . . 7 Art. IV . . . . 3 Amend. I . . . . 3 Amend. X . . . . 4, 5, 6, 26, 27 Amend. XIV . . . . 3,7, 22 3 . . . . 7 Amend. XV. . . . 23 Amend. XVII . . . . 5, 13 Ark. Const. Amend. 73 . . . . passim Hatch Act, 5 U.S.C. 7323(a) (3) (SUPP. V 1993) . . . . 20 Nev. Rev. Stat. Ann. 293.270(2) (Michie 1990) . . . . 23 Okla. Stat. Ann. tit. 26, $7-127 (West Supp. 1994) . . . . 23 S.D. Codified Laws Ann. $12-16-1 (Supp. 1994) . . . . 23 Miscellaneous: 17 Annals of Cong. (1807): p. 871 . . . .16 p. 872 . . . . 16 pp. 877-879 . . . .16 pp. 883-884 . . . .17 p. 886. . . .16-17 p. 887 . . . .17 p. 894 . . . . 16 pp. 900-901. . . . 17 pp. 907-909 . . . .17 pp. 912-913 . . . .17 pp. 918-920 . . . .17 VI Miscellaneous-Continued: Page pp. 929-929 . . . . 17 p. 1233 . . . . 16 p. 1237 . . . . 16, 17 139 Cong. Rec. S1146 (daily ed. Feb. 3, 1993) . . . . 17 Debates on the Adoption of the Federal Constitu- tion (J. Elliot cd., reprint 1987) (1888): vol. 2 . . . . 14, 15 vol. 4 . . . . 18 Troy Andrew Eid & Jim Kolbe, The New Anti- Federalism: The Constitutionality of State- Imposed Limits on Congressional Terms of Office, 69 Denv. U. L. Rev. 1 (1992) . . . .16 S. Rep. No. 1, 50th Cong., 1st Sess. (1887) . . . .17 S. Rep. No. 1381, 88th Cong., 2d Sess. (1964 ) . . . .17 The Complete Anti-Federalist (Herbert Storing ed. 1981) : vol. 2 . . . .14 vol. 3 . . . .14 vol. 4 . . . .14 Vol. 6 . . . .14 The Federalist (C. Rossiter ed. 1961 ): No. 15 (Hamilton) . . . . 10, 11 No. 52 (Madison) . . . . 11, 12 No. 53 (Madison) . . . . 15 No. 57 (Madison) . . . . 12 No. 59 (Hamilton) . . . . 11, 18 No. 60 (Hamilton) . . . . 10, 13, 21 The Records of the Federal Convention of 1787 (Max Farrand cd., 1966 rev. cd.): Vol. 1 . . . . 7, 8, 11 Vol. 2 . . . . 8, 9, 10, 18 Gordon Wood, The Creation of the American Republic, 1776-1787 (1969) . . . . 14 ---------------------------------------- Page Break ---------------------------------------- In the Supreme court of the united State OCTOBER TERM, 1994 No. 93-1456 U.S. TERM LIMITS, INC., ET AL., PETITIONERS v. RAY THORNTON, ET AL. No. 93-1828 WINSTON BRYANT, ATTORNEY GENERAL OF ARKANSAS, PETITIONER v. BOBBIE E. HILL, ET AL. ON WRITS OF CERTIORARI TO THE SUPREME COURT OF ARKANSAS BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENTS INTEREST OF THE UNITED STATES This case involves the interpretation of federal constitu- tional provisions that address the composition of the na- tional legislature. The provision under challenge, Amend- ment 73 to the Arkansas Constitution, attempts to impose term limits on the service of Members of the United States House of Representatives and United States Senate by prohibiting the names of long-term incumbent Members from appearing on the ballot. Amendment 73 is incon- sistent with the structure of the federal system in that it effectively makes eligibility for membership in the Con- (1) ---------------------------------------- Page Break ---------------------------------------- 2 gress dependent on regulation by a State. Amendment 73 also impairs the right of voters freely to choose their federal representatives. For these reasons, the United States has a substantial interest in this case. STATEMENT 1. On November 3, 1992, the electorate of Arkansas approved an initiative adopting Amendment 73 to the Arkansas Constitution. Pet. App. 1a.1 The Amendment's preamble provides as follows: The people of Arkansas find and declare that elected officials who remain in office too long become preoccupied with reelection and ignore their duties as representatives of the people. Entrenched incum- bency has reduced voter participation and has led to an electoral system that is less free, less competi- tive, and less representative than the system estab- lished by the Founding Fathers. Therefore, the peo- ple of Arkansas, exercising their reserved powers, herein limit the terms of the elected officials. ld. at 3a-4a. To "limit the terms" of Arkansas' congres- sional delegation, Amendment 73 prohibits long-term in- cumbents from gaining a place on the election ballot. The Amendment specifically provides that any person who has been elected to three or more terms as a Member of the United States House of Representatives from Arkan- sas may not thereafter be "certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to" the House. Id. at 4a. It imposes an analogous restriction on candidates for the United States Senate who have been elected to two or more terms from Arkansas. Id. at 5a. 2. On November 13, 1992, respondent Bobbie E. Hill, on behalf of herself and the League of Women Voters of Arkansas, commenced this action for declaratory relief in the Circuit Court of Pulaski County, Arkansas. Pet. ___________________(footnotes) 1 All references to "Pet. App." are to the Appendix to the Peti- tion for a Writ of Certiorari in No. 93-1456. ---------------------------------------- Page Break ---------------------------------------- 3 App. 5a. The complaint alleged that Amendment 73 is invalid under Article I, Article IV, the First Amendment and the Fourteenth Amendment of the United States Con- stitution, because of the restrictions that it imposes on Arkansas' congressional delegation. Id. at 5a-6a. On September 8, 1993, the circuit court entered a final order resolving the parties' cross-motions for sum- mary judgment, Pet. App. 53a-62a, incorporating con- clusions of law that the court had entered on July 29, 1993, id. at 45a-52a. The court held that Amendment 73 was adopted in violation of Arkansas law, and that the Amendment was also invalid under the Qualifications Clauses of the United States Constitution, Art. I, 2, Cl. 2, and Art. I, 3, Cl. 3. Pet. App. 46a-49a, 53a- 60a.2 3. The Supreme Court of Arkansas, by a divided vote, affirmed in part and reversed in part. Pet. App. 1a-43a. The court unanimously reversed the circuit court's hold- ing that Amendment 73 had not been adopted in accord- ance with state law. By a vote of 5-2, however, the court held that the provisions of Amendment 73 governing congressional incumbents violated the Qualifications Clauses.' A plurality of three justices, relying on the historical background of the Qualifications Clauses and Powell V. McCormack, 395 U.S. 486 ( 1969), concluded that the age, citizenship, and residency requirements set forth in Article I are the exclusive qualifications for congressional service. Pet. App. 12a-13a. The plurality also deter- mined that Amendment 73 could not be upheld as an exercise of the State's power under the Elections Clause, Art. I, 4, Cl. 1, because "[t]he intent and the effect of Amendment 73 are to disqualify congressional incumbents ___________________(footnotes) 2 The court rejected respondents' claims that Amendment 73 violated Article IV of the Constitution and the First and Four- teenth Amendments. Pet. App. 59a, 60a. 3 The court held that Amendment 73 was valid in all other respects. ---------------------------------------- Page Break ---------------------------------------- 4 from further service." Pet. App. 14a-15a. The plurality further concluded that the Amendment could not be up- held as an exercise of power reserved to the States by the Tenth Amendment because the Qualifications Clauses "fix the sole requirements for congressional service." Id. at 15a. Justices Dudley and Brown concurred in the plurality's determination that Amendment 73 violates the Qualifica- tions Clauses. Pet. App. 26a-27a, 41a-42a. Justices Hays and Cracraft dissented. Id. at 33a-35a, 37a-39a. SUMMARY OF ARGUMENT I. The Constitution specifies three qualifications for membership in the Congress-a minimum age, United States citizenship for a minimum number of years, and inhabitancy of the State of election. A review of the debates at the Constitutional Convention and the state ratifying conventions reveals that the Framers intended to preclude Congress from adding to this list of qualifica- tions. See Powell v. McCormack, 395 U.S. 486, 532-541 (1969). II. Petitioners' contention that the Framers denied Congress the power to add membership qualifications to those specified in the Constitution, but did not deny the same power to the States, is contrary to the Framers' design. The Framers believed that the fundamental de- fect of the Articles of Confederation was the failure to establish a direct and immediate relationship between the national government and the people. To ensure that the people would remain connected to the union and devoted to its success, the Framers provided for direct election of Representatives on a biennial basis. By fixing the qualifi- cations for congressional service in the Constitution, the Framers prevented state legislatures from altering the popular character of the House by manipulating its mem- bership. The term limits imposed by Amendment 73 would thus interfere with the people's right freely to elect their Representatives, secured by Article I, Section 2, ---------------------------------------- Page Break ---------------------------------------- 5 Clause 2, and their Senators, secured by the Seventeenth Amendment. III. Petitioners contend that Amendment 73 may be upheld as a valid exercise of state power under the Elec- tions Clause. Art. I, 4, Cl. 1, which provides that the "Times, Places and Manner of holding Elections for Sen- ators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." The primary purpose of the Elections Clause, however, was to restrict state power, because the Framers were concerned that the States might use election powers to subvert the national government. The Elections Clause authorizes States to impose general ground rules to pre- serve the integrity of the electoral process, but Amend- ment 73 is not such a rule. Its aim and effect are to prevent a specific class of individuals (long-term incum- bents ) from winning elections. Moreover, because the Elections Clause grants Congress a power coextensive with that of the States, petitioners' theory would effec- tively give Congress the power to impose qualifications on its Members, even though the Framers specifically de- prived Congress of that power. Petitioners' argument that Amendment 73 is not a qualification because it theoretically pen-nits the write-in election of persons ex- cluded from the ballot is not persuasive, because the unquestioned intent and virtually certain effect of Amend- ment 73 are to prevent the reelection of the incumbents excluded from the ballot. IV. The Tenth Amendment also provides no authority for States to impose congressional term limits. If the Qualifications Clauses established an exclusive list of re- quirements for congressional service and deprived the States of the power to add any other qualifications, then the Tenth Amendment cannot authorize the States to add to this list. Moreover, because the Congress did not exist prior to the ratification of the Constitution and the creation ---------------------------------------- Page Break ---------------------------------------- 6 of the federal government, the States can have no "re- served" power to regulate congressional elections. ARGUMENT AMENDMENT 73 ADDS TO THE QUALIFICATIONS FOR CONGRESSIONAL SERVICE SET FORTH IN THE CONSTITUTION AND IS THEREFORE INVALID Neither the United States Congress, nor either of its Houses, can constitutionally impose term limits upon Sen- ators or Representatives by restricting membership in either House to persons who have not already served a certain number of terms. In Powell v. McCormack, 395 U.S. 486, 522 ( 1969), the Court held that the Houses of Congress are "without authority to exclude any person, duly elected by his constituents, who meets all the require- ments for membership expressly prescribed in [Article I, Section 2, Clause 2, or Article I, Section 3, Clause 3, of] the Constitution." (Emphasis omitted. ) A term-limits provision that disqualified any person from being seated in either House because of prior service would imper- missibly impose qualifications of service beyond those set forth in Article I, Section 2, Clause 2, and Article I, Section 3, Clause 3. Petitioners contend, however, that a term-limits provi- sion can nevertheless be constitutional if it is imposed by a State. Petitioners argue that Amendment 73 to the Arkansas Constitution is constitutional because (a) Arti- cle I, Section 2, Clause 2, and Article I, Section 3, Clause 3, restrict only Congress's power, and not that of the States; (b) the States have the power, under the Elections Clause, Art. I, 4, Cl. 1, to restrict incumbents' access to the ballot; (c) Amendment 73 leaves open the theoreti- cal possibility that an incumbent may be reelected by write-in vote, and therefore does not impose a "qualifica- tion" in addition to those established in the Constitution; or (d) the Tenth Amendment reserves to the States the power to limit the length of service in Congress. Each ---------------------------------------- Page Break ---------------------------------------- 7 of these arguments is incorrect, and Amendment 73 is unconstitutional. A. A Term-Limits Provision Would Be Unconstitutional If Imposed By Congress As this Court held in Powell, the Constitutional Con- vention established three qualifications for membership in the Congress-age, citizenship, and inhabitancy of the State of election-and denied to Congress the power to add any further qualifications.4 Among the additional qualifications considered and rejected by the Convention was a term-limits provision. The Virginia Plan, presented to the Convention on May 29, 1787, by Edmund Ran- dolph, proposed several qualifications for membership in the "first branch" of a bicameral legislature, including an unspecified age qualification, the predecessor to the sub- sequent] y adopted clauses restricting service by Members of Congress in the Executive Branch (Art. I, 6, Cl. 2), and a term-limits or rotation provision, which provided that the Members of the first branch would be "incapable of re-election" for an unspecified time after expiration of their term of service. 1 The Records of the Federal Con- vention of 1787, at 20 (Max Farrand cd., 1966 rev. cd. ) [hereinafter Farrand]. The term-limits proposal was unan- imously rejected by the Convention on June 12, before ___________________(footnotes) 4 The Constitution does contain other qualifications for service, such as the disqualification from federal office of persons convicted after impeachment (Art. I, $3, Cl. 7), and the Incompatibility Clause, prohibiting simultaneous service in the federal Execu- tive and Legislative Branches (Art. I, $6, Cl. 2), as well as a disqualification added by the Fourteenth Amendment, prohibiting service by certain persons who had fought for the Confederacy (Amend. XIV, 3). Since these disqualification's were carefully considered by the framers of the provisions and written into the Constitution, they do not suggest a general authority in either Congress or the States to impose additional qualifications. Indeed, they reinforce the point that the exclusive qualifications for office are found in the Constitution itself. See Powell, 395 U.S. at 520 n.41. ---------------------------------------- Page Break ---------------------------------------- 8 the plan of the Convention was submitted to the Com- mittee of Detail. 1 id. at 217. On the motion of George Mason, however, the Con- vention instructed the Committee of Detail to consider the propriety of additional qualifications for membership based on property ownership. 2 Farrand 121-125; Powell, 395 U.S. at 532-533. After considering that proposal, as well as another one to restrict membership in the Con- gress to those persons possessing the qualifications under state laws to be electors (such as sanity, previous resi- dence in the State for a year, possession of real property, or enrollment in the state militia, 2 Farrand 139-140), the Committee reported a plan establishing age, citizen- ship, and residency qualifications for membership in both Houses, 2 id. at 178, 179, and authorizing the Congress to establish additional, uniform property qualifications for membership, 2 id. at 179. No other qualifications were reported out of the Committee. The Convention debated the Qualifications Clauses on August 8, 9, and 10. On August 8, the Convention con- sidered the Committee of Detail's proposal that every Member of the House and Senate must be "a resident of the State in which he shall be chosen." 2 Farrand 178, 179. Roger Sherman proposed that the word "resident" be replaced by the word "inhabitant," which was "less liable to misconstruction." 2 id. at 216. James Madison supported the change, pointing out that, in the Virginia legislature, there had been "[g]reat disputes" over the meaning of the word "resident." 2 id. at 217. Gouver- neur Morris and John Francis Mercer, though opposing any residency requirement, made the same criticism of the term "resident." Ibid. Apparently, the defect of the word "resident," in the view of the Convention, was that it was a legal term, not self-defining but subject to con- struction by the States; Madison suggested, for example, that it might be construed to exclude "persons absent oc- casionally for a considerable time on public or private business." Ibid. Madison preferred a uniform requirement ---------------------------------------- Page Break ---------------------------------------- 9 of inhabitancy in the State at the time of election. The Convention apparently accepted this reasoning, for it unanimously replaced the term "resident" with "inhabi- tant." 2 id. at 218.5 The debates on August 10, which were extensively re- viewed by the Court in Powell, led to the elimination of any additional qualifications for membership in Congress. ",[O]n this critical day the Framers were facing and then rejecting the possibility that the legislature would have power to usurp the `indisputable right [of the people] to return whom they thought proper' to the legislature." 395 U.S. at 535 (footnote omitted). The initial question be- fore the Convention was whether to accept the Committee of Detail's proposal that the Congress be authorized to establish property qualifications for Members. Madison opposed any additional qualification for membership as contrary to republican government; he argued that grant- ing the power to a legislature to regulate the qualifications of its own members could "subvert the Constitution" by undermining the people's right freely to elect their repre- sentatives. 2 Farrand 249-250. Governor Morris countered by proposing "to leave the Legislature entirely at large" in enacting membership qualifications, not limited to property ownership, but Madison opposed that proposal even more strenuously, adverting to the British Parliament's abuses of the power to set its members' ___________________(footnotes) 5 The debates on August 8 are particularly relevant, for they suggest that the Convention was concerned with uniformity of qualifications, and not just the possibility that Congress might ex- pand the list of qualifications (which was debated on August 10). The Convention's rejection of the word "resident" because the word could be variously defined by the States, in favor of the more self-defining word "inhabitant," supports the view that the Framers intended to forbid the States from adding qualifications, especially since the qualification of residency had been a contentious matter in the state legislatures. To contemporary ears, the word "inhabi- tant" may not sound much more self-defining than the word "resi- dent," but the Convention plainly found a significant difference be- tween the two terms. ---------------------------------------- Page Break ---------------------------------------- 10 qualifications. 2 id. at 250; see Powell, 395 U.S. at 535 & n.68. The Convention rejected both Morris's proposed amend- ment, 2 Farrand 250, and the Committee's proposal for property qualifications, 2 id. at 251. The result, as the Court held in Powell, was that the qualifications for membership in the Congress were "defined and fixed in the Constitution, and [were made] unalterable by the legislature." 395 U.S. at 539 (quoting The Federalist No. 60, at 371 (Hamilton) (C. Rossiter ed. 1961)); see also 395 U.S. at 550 ("Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitu- tion, the House was without power to exclude him from its membership." ) (emphasis added). B. The Qualifications Clauses Also Restrict The Power Of The States There is no basis for petitioners' argument that the Constitution limited the power of Congress to add qual- ifications but did not similarly limit the power of the States. Such a power, if permitted to the States, would have fundamentally contravened the Framers' design by making service in the federal Congress dependent on regulation by the States. That power would have allowed the States to interfere with the direct and immediate rela- tionship between the people and the union, on which the success of the federal government was thought to depend. In the Framers' view, "the great and radical vice" of the Articles of Confederation was the "principle of LEGIS- LATION 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). The Framers therefore discarded the nonfederal structure . of the Articles for a national government that "extend[ed] the authority of the Union to the persons of the citizens- ---------------------------------------- Page Break ---------------------------------------- 11 the only proper objects of government." Id. at 109. But the Framers perceived that the state governments might attempt to subvert the connection between the people and the union, and so the question became one of how to ensure that "[t]he people of America [remain] warmly attached to the government of the Union, at times when the particular rulers of particular States * * * may be in a very opposite temper." The Federalist No. 59, at 365-366 (Hamilton). To the Framers, the solution lay in the republican nature of the union, and, in particular, the popular charac- ter of the House of Representatives. As Madison ob- served, "the popular election of one branch of the national Legislature [was] essential to every plan of free Gov- ernment," because, without direct elections, "the people would be lost sight of altogether; and the necessary sym- pathy between them and their rulers and officers, too little felt." 1 Farrand 49-50. The union could be "stable and durable" only if the legislature "should rest on the solid foundation of the people themselves," rather than an intervening electoral body, like the state legislatures. 1 id. at 50. Elections to the House would keep the people devoted to the success of the union, because its doors would be open "to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth." The Federalist No. 52, at 326 (Madison). Thus, the Framers required biennial elections to the House to ensure that the federal Congress would retain "an immediate dependence on, and an intimate sympathy with, the people." Id. at 327. They also prohibited the state legislatures from unduly burdening the right of suffrage in elections to the House, which might undermine the popular quality of the House that was crucial to the effectiveness of the federal govern- ment. See id. at 326 (permitting state legislatures to regulate suffrage for federal House "would have rendered too dependent on the State governments that branch of ---------------------------------------- Page Break ---------------------------------------- 12 the federal government which ought to be dependent on the people alone"). The debates on residency illustrate the Framers' dis- trust of state regulation of qualifications. As discussed supra, pp. 8-9, the Convention adopted a provision re- quiring that every Representative and Senator be an "in- habitant" of the State of election, and rejected the term "resident" as subject to state manipulation. Recognizing a state power to impose term limits would be inconsistent, not only with the Framers' general intent to preclude state interference with the right of the people to choose their federal representatives, but also with the Framers' specific resolution of the residency issue.6 In explaining the Convention's actions, Madison argued that the Convention had ensured the popular character of the House by guaranteeing to the people the right to elect anyone of their choosing to that chamber: 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 qualifi- cation of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people. The Federalist No. 57, at 351. Elaborating on this point, Hamilton refuted the argument that the House would become a tool of the "wealthy and the well-born" by ___________________(footnotes) 6 Although the convention did not discuss state regulation Of qualifications for federal office beyond residency, there is no doubt that the Framers were aware of the possibility that the States would try to regulate the qualifications for membership in the fed- eral Congress. Madison noted this possibility when he observed that the Convention had fixed the qualifications for service in the Constitution, rendering such service immune from regulation by either Congress or the States: "The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more susceptible of uniformity, have been very properly considered and regulated by the convention." The Federalist No. 52, at 326. ---------------------------------------- Page Break ---------------------------------------- 13 pointing out that there was "no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected." The Federalist No. 60, at 370-371 (em- phasis added). According to Hamilton, the Convention had made this abuse impossible, because "[t]he qualifi- cations of the persons who may choose or be chosen * * * are defined and fixed in the Constitution, and are unalter- able by the legislature." Id. at 371? To the Framers, therefore, the fact that qualifications for service in the Congress were fixed by the Constitution ensured that the intended character of the Congress (especially the demo- cratic character of the House) would be preserved.8 The Framers' decision to preclude term limits became a significant point of contention in the ratification debates. 7 Not only did this prohibition of further restrictive qualifica- tions keep the House open to democratic impulses, but, in the Framers' view, it also safeguarded against the possibility that factions, supposedly more likely to be prevalent in state legisla- tures than in Congress, could capture the process of election to the House and use it to their advantage. See The Federalist No. 60, at 367-368 (Hamilton). 8 There is less discussion in The Federalist Papers about qualifi- cations for Senators. Because Senators were to be elected by the state legislatures, the danger that those legislatures could interfere with the people's choice of representatives did not apply to the Senate. With the adoption of the Seventeenth Amendment, how- ever, the Framers' concerns about guaranteeing the people's right to elect their chosen representatives did become applicable to the Senate. Cf. Smith V. Allwright, 321 U.S. 649, 659-660 (1944); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 227 (1986) ("fundamental principle of free electoral choice" was en- shrined in Seventeenth Amendment). Moreover, the Framers did fix the qualifications for senatorial service in the Constitution, see Art. I, 3, Cl. 3, and in doing so, they may have perceived a danger that a state legislature might otherwise try to restrict its successors' choice of Senators. As noted in the text, during the ratification debates, the Federalists opposed compulsory rotation of office for Senators on the grounds that it would deny to state legislatures the opportunity to reelect experienced and qualified Senators and would destabilize the Senate. ---------------------------------------- Page Break ---------------------------------------- 14 Anti-Federalists focused on the absence of compulsory rota- tion of office for Members of Congress as threatening to States and people alike, arguing that Members would re- main permanently in office, detached from sentiment in the state legislatures and among the people in their home States.' Any understanding that the States would be able to impose a rotation requirement on either Representa- tives or Senators was absent from the ratification debate. In the New York ratifying convention, for example, where rotation of office was debated at length, both Melancton Smith and Gilbert Livingston identified rotation of Sen- ators as a chief advantage of the Articles of Confederation over the new Constitution,'" yet neither Robert Livingston nor Alexander Hamilton, the Constitution's principal de- fenders at that convention, even hinted that New York would retain the power, under the Constitution, to impose rotation on its representatives. In fact, the Framers believed that compulsory rotation of office could undermine the effectiveness of the federal government, because (like excessively frequent elections, which they also opposed ) compulsory rotation would pre- vent the federal representatives from developing expertise in the complex task of governing the nation. Madison remarked that "[a] few of the members, as happens in all such assemblies, will possess superior talents; will, by frequent re-elections, become members of long standing; will be thoroughly masters of the public business, and ___________________(footnotes) 9 See Gordon Wood, The Creation of the American Republic, 1776-1787, at 521-522 (1969) ; 2 The Complete Anti-Federalist 283, 290-292, 444-445 (Herbert Storing ed. 1981) [hereinafter Complete Anti-Federalist] ("The Federal Farmer" and "Brutus" objecting to lack of rotation) ; 3 id. at 94 ("Letter by An Officer of the Late Continental Army"; same) ; 3 id. at 162-163 (published dissent of the minority at Pennsylvania ratifying convention; same); 4 id. at 275 ("Observations by a Columbian Patriot"; same). 10 See 6 complete Anti-Federalist 164-165; 2 Debates on the Adoption of the Federal Constitution 287 (J. Elliot cd., reprint 1987) (1888) [hereinafter Elliot's Debates]. ---------------------------------------- Page Break ---------------------------------------- 15 perhaps not unwilling to avail themselves of those advan- tages. The greater the proportion of new members and the less the information of the bulk of the members, the more apt will they be to fall into the snares that may be laid for them." The Federalist No. 53, at 335. Hamilton, at the New York convention, urged that compulsory rota- tion of office actually made representatives less account- able to the people, because the prospect of reelection kept them attuned to the will of the people, whereas "[w]hen a man knows he must quit his station, let his merit be what it may, he will turn his attention chiefly to his own emolument." 2 Elliot's Debates 320. The principle to be drawn from the Convention and ratification debates, therefore, is that "[t]he right of the people to choose [their Members of Congress] * * * is a right established and guaranteed by the Constitution and hence is one secured by it to those citizens and inhabi- tants of the state entitled to exercise the right." United States v. Classic, 313 U.S. 299, 314 (1941). Amend- ment 73 is unconstitutional because it impairs the right of the voters of Arkansas to elect candidates of their choice. Because Amendment 73 was enacted by initiative rather than the Arkansas legislature, it may not appear to pose precisely the same threat to the relationship between the people and the union that the Framers feared. Petitioners do not contend, however, that Amendment 73 is constitu- tional merely because it was adopted by initiative rather than legislation. Moreover, the abridgment of the people's free choice of elected representatives, and the consequent threat to the connection between the people and the na- tional government, are both present in this case. For ex- ample, the majority of voters in one (or more) Arkansas congressional districts may, in the future, wish to reelect their Representatives, but Amendment 73 would effectively prevent them from doing so. Amendment 73 would thus abridge the constitutional right of those Arkansas voters to choose their Members of Congress without regard to ---------------------------------------- Page Break ---------------------------------------- 16 any qualifications for federal office beyond those in the Qualifications Clauses. "A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be." Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 736-737 (1964)7' ___________________(footnotes) 11 Petitioner U.S. Term Limits suggests that the States imposed additional qualifications on Members of Congress at a very early stage. See Br. 25-27. As respondent Hill points out, this sugges- tion is a misleadingly incomplete description of the States' prac- tices in the period immediately after the adoption of the Conven- tion. But even if that assertion were correct as a factual matter, it would not be probative. Given that a key concern of the Framers was that the state legislatures would attempt to interfere with free elections to the federal Congress, actions by those very state legislatures are not reliable indicators of the Framers' intent. In- deed, the States' actions cited by petitioner U.S. Term Limits show that the Framers' fears were justified. Moreover, decisions made by the federal House and Senate support the view that States may not add to the required qualifications of Members of Congress. Cf. Mistretta v. United States, 488 U.S. 361, 398-401 (1989). One of the earliest controversies concerning the qualifications of Members-elect occurred in 1807, when the House of Representatives voted to seat William McCreery of Mary- land, despite his alleged failure to satisfy certain residency require- ments imposed by state law. 17 Annals of Cong. 1233, 1237 (1807). The House Committee on Elections issued a report stating that the Constitution did not "reserv[e] any authority to the State Legislatures to change, add to, or diminish" the qualifications set forth in the Constitution. Id. at 871. During the floor debates, the Chairman of the Committee, Rep. William Findley of Pennsyl- vania, similarly expressed the view that "neither the State nor the Federal Legislatures are vested with authority to add to" the qualifications set forth in the Constitution. Id. at 872. (Rep. Find- Iay had been an Anti-Federalist, and had issued the "Letter by An Officer of the Late Continental Army," referred to in note 9, supra, criticizing the Constitution for its failure to include a rotation provision. See Troy Andrew Eid & Jim Kolbe, The New Anti-Federalism: The Constitutionality of State-Imposed Limits on Congressional Terms of Office, 69 Denv. U. L. Rev. 1, 14 n.72, 33 (1992 ).) See also 17 Annals of Cong. 894 (1807) (Rep. Rowan) ("No power had been given to the State sovereignties to superadd qualifications.") ; id. at 877-879 (Rep. Sturges) ; id. at 886 (Rep. ---------------------------------------- Page Break ---------------------------------------- 17 C. The Elections Clause Does Not Authorize The States To Impose Additional Qualifications Like Term Limits Petitioners contend that Amendment 73 may be up- held as a valid exercise of state power under the Elections Clause, Art. I, 4, Cl. 1, which provides that the "Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations." According to petitioners, Amendment 73 is merely a regulation of the "Manner" of holding elections for Congress. This argu- ment is incorrect for several reasons. First, the argument misperceives the fundamental pur- pose of the Elections Clause, which was designed pri- marily as a. restriction of state power, not a grant of it. The Convention adopted the Elections Clause out of ___________________(footnotes) Joseph Clay) ; id. at 887 (Rep. Smilie) ; id. at 907-909 (Rep. Quincy) ; id. at 912-913 (Rep. Key) ; id. at 918-920 (Rep. Howard) ; id. at 928- 929 (Rep. Desha). But see id. at 883-884 (Rep. Randolph) ; id. at 900-901 (Rep. Love) ; id. at. 1237 (Rep. Barker). In 1887, the Senate seated Charles Faulkner of West Virginia, despite a provision in the West Virginia Constitution that pur- ported to render him ineligible to serve. See 139 Cong. Rec. S1146 (daily ed. Feb. 3, 1993) (statement of Sen. Mitchell). The Senate Committee on Privileges and Elections unanimously concluded that "no State can prescribe any qualification to the office of United States Senator in addition to those declared in the Constitution of the United States." S. Rep. No. 1, 50th Cong., 1st Sess. 4 (1887). In 1964, the Senate seated Pierre Salinger, who had been ap- pointed by the Governor of California to fill a vacancy upon the death of Senator Clair Engle, despite the fact that Salinger had not satisfied the requirement of a state statute that Senators be qualified as electors in California elections. See 139 Cong. Rec. S1146 (daily ed. Feb. 3, 1993) (statement of Sen. Mitchell). In its report recommending that Salinger be seated, the Senate Com- mittee on Rules and Administration stated that "[i] t is well settled that the qualifications established by the U.S. Constitution for the office of U.S. Senator are exclusive, and a State cannot, by constitutional or statutory provisions, add to or enlarge upon those qualifications." S. Rep. No. 1381, 88th Cong., 2d Sess. 5 (1964) . ---------------------------------------- Page Break ---------------------------------------- 18 concern that the States might attempt to undermine the federal government by impeding elections to the Congress; the Elections Clause ensured that Congress could preserve itself whenever such a threat appeared. The Convention did grant the States authority to regulate election proce- dures "in the first instance" (The Federalist No. 59, at 363 (Hamilton )), since state regulation of procedural matters "in ordinary cases, and when no improper views prevail," might be more convenient than federal regula- tion (ibid.). But the purpose of the clause was to de- prive the state legislatures of the "exclusive power of reg- ulating elections for the national government, * * * [which] would leave the existence of the Union entirely at their mercy." Ibid. Second, there is no evidence that the Framers intended the Elections Clause to cover anything more than elec- tion procedures, such as "[w]hether the electors should vote by ballot or viva vote, should assemble at this place or that place; should be divided into districts or all meet at one place, [or] sh[ould] all vote for all the representa- tives; or all in a district vote for a number allotted to the district." 2 Farrand 240 (Madison). Absent from the Convention or ratification debates is any suggestion that the Elections Clause empowered the state legislatures to exclude classes of persons from the ballot, or otherwise to restrict their ability to be elected. See 4 Elliot's De- bates 71 (statement of Mr. Steele at North Carolina rati- fying convention ) ( "[T]he power over the manner only enables them to determine how these electors shall elect- whether by ballot, or by vote, or by any other way."). Such an authority to exclude classes of persons would have given the States the power to impose "qualifications," a power that the Convention intended to deny them. This Court has upheld the authority of the States, under the Elections Clause, to regulate election procedures, and to ensure an orderly and comprehensible ballot. The States have power to "maintain[ ] the integrity of the po- litical process," Storer V. Brown, 415 U.S. 724, 731 ---------------------------------------- Page Break ---------------------------------------- 19 (1974), and to ensure that "some sort of order, rather than chaos, is to accompany the democratic processes," id. at 730. Thus, even in federal elections, States may require that independent candidates "be clear of political party affiliations for a year before the primary," id. at 733, to assure the voters that independent candidates are legitimately independent. States also have broad authority under the Elections Clause to ensure the "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, 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); see also Roudebush v. Hartke, 405 U.S. 15, 25 ( 1972) (States may provide recount procedures in federal elections "to guard against irregu- larity and error in the tabulation of votes"); Anderson v. Celebrezze, 460 U.S. 780, 788 n.9 ( 1983) (States may impose "generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself" ). None of these decisions suggests, however, that the States may use their authority under the Elections Clause for the purpose of preventing the election of a class of persons, defined without reference to their support in the electoral process. Petitioners attempt to draw support from cases such as Storer v. Brown, supra, for that asser- tion, but the States' authority to channel the process by which any candidate can gain access to the ballot cannot be equated to a power to exclude a class of candidates from the ballot entirely. Completely incapacitating a group of persons, defined by their prior experience rather than their ability to attract voter support, from gaining access to the ballot is not an "evenhanded" regulation of "the electoral process itself." The Court in Storer made exactly that point. While upholding California's power to use party primaries "to ---------------------------------------- Page Break ---------------------------------------- 20 winnow out and finally reject all but the chosen candidates," 415 U.S. at 735, thus preventing "sore losers" in the party primary from reappearing on the gen- eral election ballot as independent candidates, the Court emphasized that the party primary "involve[d] no dis- crimination" against true independents (id. at 733), who could gain access to the ballot by the circulation of ballot petitions. In rejecting a Qualifications Clause challenge to the "sore loser" law, the Court noted that California re- quired only that "the candidate win the primary to secure a place on the general ballot or otherwise demonstrate substantial community support." Id. at 746 n. 16. In other words, no candidate was prevented from entering the race to gain a spot on the general election ballot. That ballot was, instead, open to all candidates who demon- strated, by one or another method, that they had sufficient support to survive the "winnowing out" ___________________(footnotes) 12 Some state "resign to run" statutes have withstood scru- tiny under the Qualifications Clauses, but only where the State regulates the conduct of state officials while they choose to remain in state office. See Joyner V. Mofford, 706 F.2d 1523, 1528-1531 (9th Cir.), cert. denied, 464 U.S. 1002 (1983) ; Signorelli v. Evans, 637 F.2d 853, 858-863 (2d Cir. 1980) ; Adams V. Supreme Court, 502 F. Supp. 1282, 1291 (M.D. Pa. 1980) ; Oklahoma State Election Bd. v. Coats, 610 P.2d 776, 778-780 (Okla. 1980) ; Alex v. County of Los Angeles, 111 Cal. Rptr. 285, 293-294 (Ct. App. 1973) ; see also State ex rel. Watson V. Cobb, 2 Kan. 32, 58 (1863) (State "cannot interfere with the tenure of [federal] office," al- though it can declare state offices vacant when incumbent has been elected to federal office). The principle of these decisions is that the States have a legitimate interest in ensuring that their officeholders pay full attention to their state positions, and not simultaneously hold (or run for) other positions. Resign-to-run laws are intended as a qualification for service in the state office, not the fed- eral Congress, and the would-be candidate can always avoid the bar by resigning the state position. Similarly, the Hatch Act, 5 U.S.C. 7323(a) (3) (SUPP. V 1993), which Prohibits federal em- ployees from running as candidates or nominees for partisan political office (including the House and Senate), constitutes a regulation of the federal civil service, not the federal Congress, ---------------------------------------- Page Break ---------------------------------------- 21 Petitioners also overlook the fact that, if the Elections Clause gives the States the power to impose term limits, then it must give Congress the same power, since, under that clause, Congress "may at any time by Law make or alter" similar regulations. Art. I, 4, Cl. 1, See Smiley v. Helm, 285 U.S. at 367; Ex parte Yarbrough, 110 U.S. 651 ( 1884). But the Framers clearly denied to Congress the power to establish additional qualifications (including term limits ) for Representatives and Senators. In refut- ing the argument that the Congress might abuse its power under the Elections Clause to establish arbitrary qualifi- cations for office, Hamilton thus relied squarely on the fact that the limited powers conferred by the Elections Clause did not include a power to set qualifications: Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature. The Federalist No. 60, at 371.'3 By giving to Congress, through the back door of the Elections Clause, a power ___________________(footnotes) in that it requires civil servants to place the interest of their federal employment ahead of their political ambitions, for as long as they retain their civil service positions. On the other hand, the courts have struck down provisions that disqualify state officials from running for federal office during the entire term to which they were appointed or elected, even if the state officeholder resigns to run. See State ex rel. Johnson V. Crane, 197 P.2d 864 (Wyo. 1948) ; State ex rel. Chandler V. Howell, 175 P. 569 (Wash. 1918). Because, in those cases, the candidate is dis- qualified for the entire term of state service, even if he or she re- signs, such a bar exceeds the State's interest in regulating its own officeholders. 13 There may be some question whether this remark by Hamilton was entirely accurate, in that the Convention may not have denied to Congress the power to alter the qualifications of electors in federal elections, only the qualifications of those who might be elected. See Oregon V. Mitchell, 400 U.S. 112, 122-123 (1970) ---------------------------------------- Page Break ---------------------------------------- 22 that the Convention denied to it through the Qualifications Clauses, petitioners' argument contravenes the Framers' design. D. Amendment 73 Is Unconstitutional Even Though It Leaves Open The Theoretical Possibility Of Election By Write-in Vote Petitioners contend that Amendment 73 is not a qualifi- cation because those excluded from the printed ballot are not absolutely prohibited, as a matter of law, from being elected; they retain the theoretical possibility of being elected by write-in vote. This argument ignores reality. The Court has recognized that exclusion from the ballot is, in all practical effect, exclusion from election. See Anderson v. Celebrezze, 460 U.S. at 799 n.26; Lubin V. Punish, 415 U.S. 709, 719 n.5 ( 1974); United States V. Classic, 313 U.S. at 3 13; see also McCarthy v. Briscoe, 429 U.S. 1317, 1323 ( 1976) (Powell, J., in chambers); cf. Williams v. Rhodes, 393 U.S. 23, 31 (1968) ("The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes."). "The Constitution requires that access to the electorate be real, not `merely theoretical.' " American Party of Texas v. White, 415 U.S. 767, 783 ( 1974) (cita- ___________________(footnotes) (opinion of Black, J.) (suggesting Elections Clause gave Congress power to set voters' qualifications) ; cf. id. at 142-143 (opinion of Douglas, J.) (arguing that Fourteenth Amendment gave Con- gress power to regulate suffrage in federal elections) ; id. at 231 (opinion of Brennan, White, and Marshall, JJ.) (same). But even if Hamilton did misstate the Convention's position on the specific point of electors' qualifications, that does not cast doubt on this Court's holding in Powell that the Framers specifically deprived Congress of the power to add qualifications for service by Members beyond those established by Article I, Section 2, Clause 2, and Article I, Section 3, Clause 3. No analogous constitutional pro- vision denies Congress the power to regulate the suffrage in fed- eral elections, Petitioners' construction of the Elections Clause would eviscerate the holding of Powell by allowing Congress to enact legislation, pursuant t o the Elections Clause, to exercise a power specifically denied it by the Framers. ---------------------------------------- Page Break ---------------------------------------- 23 tion omitted). As far as we are aware, only one Senator and four Representatives have been elected by write-in vote in this century. See J.A. 201-202. Although petitioners recognize the near-impossibility of election by write-in vote, they argue that Amendment 73 does not impose an unconstitutional "qualification" be- cause, in a few scattered instances, Amendment 73 may not have its intended effect of preventing the election of one who has previously served a certain number of terms 14 Petitioners do not contest, however, that both the intended purpose and the virtually certain effect of Amendment 73 are to prevent the election of candidates who have served their "limit." While the technical terms of Amendment 73 were evidently designed to circumvent the restrictions on state power imposed by the Qualifications Clauses, the conclusion is "irresistible, tantamount for all practical purposes to a mathematical demonstration" (Gormillion v. Lightfoot 364 U.S. 339, 341 ( 1960)), that it will have the same effect as an outright disqualification in almost every instance, Cf. Lane v. Wilson, 307 U.S. 268, 275 ( 1939) (Fifteenth Amendment bars "onerous procedural requirements which effectively handicap exercise of the franchise * * * although the abstract right to vote may remain unrestricted"); Guinn v. United States, 238 U.S. 347, 365 (19 15) (in case involving "grandfather clause" exemption from literacy test for suffrage, "we seek in vain for any ground which would sustain any other interpreta- tion but that the provision] recurr[ed] to the conditions existing before the Fifteenth Amendment was adopted"). ___________________(footnotes) 14 Moreover, although Arkansas permits write-in voting, at least four States do not. See Burdick v. Takushi, 776 P.2d 824, 825 (Haw. 1989) (interpreting Hawaii election laws to prohibit write-in voting) ; Chamberlin V. Wood, 88 N.W. 109, 110-112 (S.D. 1901) (holding that write-in votes could not be counted under South Dakota's Australian ballot law (S.D. Codified Laws Ann. $12-16-1 (Supp. 1994)) ; Nev. Rev. Stat. Ann. 293.270(2) (Michie 1990) ; Okla. Stat. Ann. tit. 26, 7-127 (West Supp. 1994). States are not constitutionally required to provide an opportunity for write-in voting. Burdick V. Takushi, 112 S. Ct. 2059 (1992). ---------------------------------------- Page Break ---------------------------------------- 24 To be sure, incumbents seeking reelection or those who have previously served in Congress are more likely to be known to voters than are other candidates. The disabili- ties imposed by write-in voting, however, are not limited to name recognition. Through a place on the ballot, a candidate demonstrates that he or she has "the requisite community support," McCarthy v. Briscoe, 429 U.S. at 1323 (Powell, J., in chambers), and is therefore a serious candidate for the office. Cf. Lubin v. Panish, 415 U.S. at 715 (noting legitimate state interest in "ballots * * * limited to serious candidates with some prospects of pub- lic support" ). Ballot status may also demonstrate to the voters that the candidate has received the endorsement of, or at least substantial support from, the machinery of a political party, which can then be expected to cooperate with the candidate after the election to effectuate his or her program." In addition, without a spot on the ballot, "[volunteers are more difficult to recruit and retain, media publicity and campaign contributions are more diffi- cult to secure, and voters are less interested in the cam- paign." Anderson v. Celebrezze, 460 U.S. at 792. Candi- dates forced to seek election through write-in votes are denied credibility in the voters' eyes, and by relegating a class of candidates to write-in status, Arkansas signals to its voters that a vote for those candidates is a throw-away vole."; In any case, the avowed purpose of Amendment ___________________(footnotes) 15 Indeed, Amendment 73 may impair the rights of political par- ties to advance the reelection of their incumbent officeholders. Cf. Tashjian, 479 U.S. at 221-222. If a party wished to support the reelection of an incumbent excluded from the ballot by Amendment 73, that provision would force the party to choose between (a) nominating no one for the general election ballot and relying on write--in votes, thus forfeiting its ballot position for that general election and perhaps also endangering its ballot position for elec- tions in the future, and (b) nominating someone to hold a place on the ballot, but running the risk of splitting votes between the nominee on the ballot and the incumbent, the party's real choice. 16 Two lower court decisions suggest that the ability to run a write-in campaign can be sufficient to turn what would otherwise ---------------------------------------- Page Break ---------------------------------------- 25 73 is to "limit the terms" of Arkansas Members of Con- gress, and that purpose, coupled with the likely effect in almost every election contest to which it would apply, is sufficient to establish its unconstitutionality. Even if Amendment 73 could somehow be viewed as a procedural ballot-access provision rather than a qualifica- tion, it would nevertheless be unconstitutional because it is not rationally related to any legitimate state interest. The stated purpose of the Amendment is to prevent the election of candidates who, it is feared, will have the greatest support among the electorate. This is not "even[ing] out the playing field," as petitioner Bryant con- tends (Br. 26), but, rather, attempting to prevent a group of persons from playing at all. To argue that Amendment 73 does not establish a qual- ification for office, petitioners are forced to concede that incumbents may be legitimately elected, notwithstanding Amendment "/3, yet they wish to prevent that fact fran being disclosed to the voters of Arkansas on the printed ballot. In this respect, the present case resembles the absentee ballot practice struck down in American Party of Texas v. White, 415 U.S. at 794-795. There, the Court held that Texas could not deny a position on the absentee ballott to candidates of parties that had qualified to appear on the general election ballot. Since there was no legiti- mate reason to deny absentee voters the opportunity to vote for candidates who had qualified for the ballot, the absentee ballot practice was struck down as "an arbitrary discrimination violative of the Equal Protection Clause." [d. at 795. ___________________(footnotes) be an impermissible "qualification" into a permissible "ballot- access restriction. " Hopfmann V. Connolly, 746 F.2d 97, 102-103 (lst Cir. 1984); vacated on other grounds, 471 U.S. 459 (1985) (per curiam) ; Public Citizen, Inc. V. Miller, 813 F. Supp. 821, 831- 833 (N.D. Ga.). aff'd mem., 992 F.2d 1548 (llth Cir. 1993). Both cases, however, involved procedural election regulations, and the discussion of write-in voting was unnecessary to the decisions. ---------------------------------------- Page Break ---------------------------------------- 26 In the present case, petitioners concede that incumbent officeholders may be qualified to be reelected, yet the pur- pose of Amendment 73 is to keep that information from the voters. If so, the Amendment is aimed, not at prevent- ing "the clogging of [the ballot to] avoid voter confusion," Bullock v. Carter, 405 U.S. 134, 145 (1972), but at creating voter confusion by misleading voters as to the identity of legitimate candidates. Nor could Amendment 73 be upheld as an effort to "assume that the winner is the choice of a majority, or at least a strong plurality, of those voting," ibid., since the likely and intended effect of the Amendment would be to prevent the election of candidates with substantial support. There is no basis for holding that fostering voter confusion about the iden- tity of legitimate candidates or preventing the election of popular ones is a permissible state objective. E. The Tenth Amendment Does Not Sustain The Validity Of Amendment 73 Finally, petitioners contend that Amendment 73 is a legitimate exercise of power traditionally exercised by the States, and reserved to the States by the Tenth Amend- ment. The Tenth Amendment, however, provides that "powers not * * * prohibited by [the Constitution] to the States, are reserved to the States." (Emphasis added. ) Because the Qualifications Clauses prohibit both Congress and the States from adding qualifications to service in Congress, the Tenth Amendment has no application here. In addition, it is doubtful that state power over fed- eral elections was considered by the Framers to be among the sovereign powers "reserved" to the States by the plan of the Convention and the Tenth Amendment. The fed- eral Congress did not exist before the Constitution, and the authority of the States to regulate federal elections to the Congress stems from the power delegated to the States by the Constitution itself, in the Elections Clause, and not from their previous existence as otherwise sovereign ---------------------------------------- Page Break ---------------------------------------- 27 entities. Cf. Hawke v. Smith, 253 U.S. 221, 230 ( 1920) (state authority to ratify constitutional amendments "has its source in the Federal Constitution" and not the gen- eral reserved powers of the States). As this Court has noted, "[w]hile, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, this statement is true only in the sense that the states are authorized by the Con- stitution, to legislate on the subject as provided by 2 of Art. I" United States v. Classic, 313 U.S. at 315 (citations omitted). The Tenth Amendment therefore could not "reserve" to the States the power to regulate elections to the new federal legislature. CONCLUSION The judgment of the Supreme Court of Arkansas should be affirmed. Respectfully submitted. DREW S. DAYS, III Solicitor General WALTER DELLINGER FRANK W. HUNGER Assistant Attorneys General PAUL BENDER Deputy Solicitor General PAUL R.Q. WOLFSON Assistant to the Solicitor General DOUGLAS N. LETTER MICHAEL S. RAAB Attorneys OCTOBER 1994 *U.S. GOVERNMENT PRINTING OFFICE; 1994 301157 86219