Donald James Gralike v. Rebecca M. Cook

MсMILLIAN, R. In November 1996 the voters of Mis- Before FLOYD HANSEN, Article passed souri amendment to VIII Judges. and Circuit GIBSON (hereinafter of the Missouri Constitution McMILLIAN, Judge. Circuit “Amendment”) “Missouri Amendment” or Cook, in to limit the number of terms individual Appellant Rebecca McDowell Congress. in the United capacity Secretary her official of State serve States Missouri, appeals congres- seeks to limit from The Amendment State service to three terms the House final order entered the United States sional Representatives of of and two terms District Court1 for Western District VIII, summary MO. CONST. Art. granting judgment Senate.3 See Bartlett, writing opinion, of the of this the initia 1. The Honorable D. Brook As Arkansas, Colorado, Idaho, Maine, Judge Western District tives in Nebraska, States District for the Dakota, of Missouri. South and Missouri have been invalidated in federal and state courts on order, various and federal constitutional 2. In this the District Court referred to Moore, order, grounds. See Miller v. 169 F.3d 1119 January F.Supp. its (W.D.Mo.1998), (Nebraska (8th Cir.1999) initiative invalidated legal analysis support- for the grounds); ing on Article V and to vote Bark that the was un- its decision amendment Hazeltine, I, (D.S.D. F.Supp.2d Speech, Free er v. constitutional on Article Arti- V, 1998) V, (invalidated vagueness grounds. and on Article First Amend cle ment, Debate, Speech Due Process grounds); League Women Voters Maine v. 3. Similar initiatives were on ballot (in (D.Me.1997) Gwadosky, other in November thirteen Alaska, Arkansas, Colorado, Idaho, Maine, states grounds); V Donovan validated on Article v. Priest, (1996) (a Nebraska, Ark. S.W.2d 119 Nevada and South Dakota voters initiatives, Montana, pre-election challenge, initiative invalidated approved the while in Colorado, Dakota, Morrissey Wy grounds); V Oregon, Washington, and on Article North Pear, (Colo.1998) (invalidated oming they rejected on Arti them. See Robert 951 P.2d 911 Cenarrusa, grounds); Simpson The States—The In itiat cle V The 1996 Elections: ives, (1997) Times, (invalidated N.Y. at B7. Idaho 944 P.2d 1372 Nov. I support pledge term limits and to use goal, this § 16. To achieve my legislative powers all to enact the members of Missouri’s orders proposed Constitutional Amendment set use their au- delegation to congressional If forth the Term Limits Act of 1996. amend the United States Consti- thority to elected, pledge way I to vote in such a §in the term limits impose tution to designation “DISREGARDED § See id. Congressional service. TERM VOTERS’ INSTRUCTION ON Representative or Senator If a Missouri appear adjacent my LIMITS” will not order, comply with this the Mis- fails to name. the label Amendment dictates souri 18(3). § INSTRUC- “DISREGARDED VOTERS’ For both incumbent and non-incumbent printed be TERM LIMITS” TION ON candidates, the Missouri Amendment re- on all his or her name ballots next Secretary of quires the State decide Id. The Missouri during the next election. printed whether a label will be on the comply a failure to Amendment defines public and to consider comment in ballot (1) failure to vote with the instructions as: making that id. determination. limit amendment con- in favor of a term 19(1-4). § It allows individual voters (2) failure to second forming appeal Secretary of State’s decision lacking; pro- if failure to a second print by not to the label a candidate’s bring to a vote a term pose or otherwise directly Supreme name to the Missouri 16; § conforming with limit amendment Court, Secretary in which case the of State (4) favorably on to failure to vote measures produce and convincing must clear evi- commit- bring such an amendment before dence that the candidate conformed with (5) tee; all against failure to vote measures It pledge. the initiative or took the also table, prevent a vote delay, or otherwise candidate, permits Secretary whom (6) to vote body; against the full failure appear decides shall have the label of State allowing longer amendments terms Con- ballot, next to his or her name on the (7) allows; § than gressional service decision to Su- appeal this the Missouri sponsoring cosponsoring an amendment Court, preme in which case the candidate §in and longer terms than those produce convincing clear and evi- must all on term failure to ensure that votes printed why the label should not be dence to the limits are recorded and аvailable 6). 19(5, § In id. addi- on the ballot. See public. See id. tion, automati- the Missouri Amendment repeals if and when the United cally itself non- requires The Missouri Amendment amended to conform States Constitution is pledge to take a incumbent candidates § § 16 term limits. id. 20. with the See authority to amend the United use Supreme grants It also the Missouri Court impose Constitution to the term States jurisdiction challenges to hear original § if It orders that limits in elected. Finally, §id. the Amendment. See pledge have the those who do not take severability contains a clause. See id. TO label “DECLINED TO PLEDGE § 22. printed next SUPPORT TERM LIMITS” passage, appellee

to their names on the ballot. Id. 18. To after its initiated Soon ballot, being labeled on the non- in federal district court chal avoid this action on sev lenging must take the fol- the Missouri Amendment incumbent candidates Ap grounds. eral federal constitutional lowing pledge: Amendment, passed initiative was Speech and Debate Yet another similar on First Clause, Supreme grounds.); June Court In California in and state constitutiоnal Question V and California invalidated it on Article re Initiative Petition No. State (Okla.1996) (invalidat Bramberg grounds. initiative law See No. P.2d 186 Iones, 86 Cal. V Cal.4th ed on Article and state constitutional (Cal.1999). Rptr.2d P.2d 1240 grounds). pellee currently porting grant summary a member of the its decision to is not he congressional delegation, judgment plaintiff-appellee. but Judgment the third district was a candidate for Con appellee, appellant was entered for and and gressional seat has issued timely appealed. run

declaration of his intent for the same seat in 2000. The district court is II. DISCUSSION three memorandum orders address sued grant summary We review decisions to parties. In ing different motions novo, judgment reviewing de the facts in order, the district court denied in first light most favorable to non-moving part part appellant’s mo granted party. See Barnhart v. In- UNUM dismiss, finding appellee tion to that did Life America, surance Co. 179 F.3d sue, require did meet the standing have (8th Cir.1999). grant will affirm a relief, We injunctive appellant ments for if, summary judgment light viewed in the prоtected by Eleventh was not Amend most favorable to the non-moving party, no immunity, the court need not genuine issue of material fact judgment abstain from since no exists and there were law, party the moving judgment is entitled to questions unanswered of state See, certify questions e.g., Hughes that the court need not as matter of law. Supreme federal law to Missouri Corp., Court Ortho Pharmaceutical 177 F.3d (8th Cir.1999). since that court has held that it lacks jurisdiction questions.4 over such (W.D.Mo. Cook,

Gralike v. A. AMENDMENT FIRST 1998) (Gralike I). order, its second Appellant argues that the district granted part district court and denied holding court erred in part appellant’s motion to dismiss for fail Amendment violates the First Amendment claim; appellant’s ure to denied First, guarantee speech. of free she ar appellee’s motion to dismiss claims that that, gues because the Missouri Amend the Missouri Amendment violates Article imposes no sanction on candidates I, V, the and Article and First Fourteenth Congress United States for failure to Amendments of the United States Consti speak, the district court erred in conclud tution, granted but her motion to dismiss ing that compels the Missouri Amendment appellee’s claim that 21 of the Missouri Second, or speak. coerces candidates to Supremacy Amendment violates the argues she that the district court should Clause of the United States Constitution. id., (W.D.Mo.1998) analyzed not have the Missouri Amend F.Supp. See 996 901 (Gralike II). review, scrutiny ment under strict In its final order in but this case, ‍‌​​​‌‌‌​​​‌‌​‌‌‌‌​‌​​‌‌‌​‌​​‌​‌​​‌‌​​‌​​‌‌‌‌‌‌​​‍the district court rather should have balanced granted appellee’s candidates’ right keep summary judgment motion for on Arti to their views on term his limits I, V, cle Article and First secret the Amendment with electorate’s to know Claims; Furthermore, the district court did not the reach views of candidates. plaintiff-appellee’s out, Due vagueness points Process she the Amendment was the election, claim because it determined that popular the other result of a and the courts dispose three claims were sufficient to of especially should be careful when consider id., F.Supp. case. See 996 917 ing legislation passed by democracy. direct (W.D.Mo.1998)(Gralike III). agree district We district court’s well- court, III, in Gralike upon analysis, reject relied its earlier reasoned appellant’s and analysis order in Gralike II for sup arguments. 13, (Mo.

4. The July 1990)(refusing accept District Court cited Zeman v. V.F. Fac Outlet, Inc., 107, tory (1990) courts)). questions by 911 F.2d 108-09 certified federal Cook, 889, (discussing Supreme Court’s or Gralike v. (W.D.Mo. 1998) (Gralike I). Outlet, Inc., Factory der in Zeman v. V.F. No. prescribe poli- shall what be orthodox speech Compelled nationalism, tics, religion, or other matters that the First It well established is opinion of or force citizens to confess Constitu to the United States Amendment therein.”). word or act their faith Since which re only state action tion bars not Wooley, Supreme Court has reaffirmed expression free but also state action stricts prohibition compelled speech on compels speak individuals to or ex apply refined it to to cases which the point Wooley of view. See press a certain speech government types orders certain of 705, 714, 97 S.Ct. Maynard, v. U.S. speech topics. For about certain exam- 1428, (Wooley); 51 L.Ed.2d ple, Riley v. Nat’l Fed. the Blind of Education v. Virginia State Board West Carolina, 786, Inc., 781, North 487 U.S. Barnette, 1178, 319 U.S. 63 S.Ct. (1988), 108 S.Ct. L.Ed.2d 669 (1943) (Barnette); see also 87 L.Ed. 1628 on Court invalidated First Tornillo, Publishing v. Miami Herald Co. which, grounds a North Carolina law 2831, 41 L.Ed.2d 94 S.Ct. professional among things, required other 730(1974) (Miami Herald); Scope cf. donations, raisers, soliciting fund before City, Kansas 140 F.3d City Pictures v. portion they disclose what donations 1201(8th Cir.1998); States v. Sin they turned over to the charities for which Cir.1995). (8th Moreover, del, 53 F.3d 874 preceding solicited twelve months. upon expression burden freedom “[t]he law The Court concluded the state where, here, particularly great prohibition violated the First Amendment compelled speech public context.” state-compelled speech because “[t]he Ass’n, 500 Faculty Lehnert v. Ferris pre- Amendment mandates that we First L.Ed.2d 572 speakers, government, not the sume hold that the Missouri Amеnd We say what want to know best both attempt impermissible ment is end, say govern- it .... To this how compel candidates State Missouri judgment ment ... not substitute its limits. express point of view on term speak speak- for that of as to how best Hazeltine, F.Supp.2d Accord Barker ....” ers and listeners Id. (Barker) (invali (D.S.D.1998) 1088, 1096 also Gas & Electric see Pacific dating nearly identical term limit initia Utilities Comm’n Co. v. Public of Califor- passed in South Dakota on First tive nia, 14-16, 106 S.Ct. part); Simpson grounds, Gas)(“the (1986)(Pacific L.Ed.2d 1 State Cenarrusa, P.2d 130 Idaho appellant’s to restrict is not free either )(invalidating (Simpson 1375-76 topics or views or to speech to certain limit in Idaho similar’ term initiative on respond to to views that appellant force among other grounds, First Amendment speak .... choice to others hold [T]he grounds). it of what to includes within the choice not Wooley, Supreme the Court invalidat- ....”). say Hampshire the conviction of a New ed compels can- the state motto “Live The Amendment couple who covered Missouri First, speak limits. platе, or Die” on their license con- didates to about term Free speak to in attempts freedom of it to force candidates cluding right that “the by threatening favor of term limits them thought protected by the First Amend- they if fail to do so. action includes both the with the ballot label against Second, speak if to in freely right to a candidate refuses right speak to limits, on the favor of term the label ballot speaking refrain from at all.” 1428; Barnette, speak opposition him her to in to see also 319 forces or (“If that he or she by noting the Amendment 63 S.Ct. 1178 there is to the voters’ wishes. Either failed follow fixed star in our constitutional constella- not tion, official, Amendment does high petty, way, or can the Missouri it is that no Contrary appellant’s to silent on the to allow candidates remain contentions only provide information about labels issue, type of precisely which is state- views, the candidates’ the labels do far compelled speech which violates the First more than voters of a candidates’ advise First, speak. to not opposition to term limits.5 The labels are topic Amendment selects the ' phrased way likely such to Second, public term limits. it debate: (and give give) we believe calculated to position: approved favoring chooses an negative impression of a labeled Third, provides term limits. the actual limits, candidate’s views on term also but words which non-incumbent candidates of his or her commitment and accountabili speak: pledge. Finally, shall in the Moore, ty to her his or constituents. See attempts compel speech event to its Barker, 169 F.3d at accord fail, favor of term limits 1094-95; F.Supp.2d at League Women provides a mechanism com- to Gwadosky, Voters Maine v. pel speak opposition: candidates to 52, 59-61 (D.Me.1997)(Gwadosky); Dono ballot labels. Priest, van v. 326 Ark. (Ark.1996) (Donovan); 5.W.2d Mor Appellant attempts distinguish State, (Colo. rissey v. 951 P.2d

Missouri Amendment from other com 1998) (Morrissey). The non-incumbent la pelled speech by arguing cases bel “DECLINED TO PLEDGE TO SUP compel Missouri Amеndment does not LIMITS,” in light PORT TERM of the speech imposes because it no criminal or preamble § 16 of the Amendment monetary refusing speak. sanction for people which state that of Missouri limits, desire term Rather, indicates a candi only possible sanction the Mis promise date so labeled refused to to do souri impose, appellant Amendment could people’s bidding. The incumbent label argues, exposure is the of candidates’ “DISREGARDED VOTERS’ INSTRUC views record on term limits. We and/or that, TION TERM ON LIMITS” indicates matter, disagree. As a threshold we note term, during preceding the candidate concept compelled speech has failed to act accordance with his or her never been limited to those cases which constituents’ implies wishes. Each label impose speech the state or compel seeks that a labeled candidate cannot be trusted through threat of financial or criminal carry people’s out the bidding, which See, Herald, e.g., sanction. Miami 418 turn casts suitаbility doubt his or her (“Even U.S. at if S.Ct. 2831 Congress. serve in newspaper would face no additional costs pejorative nature of the labels is comply [compel ... the Florida statute heightened by the fact that there are no ling speech] fails to clear the barriers of labels for pledge candidates who take the ....”). the First Amendment Neverthe comply with the mandates of 17 while less, we believe that the Missouri Amend in only office. The “information” the Mis- ment in fact penalty threatens a that is souri Amendment adds to the ballot is enough compel serious candidates to derogatory labels for candidates who do speak potential political damage of Furthermore, —the requires. not do what it Moore, the ballot labels. v. See Miller 169 particularly labels are harmful because 1119, 1125(8th Cir.1999) (Moore); F.3d ac ballot, they appear on the an official docu- Barker, F.Supp.2d Thus, cord 3 at produced 1094-95. by the state.6 question 5. Thus the the label whether is label that advises the voters of the damаging purported opposition. does not turn so much on the im- candidate's pact of voter reaction to the fact that a candi- limits, opposes supports Moreover, date ap- or term appear the labels at the critical pellant suggests, language voting, during but more so on the instant of which the labeled

919 Gas, 8, 106 475 at protected.” U.S. an official denunciation appear to be labels Pacific reject sug appellee’s Thus we singled are out S.Ct. 903. who candidates of certain speak public ‍‌​​​‌‌‌​​​‌‌​‌‌‌‌​‌​​‌‌‌​‌​​‌​‌​​‌‌​​‌​​‌‌‌‌‌‌​​‍candidates for office are gestion failure to that for their pro First Amendment or take all action afforded diminished term limits favor of Moore, F.3d at 1125 requires. § tections.

(“[the] place the effectively labels ballot ... disapproval Scrutiny on stamp Application official of Strict

state’s be- the state disfavors whom [candidates] Appellant argues also the dis political single on a their views cause scrutiny applying strict trict court errеd Barker, issues...”); F.Supp.2d accord constitutionality analysis to determine 61; Dono- 1094, F.Supp. at Gwadosky, 966 Amendment. She con of the Missouri (“[the van, 370, 931 S.W.2d 326 Ark. court the district should tends instead officially to an sanc- equivalent are labels] upheld applied “balancing a test” and have by the State... recommendation tioned right since the electorate’s the Amendment because such candidates to vote for on term limits to know candidates’ views the instructions they disregarded that of candidates remain outweighs voters”). The labels ballot wishes Appellee’s issue. Brief at silent on the sanction, which believe a are serious (hereinafter Br.”). “App. disagree. We speak out candidates to to coerce sufficient correctly determined The District Court rather risk the limits than of term favor subject that the Missouri Amendment with be- consequences associated political First, as discussed scrutiny review. strict Moreover, the the ballot. ing labeled on above, burdens candi- the Amendment appears the ballot the label on fact that expression by free compel- dates’ speak because compels candidates way or act in such a ling them to state speech. Once constitute themselves labels position on the portray term ballot, point it ascribes is on the the label impermissible This is an proposal. limits to the labeled candidate. of view speech, political on core restriction the First Amend Arguing that scrutiny to strict subjects the Amendment from the not insulate candidates ment does 414, Grant, Meyer v. 486 U.S. review. See electorate, that indi appellant points out 100 L.Ed.2d 425 108 S.Ct. subject to the Missouri become viduals (1988). However, assuming pur- even to run for if chose Amendment that the Missouri poses analysis Amend- However, political candidate “[a] office. political speech, compel strict ment did not First protection not lose the does is warranted because scrutiny review he declares [or she] when content-based, viewpoint- ais office.” publiс herself] [or himself right to on candidates’ restriction specific 45, 53, 102 Hartlage, Brown Freeman, See Burson speech. free (1982). An 1523, 71 L.Ed.2d 732 S.Ct. L.Ed.2d public by to serve the choice individual’s (Burson) (“[A] facially content- grant does not congressional office seeking speech political restriction based compel his to restrict or the state licence subjected to ... must be public forum contrary, speech speech. On her scrutiny”); also Turner exacting see particularly destructive restrictions FCC, System v. Broadcasting arena, importance political where 129 L.Ed.2d informa exchange of ideas and of free sys our aspect vital of democratic tion—a is content- Further The Missouri at its zenith. See id. tem—is of the it addresses issue not based because more, speaker identity of “[t]he limits, all other completely ignoring speech is term determining whether decisive against the label. or defend himself herself to cannot contact voter candidate addition, emerged is content-based ... is that the First Amendment issues. speak compels speech because it candidates government regulate forbids the limits, which about the issue of term viewpoints in ways that favor some might not do absent state action. See expense others.”)(citing ideas at 795, Riley, 108 S.Ct. 2667 487 U.S. Youngs Drug v. Bolger Corp., Products (state “speech speak that the mandate of 65, 60, 72, 2875, U.S. 103 S.Ct. necessarily make er would not otherwise (1983); L.Ed.2d 469 Consolidated Edison speech”). Fur alters the content of the Comm’n, v. Public Co. Service 447 U.S. thermore, the Missouri Amendment 535-36, 530, 2326, 100 S.Ct. 65 L.Ed.2d viewpoint-specific labeling because the (1980); Brown, 455, Carey v. 447 U.S. provisions single out individual candidates 2286, 100 S.Ct. 65 L.Ed.2d 263 only opposi punishment for based on (1980); Young v. American Mini The tion—actual or ascribed—to term limits.7 atres, Inc., 50, 63-65, 67-68, 427 U.S. The Missouri Amendment labels 2440, (plurali 49 L.Ed.2d 310 who, according Secretary those to the ty opinion); Department Chicago Police State, term lim oppose Amendment’s 2286, Mosley, 408 U.S. 92 S.Ct. proposal, nothing its and does to those (1972)). L.Ed.2d 212 such, it. pledge support who As hold that We the district court cor state-imposed, is a Missouri Amendment rectly determined viewpoint specific restriction candi subject Amendment should be to strict speech triggers dates’ which strict scruti scrutiny review.8 To survive strict scruti ny City review. Members review, ny appellant prove Vincent, must that the Taxpayers Council v. narrowly Missouri Amendment is tailored 104 S.Ct. 80 L.Ed.2d (1984) (“The principle general compelling government has to achieve a inter point Appellant urges 7. The the labels appro view ascribe us to determine the priate scrutiny by applying candidates not even be accurate. The level of the Su preme reasoning assigns Court's Missouri Amendment a label to non- Burdick v. Taku shi, pledge 112 S.Ct. incumbents who fail to and to in- (1992) (Burdick). L.Ed.2d 245 Burdick awas cumbents who fail to do one of the seven voting rights actions, brought by case an individual regardless enumerated of whether challenging voter Hawaii’s absolute ban on oppose the candidates in fact term limits. voting. plaintiff alleged write-in example, For a candidate who believed that ban violаted his First Fourteenth amend years terms should be limited to 12 in the rights. inquiry ment The Court advocated an years House rather than the six Amend- degree into of state interference with First requires would receive the label even rights and Fourteenth Amendment to deter though actually supports he or she term scrutiny apply, stating mine level of general. limits in An incumbent candidate regulations severely that tate election supports who term limits but failed to vote rights narrowly restrict those must be tailored proposed for a amendment because it was compelling to achieve a State interest but that legislation, linked to unfavorable in- "reasonable, regulations impose only stance, could also be labeled on the ballot. non-discriminatory generally restrictions” are Regardless opinion aof candidate’s about justified important state interests. See general, limits in term if the candidate does id. at 112 S.Ct. 2059. support specific prescribed by limit the Missouri Amendment or if he or she Although present casе from Bur- differs pursue does it fit to not see the amendment significant regards, dick is we believe that cost, process he or she will be the Burdick test also mandates strict applying opponent branded as an to the Missouri scrutiny. The Missouri Amendment is not a reasonable, Amendment and to the wishes of the voters nondiscriminatory ‍‌​​​‌‌‌​​​‌‌​‌‌‌‌​‌​​‌‌‌​‌​​‌​‌​​‌‌​​‌​​‌‌‌‌‌‌​​‍restriction on ascriptions point of Missouri. Such of view candidates' First and Fourteenth Amendment precisely type state-imposed rights, rather it is content-based and view- speech protected from which individuals are point-specific interference with candidates' See, such, e.g., Wooley the First speech. Amendment. to free As Burdick would Maynard, require narrowly regulation tailored L.Ed.2d compelling achieve state interest.

921 198, example, For Burson, falsely identify candidates. 504 U.S. est. See (“The require place- Amendment could must show that State S.Ct. compel next to the name of a necessary to serve ment of a ballot label is ‘regulation narrowly comply that it is fаiled to supporter interest and term limits who ling ”) 17(2). (quoting supra that end.’ aspect to achieve an See also drawn Local Edu Perry v. Finally, Educ. Ass’n there are less restrictive Perry note 7. 37, 45, Ass’n, education, 108 S.Ct. 460 U.S. which promote cators’ means to voter (1983)); v. Kirkeby 948, 74 L.Ed.2d 794 Amendment is indicates that the Missouri (8th Cir.1996); Furness, 655, See, 92 F.3d e.g. Boos v. narrowly not tailored. 801, 108 S.Ct. Riley, 1157, also see Barry, 485 U.S. (“Broad rules the area prophylactic example, For Missouri L.Ed.2d suspect. Precision expression free voluntary programs, such as could institute touchstone must be the regulation information guides, to debates or voter precious touching our most closely area so candidates’ provide information about freedoms.”) Button, (quoting NAACP important and other views on term limits 9 L.Ed.2d advance the programs issues. Such (1963)). informing voters without interest State’s speak or restrict- compelling candidates the Missouri maintains that Appellant ing right speak. not to ensures the electorate’s Amendment We construe candidates’ views. to know prove failed to appellant Since education is the to mean that voter this the Missouri Amend- labeling provisions of interest Missouri compelling state to achieve a narrowly ment are tailored to achieve. is meant While Amendment interest, failed to compelling state she has that an informed electorate agree we on candidates’ justify infringement its system gov- in our democratic important speech. provisions The label right to free ernment, the Missouri we hold by are barred of the Missouri Amendment scrutiny review be- Amendment fails strict applicable as the First Amendment to. to achieve narrowly tailored cause is not Amend- through the Fourteenth States First, of voter education. goal ment. only provides infor- views on term mation about candidates AND DEBATE B. SPEECH Al- limits, every other issue. neglecting CLAUSE obviously voters of Missouri though the issue, applies more limits, A which related we believe strongly about term feel candidates, is to incumbent appropriately that informs voters a state measure Amendment violatеs the Missouri term limits whether views on only of candidates’ 6, clause 1 of the United Article section electorate. ensure an informed does not and De Speech Constitution —the Second, is not States states, Clause, part: in relevant even the more bate narrowly tailored to achieve or Debate either any Speech “... of candi- informing voters goal limited House, Representa- limits, they [Senators because it can on term dates’ views court. See United the district address considered Although court did not the district (8th issue, Sager, necessary to demon 1263 n. States it is 743 F.2d this believe why 1984) (“We opin is invalid judgments, the Missouri Amendment strate not Cir. review Since applied to incumbent candidates. ions, any ground sup on and we affirm candidates incumbent situation record, whether or not ported by the than that of non-incum different somewhat urged passed ground was below candidates, issues the First Amendment bent Mid court.”); also Wisdom v. First see district apply A do not in Section II discussed Bank, Cir.1999) (8th west 167 F.3d As such to incumbent candidates. squarely Redwing, 146 F.3d (quoting Stevens v. judg to affirm the our discretion we exercise (8th 1998)). Cir. although ground, it was on this QUALIFICATIONS any in questioned not be other C. tives] shall CLAUSE contra- Place.” The Missouri Amendment Appellant that next contends guarantee venes this because establishes in concluding district court erred in which a state officer—the regime sec- Missouri im Amendment constitutes an retary permitted judge of state —is and permissible qualification candidacy for for Congress punish leg- members of for their Congress United States violation of positions. Bark- islative actions or Accord Clause, Qualifications I Article of the er, 1096; F.Supp.2d Simpson, at Appellant United States ar Constitution. P.2d at 1375. gues that the Missouri Amendment does provide no more than information about specifi Missouri Amendment The candidates and a quali does constitute cally secretary vests of state of fication within I. meaning of Article the responsibility to determine disagree. We appear when the ballot label shall next the name of an incumbent candidate. See Qualifications We believe that CONST, VIII, § MO. art. In so do Clause issues raised this case were ad ing, accept public she is to and consider Supreme dressed Court 19(3). comments. See id. As. we Thornton, Term Limits v. 514 U.S. above, discussed the ballot label “DISRE 115 S.Ct. 131 L.Ed.2d GARDED VOTERS’ INSTRUCTION ON that case the Court held that an amend pejorative TERM LIMITS” is a label with Constitution, ment to the Arkansas which politically ramifications, damaging which banned the names incumbents who had Thus, punishment. amounts the Mis served more than two terms the United souri Amendment a system by establishes States Senate or three terms in the United Representatives which Senators Representatives ap States House of from questioned punished about and can be for ballot, pearing on the established an im debate, speech, in Congress. actions permissible qualification additional for can system protections This contradicts the didacy for Congress. See id. at clause, Speech and Debate which is 115 S.Ct. After conducting a thor intended to allow Represen Senators and review, ough historiсal the Court deter speak tatives to and vote their conscience Framers, mined that neither the the con without fear retribution. See Gravel v. society, structs our democratic text States, 408 U.S. 92 S.Ct. itself, past of the Constitution nor Con (1972) (“The 33 L.Ed.2d Speech gressional supported action the contention designed Debate Clause was to assure a may impose states additional or dif co-equal government branch of the wide ferent qualifications than those set out in speech, debate, freedom of and delibera Qualifications Clause. id. at tion without intimidation or ... threats Rather, stated, 115 S.Ct. 1842. the Court directly impinge upon or threaten the any state authority qualifications to set legislative process”). Congress abrogated was by the ratification portions Constitution, of the Missouri Amend- of the and the sole source of dealing with labeling qualifications incumbent can- Congressional office is legislative speech didates based on their contained Article I. See id. at and actions Speech Thus, violate of the and De- S.Ct. 1842. attempt by a state Barker, bate clause. Accord F.Supp.2d to alter qualifications or add to these Simpson, 944 P.2d at 1375. clearly proscribed by the Constitution.10 Thornton, 10. In US Term Limits v. have considered whether states can add to or 131 L.Ed.2d 881 change qualifications. Article I The Court (US Limits) Supreme pointed Term Court litany cited a of cases which struck state- out, unanimity among there is courts coercing support candidates to Furthermore, effect of the Court found modify Congres removing mandate or candi- attempts to term limits indirect infirm. equally by persuading were qualifications dates who fail to do so sional did Arkansas Amendment Although the discussed voters not to elect them. As we from service incumbents prohibit above, cast doubt on la- the ballot labels petition rejected the Congress, the Court ability represent candidates’ con- beled Arkansas Amend contention er’s stituents, the labels state that labeled since impermissible impose an ment did not constituents’ ignorе candidates incumbents could still because qualification such, Amend- wishes. As the Missouri See id. write-in candidates. be elected as likely handicap labeled candi- ment is 830-31, de The Court 115 1842. at S.Ct. ability to be elected. dates’ by cannot achieve termined States Second, above, the Missouri as discussed constitutionally pro what is indirect means sole, expressed pur Amendment has the 829, at means. See id. by direct hibited congres pose adding qualification identify impermissible To 115 S.Ct. 1842. must have sional service candidates for qualifications alter attempts to indirect than served fewer three terms two-part devised a Congress, Court House or two terms the Senate. Sec unconstitu amendment is “[ ]a test: Amend tions 15 and 16 of the Missouri hand likely effect of when it has tional people state that and has the a class of candidates icapping of ser seek to limit the number of terms qualifi creating additional purpose of sole to three in the House and Congress vice in 836, Id. at 115 S.Ct. indirectly.” cations goal, attain this the Senate. To two 1842. members of requires Missouri Amendment fails U.S. The Missouri delegation to congressional First, Term Limits test. process, amendment pursue the Article V candi- class of targets distinct specifically mandate with the it enforces this limits, re- oppose who term dates —those the ballot labels. See MO. threat of fail pledge, limits to take the term fuse CONST, Thus, VIII, adding art. prescribed actions one or more of the to do pur the sole qualification limit the term serving in Con- Amendment while by the The pose of the Missouri Amendment. singled of candidates is This class gress. seeks to fact that the Missouri Amendment damaging labels. on the ballot with out compelling Congress likely do so members will have the provisions label see, 123, residency requirements, e. qualifica- district attempts alter Article I initiated 93, 100, Collier, Md. g., v. 217 Hellmann tions: 908, Fiorina, (1958); v. 911 Dillon 141 A.2d 99, Howell, 175 P. v. 104 Wash. Chandler Tiemann, 731; F.Supp. at Exon v. 279 340 Stadelman, (1918); 146 Ore. 569 439, 446, Ekwall v. 609, (D.Neb.1968); State ex F.Supp. 613 1037, (1934); Stock P.2d 1040 30 581, 578, Evans, 446 v. 79 N.M. rel. Chavez 138, 144, McFarland, 106 56 Ariz. ton v. curiam), 445, (1968) loyalty (per 448 P.2d 328, (1940); State ex rel. Johnson 330 P.2d see, g., Shub v. requirements, e. oath 189, Crane, (1948); Wyo. 864 65 197 P.2d v. 332, 177, 199, 76 A.2d Simpson, 196 Md. 729, Fiorina, F.Supp. 731 v. 340 Dillon 881, dism’d, 341, U.S. appeal 340 Adams, (D.N.M.1972); F.Supp. 315 Stack v. O'Connor, 198, (1950); In re L.Ed. 640 95 1295, (N.D.Fla.1970); Bucking 1297-1298 758, 419, 421, 760 17 N.Y.S.2d 173 Mise. 405, 903, State, 905 v. 42 Del. 35 A.2d ham 1940), restrictions on (Super.Ct. *34] and 826, 830, [* Lau, (1944); Stumpf Nev. v. 108 see, felonies, e.g., Appli convicted of those 120, (1992); v. Danielson 839 P.2d 123 Ferguson, Misc.2d 151, 57 149, cation Fitzsimmons, 232 Minn. 174, (Super.Ct.1968); N.Y.S.2d 484, (1950); Opinion In re N.W.2d Minn, Fitzsimmons, at 233, v. Danielson Judges, 116 N.W.2d 79 S.D. ex rel. Eaton at State 44 N.W.2d have struck down state- Courts Schmahl, 167 N.W. v. 140 Minn. imposed qualifications in the form of term curiam). see, (per limits, Gregoire, e.g., Thorsted Term Limits, (W.D.Wash.1994); US Lau, Stumpf Nev. at 839 P.2d Case, initiate, pursue, sup shall be valid to all Intents and from Missouri Constitution, Purposes, Part of this process amendment port the Article V under Legislatures when ratified analysis change does not Term, Limits, States, byor an indirect at three fourths of the several as it is still thereof, in three fourths to those listed Conventions tempt qualification to add a of Ratifica- Qualifications Clause. Since the the one or the other Mode in the proposed by Congress impose seeks to tion be Missouri Amendment qualification candidacy additional CONST, in a manner which is Cоngress and does so specifically art. Y. Article V handicap oppo term limit

highly likely to process delegates legis- the amendment to candidates, it fails nents and other labeled bodies, lative not the voters. the U.S. Term Limits See test.11 sup Supreme precedent Court 829, 115 1842. S.Ct. people ports the conclusion that the have a limited, third-party in the role amendment D. ARTICLE V process. invalidating an Ohio constitu Lastly, appellant argues that the required tional amendment which ratifica holding erred in that the district court ‍‌​​​‌‌‌​​​‌‌​‌‌‌‌​‌​​‌‌‌​‌​​‌​‌​​‌‌​​‌​​‌‌‌‌‌‌​​‍Eighteenth by pop tion of the Amendment Amendment violates Article V of Missouri referendum, ular the held that the Court Constitution, sets the United States ratification of a constitutional amendment process through out which the Consti awas federal function derived from Article may tution be amended. She contends V, which the sole delineates methods not does Smith, ratification. See Hawke v. 253 U.S. process. disagree. alter the Article Y We 221, 495, 230, 40 S.Ct. 64 L.Ed. 871 Garnett, of the Article V United States Consti- In Leser v. processes through

tution sets forth the two (1922), S.Ct. 66 L.Ed. 505 the Court which the States Cоnstitution held that the ratification of the Nineteenth be amended. Article V states in relevant subject not to was state-im- part: posed pro- restrictions on the amendment Congress, again whenever two thirds of cess. The Court determined that necessary, legislatures ratifying

both Houses shall deem constitutional function, propose shall Amendments to this Con- amendments assume federal stitution, Application or on the sought of the which “transcends limitations Legislatures imposed by people of two to be of a thirds the several State.” States, Id. Article V envisions pro- legislatures acting shall call a Convention for Amendments, which, in posing freely either as deliberative bodies the amend- Appellant attempts running Congress; to demonstrate that the decline to do so. Qualifications Supreme rejected Court Tashjian has qualification dealt with the issue challenges practices, Clause to election State political process participate to in the as vot- citing Tashjian Republican Party, 208, Supreme qualifi- The Court ers. held (1986) 93 L.Ed.2d 514 symmetrical cations clause did not demand However, (Tashjian). appellant's attempt to qualifications for voters in state and federal parallels Tashjian draw between and the Mis- Amendment, elections. The Missouri er, howev- Tashjian souri Amendment fail. dealt with qualification does deal with the Qualifications the effect of the Clause on the elections, Missouri voters to vote federal qualification independent partici- voters to qualification but as candidates in the pate Republican Party's in the Connecticut election. primary. The Court stated that the Framers Furthermore, Tashji- appellant's citation to sought disqualification prevent of state support argument an to direct voting through voters from federal elections Qualifications disqualifications violate the Qualifications Clause. See id. at rejected already Clause has been the Su- S.Ct. 544. preme Court US Term Limits Thorton. Appellant Tashjian would have us extend Limits, US Term 514 U.S. at state-imposed qualifications long allow disqualify do not state residents from Kimble). permissible By under its any attempt thus and resists process terms, legisla- Amendment re people of a state to restrict own Missouri the. Representatives actions. from quires tures’ Senators support initiate and the Article Missouri to state courts were recently, two More Missouri, “We, process: V Voters attempts to voter-initiated confronted hereby each member of our con instruct process. Article V amendment direct the delegation to use all of his or gressional Courts California Supreme powers pass Congres delegated her invalidated, grounds, Article V Montana sional Term Limits Amendment.” MO. compelled the Califor initiatives that voter CONST, 17(1) VIII, § (emphasis art. add ap legislatures Montana State nia and Moore, ed); see also 169 F.3d at 1124 call a constitutional Congress to ply to budget a balanced Nebraska limits initia (interpreting to consider term convention Eu, AFL-CIO v. Congress members of amendment. tive bind “ P.2d 609 Cal.Rрtr. Cal.3d on a and inflexible ‘proceed precise (1984) (Eu); v. Wal Harper ex rel ”) State Morrissey, 951 (quoting course of action’ termire, P.2d 826 213 Mont. 916). Furthermore, P.2d at (Waltermire). case, the initiative In each Amendment seeks to coerce members in to continue legislators required State comply with this mandate Congress to they pass if did not pay without session politically-dam with the threatening them specified peri a petitions within necessary if aging ballot labels fail do so. that such vot Both courts determined od. Thus, legislators in unlike the Nevada legislators’ abili er-imposed restrictions Kimble, congres members of Missouri’s independently the issues ty to deliberate disregard not delegation sional free Eu, 621; P.2d at Article V. See 686 violated in the Amend the instruction embodied Waltermire, 691 P.2d at 830. 1124; See, Moore, e.g., 169 F.3d at ment. maintains that Article V does Appellant Barker, 1093; F.Supp.2d Gwadosky, at 3 directing prohibit not the electorate from Donovan, 57; 931 at S.W.2d amend the Constitution. elected officials to 125-26; at Petition No. 930 P.2d at v. Swack principally He relies on Kimble at Simpson, But 130 Idaho 192-93. see hamer, 1385, 99 613. (1978), support this conten L.Ed.2d ar accept appellant’s We cannot Rehnquist, In that case then-Justice tion. amendment does gument that the Missouri Justice, injunc an denied sitting as Circuit process. alter the Article V Voter non-binding referendum against tion legislators to coerce initiatives which seek Rights Amend Equal Nevada about the particular proposing ratifying or into Rehnquist ment. reasoned Justice violate Article amendment constitutional did not alter the Article V the referendum above, the Missouri As discussed V. advise process served to because such ballot labels constitute Amendment’s legis wishes and legislators people’s of the directly influ attempt by the voters to at disregard free to it. See id. lators were by directing process the Article V ence from Mis Representatives and Senators However, proposal pursue and support souri to advisory, non-binding far more than an limits amend and ratification of term on term limits. opinion of voters’ show to the United States Constitution. 1124; Barker, See, Moore, F.3d at e.g., 1093; F.Supp.2d Gwadosky, III. CONCLUSION Donovan, F.Supp. at S.W.2d record, light viewed in the m, 125-26; P.2d at 192- Petition No. no appellant, reveals most favorable to Idaho at 613 Simpson, 93. But see material fact and labels, genuine issue of the ballot (holding that without a mat- judgment non-binding appellee and is entitled limit initiative is term ter of law the Missouri Amend- tutional reasoning because under the court’s Amendment, §§ ment violates the First the Part II. I Because believe 15 and 16 Clause, Speech Qualifica- and Debate remain legitimate political expressions of Clause, and Article V of the Missouri, tions the citizens of I respectful- must States Constitution.12 ly portion dissent from that of the court’s opinion and judgment sweeps away affirm the Accordingly, judgment entirety of the Missouri Amendment. the district court. Moore, In Miller v. 169 F.3d HANSEN, Judge, concurring Circuit in (8th Cir.1999), held, recently this court part part. dissenting and striking while down several sections of a readily I I opin- amendment, concur with Part of the similar Nebrаska term limits ion portions of the court and with those declaring posi- the section the official II labeling provi- Part which declare the tion of the citizens of Nebraska to be that (§§ 19) sions of the elected officials should enact a term to be violation of the Con- limits amendment was severable and con- however, stitution. I separately, write principle stitutional. The established specifically my §§15 to assert view that equally applicable Miller v. Moore is to the and 16 of the Missouri Amendment are Missouri Amendment at issue this case. pursuant severable alone, of the Standing §§15 Amend- legiti- 16 are a independently mate, ment and are not unconsti- nonbinding political expres- form of Judge ing question place Hansen dissents from our decision any legal on this does not requirement to strike the Missouri Amendment legislature in its en- on the of its that, instead, tirety argues and we should members.” 439 U.S. at 99 S.Ct. 51 §§ Stats., sever and 5). 17-19 leave the remainder of the (quoting §§ 1977 Nev. ch. Judge intact. If we followed If the Missouri Amendment contained similar recommendation, Hansen's Article VIII of the lаnguage, agree Judge we would with Hansen However, Missouri Constitution would state that the that it is not coercive. in the ab- people of Missouri seek to the amend language, sence of such we believe that the adding by States Constitution a term limit memorialization in the Missouri Constitution qualification Congressional for service. Al- people's pass specific of the intent to though longer there would no be a State- amendment to the United States Constitution imposed punishment for candidates who fail departs expressly advisory, from the non- limit, support proposed to the term the Mis- binding Rehnquist referendum then-Justice (a) souri Constitution would still contain: permissible found to be in Kimble and comes attempt by people direct the to amend the Supreme closer to the direct involvement the (b) U.S. attempt by Constitution and an the Court disallowed in Lesser and Hawke. See people qualifi- State and of Missouri add a IID, Part above. cation to Article I. we Because believe that Second, IIC, as wе noted in Part states unconstitutional, attempts both these we constitutionally cannot add to or alter the Judge suggestion, cannot follow Hansen’s not- qualifications for federal office. See U.S. withstanding this court's decision in Miller v. Const, Thus, §§ argu- art. I. and 16 are Moore, (8th Cir.1999). 169 F.3d 1119 ably by they barred Article I because are an First, IID, attempt by change a State to add to or the we people noted in Part qualifications for service in play the United States are not to a direct role in the Article V Congress opposed petition to an V process. agree amendment Article While we —as for a Judge Constitutional advisory Hansen that convention from a State communication legislature people amending between the to consider and their elected the United officials permitted, is we believe that States Constitution. Finally, we constitutes more than such refuse to sever the mere- communications, and, such, ly advisory jurisprudential grounds, Amendment on be- 17-19, by Assuming pur- barred Article V. §§ for the causе if we choose to sever we poses analysis opinion portions that a Circuit Justice ‍‌​​​‌‌‌​​​‌‌​‌‌‌‌​‌​​‌‌‌​‌​​‌​‌​​‌‌​​‌​​‌‌‌‌‌‌​​‍must also sever 16 which are binding precedent for the Ninth Circuit is superfluous unconstitutional or in the absence Circuit, Eighth we micro-management §§ believe that Kimble is 17-19. Such of the distinguishable. The referendum in entangle Kimble Missouri Constitution would this by such, legislature was initiated the Nevada and court too much in State law issues. As specifically stated opt that "the result of the vot- to abstain from such action. do under the Constitution who on those explaining of Missouri the citizens by sion Standing limits procedures. term the formal specific control support their Constitu- States to the United than more alone, nothing §§ amendment and 16 are tion. exercis- of Missouri people of state petition their right political their suggests ing court of the opinion

The violate Article term standing alone enact a representatives §§ and 16 elected federal Constitution I of the Article V and to the Constitution. limits amendment are, “a direct they resрectively, because form of involved this “coercion” U.S. people to amend the attempt by ordinary garden-va- expression is political attempt by the State “an and Constitution” certainly is pressure, which political riety qualifica- to add a of Missouri people Noth- by the Constitution. not prohibited n. 12. at 926 supra I.” Article tion to the formal §§ and 16 restricts ing latter, I believe respect With V, and procedures Article amendment abso- have the Missouri indeed people of held to violate not be they thus should in a propose V to under Article lute Constitution. an to or addition pronouncement public congres- qualifications alteration of prohibits precedent no I know of I. Article Once found service sional their expressing from of a state the people down, §§ 15 through 19 are struck §§ 17 through amendments views political alter way add to or and 16 do constitution, if that ex- even for Missouri’s qualifications the current to or matters of interest involves pression do af- nor dеlegation, congressional so federal legislators, control of under proce- election any way federal fect advisory and the amendment long as Furthermore, § not be 15 could dures. acting into officials not coerce elected does pur- when states explicit more See Kimble Swackham- way. a certain is to voter-approved initiative pose of the er, adoption following to the “lead (1978) (Rehnquist, Circuit Therefore, I L.Ed.2d Amendment.” Constitutional Justice). attempts these opinion about unconstitutional The court’s nothing see 16) (§§ people ar- in Kimble principle efforts distinguish the Arti- an amendment secure Missouri to con- that guing process, and V through the Article cle I making it clear language specific no tains Lim- U.S. Term the decision nothing in representatives. bind it does that not Thornton, its, Inc. v. specifically the Amendment Whether (1995), sug- L.Ed.2d 881 not, the nonbinding or states otherwise. gests nonbinding. Once is the same—it effect V, “people” to Article respect With §§17 provisions found labeling “a (that is, citizenry) have more than down, are no there 19 are struck through in the amendment limited, party role third imposed on penalties improper longer fact, ‘We 924. supra at process.” See longer is no there officials and elected important as have at People” least than other mechanism enforcement amending process Consti- role It is political process. basic through the was, creating it. It they did tution politi- may be §§ 16 still 15 and true forced the first all, “people” who after represent persuasive because cally adopted. As to be ten amendments who of the voters majority a the views out, people have correctly points court §§ 15 and Because on the issue. voted proce- in the amendment role no formal however, binding, are not standing alone However, the V. Article dieres set out and should not unconstitutional they are crucial, role substantive play a people democratically stand be allowed bringing politi- process the amendment will the political expression determined political through pressure cal bear — people of Missouri. mobilization, activities— and other speech, Finally, why I see no reason upholding America, Appellee, United States of §§ 15 and 16 is improper federal court micro-management of the Missouri Consti- Kimpton, Appellant. Karl Michael most, § tution. At the last clause of superfluous, be superfluity 98-2839, 98-2980, but does Nos. 98-3787. equal unconstitutionality. Nothing re- Appeals, United States Court of unconstitutional, maining in 16 is and I Eighth Circuit. think the entire section could remain with- severing any Furthermore, out part of it. May Submitted 1999. respect out of people of Missouri Sept. Filed Constitution, and their Missouri I believe Granted; En Rehearing Banc Opinion we become entangled less in state law Judgment Vacated Nov. issues striking portions down those of the Missouri Amendment that are clear- ly unconstitutional.

Accordingly, I respectfully dissent from

that portion of the opinion court’s §§15

strikes down and 16 of the Missouri

Amendment.

UNITED AMERICA, STATES OF

Appellee,

Abdul AL-MUQSIT, Wahid also known Zachary Roan, Aaron also known Roan, Appellant.

as Zach America,

United Appellee, States of

Benjamin Logan, Matthew also known Logan, Matt Appellant. America, Appellee, States of Michels,

Dennis Appellant. Kermit

Case Details

Case Name: Donald James Gralike v. Rebecca M. Cook

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 31, 1999

Citation: 191 F.3d 911

Docket Number: 98-1494

Court Abbreviation: 8th Cir.