Lead Opinion
This сase involves a deep and seemingly intractable conflict between principles at the heart of our representative government: the right of the people to choose whom they please to govern them, and the authority of a state to determine the structure of its political system. It also raises the novel question whether, when the people vote on an initiative measure that, if enacted, would severely limit a fundamental, constitutional right, they must be given adequate notice of the measure’s effect.
In 1990, by a narrow margin, California voters passed Proposition 140, which, as construed by the California Supreme Court, amends the California Constitution to impose a lifetime limit on the number of terms that an individual may serve in state legislative office. The plaintiffs in this case — who con
We affirm the judgment, but not the rationale, of the district court. We do not decide whether a state may adopt lifetime term limits for its legislators without violating the Constitution. We recognize that the state has a compelling interest as a sovereign in choosing the structure of its institutions and the qualifications of its officials — an interest that may suffice to render lifetime term limits constitutional, although we do not decide that question here. Instead, we invalidate the challenged lifetime ban because we hold as a matter of federal constitutional law that a state initiative measure cannot impose a severe limitation on the people’s fundamental rights when the issue of whether to impose such a limitation on those rights is put to the voters in a measure that is ambiguous on its face and that fails to mention in its text, the proponents’ ballot arguments, or the state’s official descriptions, the severe limitation to be imposed. Neither Proposition 140, the proponents’ ballot arguments, nor the material prepared by the state mentioned “lifetime” term limits; thus, the voters were not afforded adequate notice of the severity of the limitation involved.
BACKGROUND
On November 6, 1990, California voters narrowly passed Proposition 140, which amended the California Constitution to limit the number of terms that individuals may serve in certain state offices, to curtail the retirement benefits of state legislators, and to reduce or eliminate legislative staff and support services. Cal. Const, art. IV, § 2(a) (term limits for state legislators); id. § 4.5 (retirement benefits for state legislators); id. § 7.5 (operating expenses of legislature and compensation of legislature members and staff); see also id. art. V, § 2 (gubernatorial term limits); id. art. V, § 11, art. IX, § 2, art. XIII, § 17 (term limits for other state executive officials). Although other state offices were affected, the thrust of the measure was clearly aimed at adopting term limits for the state legislature.
There are two kinds of term limits: consecutive term limits and lifetime term limits. Consecutive term limits restrict the number of terms that a representative may serve in a row. Under this approach, which is employed by a majority of the states that have adopted legislative term limits,
California proposed and adopted its term limits by means of the state’s initiative process. See Cal. Elec.Code § 9000 et seq.; § 13280-82. Because Proposition. 140 was a proposed constitutional amendment, the proponents were required to present to the Secretary of State a petition signed by eight
The official title of Proposition 140 as it appeared in the ballot pamphlet read: “Limits of Terms of Office, Legislators’ Retirement, Legislative Operating Costs. Initiative Constitutional Amendment.” The Proposition itself commenced with the following preamble, which is part of the constitutional amendment:
The people find and declare that the Founding Fathers established a system of representative government based upon free, fair, and competitive elections. The increased concentration of political power in the hands of incumbent representatives has made our electoral system less free, less competitive, and less representative.
The ability of legislators to serve unlimited number of terms [sic], to establish their own retirement system, and to pay for staff and support services at state expense contribute heavily to the extremely high number of incumbents who are reelected. These unfair incumbent advantages discourage qualified candidates from seeking public office and create a class of career politicians, instead of the citizen representatives envisioned by the Founding Fathers. These career politicians become representatives of the bureaucracy, rather than of the people whom they are elected to represent.
To restore a free and democratic system of fair elections, and to encourage qualified candidates to seek public office, the people find and declare that the powers of incumbency must be limited. Retirement benefits must be restricted, state-financed incumbent staff and support services limited, and limitations placed upon thе number of terms which may be served.
Cal. Const., art. IV, § 1.5 (as amended). The Proposition, in relevant part, proposed to amend the California constitutional provision governing legislators by adding the following language:
No Senator may serve more than 2 terms. ... No member of the Assembly may serve more than 3 terms.
Cal. Const., art. IV, § 2(a) (as amended) (emphasis added). Nowhere in the initiative, the title and summary, the Legislative Analyst’s statement, or the proponents’ ballot arguments, was there any mention of lifetime limits.
On the November 6, 1990 general election, the measure was put to a statewide vote. The following language appeared on the ballot:
TERMS OF OFFICE. LEGISLATURE. INITIATIVE CONSTITUTIONAL AMENDMENT. Limits: terms for specified state elected officials, legislators’ retirement, pensions. Legislature’s operating costs.... Yes__No__
The measure passed by a statewide margin of 52.17% to 47.83%.
In 1991, a group of petitioners consisting of the California Senate and Assembly, a number of individual legislators, and individual constituents challenged the validity of Proposition 140 directly in the California Supreme Court by way of a petition for writ of mandate. Legislature v. Eu,
Petitioners contended that the Proposition was unconstitutional because it imposed lifetime term limits. The state of California
The court first expressed its agreement with one of the arguments advanced by the state and specifically found that “the language of Proposition U-0 is ambiguous as to its intent to impose a lifetime ban.” Id. at 504,
The California Supreme Court, after setting forth its rule that requires all doubts regarding an initiative measure to be resolved in favor of constitutionality, id. at 501,
In 1995, plaintiff Tom Bates and a number of his constituents filed suit in district court seeking declaratory and injunctive relief against enforcement of Proposition 140’s term limits provisions. Bates represented the 14th Assembly District continuously from his initial election in 1977 until 1996. As a result of Proposition 140, Bates became ineligible to run for re-election in November of 1996, and is forever barred from seeking any other seat in the Assembly as well. Plaintiffs Browning, Buehalter, Graham, Lewis, Lyman, Sherman, and Sterling are voters in Bates’ former district. The district court found that they would have voted for Bates in 1996 had he been a candidate. Bates v. Jones,
The state argued that Bates’ action is barred by collateral estoppel. In two rulings, one published, Bates v. Jones,
The case proceeded to trial in October of 1996. Together, the parties presented evidence on an array of issues, including the history of term limits in the United States, the actual strength of the interests asserted by the state, the effectiveness of lifetime term limits as a means of furthering those interests, and the availability of less drastic alternatives.
The district court stayed its injunction pending apрeal. The state and intervenors timely appeal' the district court’s decision on the merits, and plaintiffs timely appeal the stay of injunctive relief pending appeal.
DISCUSSION
I. Res Judicata
We first consider the state’s procedural challenge to plaintiffs’ right to pursue this action. The state contends that the res judicata effect of the California Supreme Court’s decision in Legislature v. Eu bars Bates’ claims, if not those of his former constituents as well. We reject the state’s argument.
We apply state law in determining the preclusive effect of a prior state court adjudication, 28 U.S.C. § 1738, and we review questions of res judicata and collateral estoppel de novo. In re Russell,
Although “privity” is not a clearly defined concept under California law, it generally refers to persons who are so identified in interest with the parties to the original action that it is proper to bind them along with the parties to the original litigation. Dyson v. California State Personnel Bd.,
With respect to the first inquiry — whether the nonparty had an identity of interest with, and adequate representation by, the losing party in the first action' — due process requires both that the prior litigation of the issue have been motivated by the same underlying purposes, and that the original party have had an incentive and opportunity to litigate the issue in the manner best suited to furthering those common underlying purposes. See, e.g., Clemmer v. Hartford Ins. Co.,
The district court concluded that of Bates’ constituents, plaintiffs Sterling, Sherman, Graham, and Browning had no identity of interest with the Eu petitioners. Sterling and Sherman were not California residente at the time of the Eu litigation, while Graham and Browning were not yet old enough to vote. Bates I,
We agree with the district court’s holding in general and particularly with its conclusion that the Eu petitioners did not adequately represent the interests of Bates and his former constituents. Whatever their reasons, the Eu petitioners urged the court to construe the initiative in the manner that would most severely limit plaintiffs’ fundamental rights. That the present plaintiffs and the Eu petitioners are represented by the same law firm is irrelevant; it cannot be inferred that different clients share the same interests or would choose the same strategies simply because they are represented by the same attorneys. The fact that Bates’ campaign committee contributed a minute fraction of the cоsts of the Eu litigation fails to establish privity. The state does not even dispute the district court’s factual findings that the contribution was unwitting, and that no plaintiff in the present ease enjoyed control over any aspect of the Eu litigation as a result of the contribution or for any other reason.
This case is highly appropriate for application of the public interest exception. As we explain below, Proposition 140 imposes a severe burden on fundamental constitutional rights of voting and association that are “preservative of other basic civil and political rights.” Reynolds v. Sims,
We conclude that application of the public interest exception is warranted by the overwhelming public importance of the issues involved; the numbers of persons whose fundamental rights were severely limited as a result of a writ proceeding that was conducted primarily between governmental entities and that bypassed the ordinary judicial procedures; and the existence of intervening, clarifying authority. In concluding that the public interest exception permits a federal court to reexamine federal questions previously decided in state court, we do not, of
II. Proposition 140 and the Burden it Imposes
Proposition 140 presents a novel and difficult question of constitutional law. Neither the Supreme Court,
First, Proposition 140 affects a change in the state’s governmental structure that is far more basic than any provision dealt with in prior eases examining state election laws for First Amеndment violations. The state interest underpinning lifetime term limits is not merely the customary one of regulating elections, but, rather, it lies in the state’s power to determine the fundamental nature of its legislature.
Second, the severity of the burden that Proposition 140 imposes on the people’s right to vote for the candidates of their choice far exceeds any limitation imposed by laws that simply regulate the state electoral process.
We do not in any way minimize the state’s interest in adopting measures like Proposition 140. It cannot be doubted that the state has a particularly strong interest in its right to determine the structure of its political institutions. “Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign.” Gregory v. Ashcroft,
On the other hand, the Supreme Court has left no doubt that the burden сreated by the state’s lifetime ban is exceptionally severe. While we have no need in this opinion to balance the state’s interest in adopting lifetime term limits against the burden they impose on fundamental voting rights, determining the extent of this burden is important to our analysis.
The Supreme Court has emphatically stated that “[t]he right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds,
As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself.... “The people are the best judges who ought to represent them. To dictate and control them, to tell them who they shall not elect, is to abridge their natural rights.”
Powell,
Lifetime term limits impose a penalty on the voters that is both severe and paradoxical. Unlike consecutive term limits, which are designed to obviate any unfair advantages incumbents may have, lifetime term limits do not simply provide a hiatus from office, but, rather, impose a permanent ban. The effect of lifetime term limits, as Justice Kennedy explained in his concurring opinion in U.S. Term Limits, is “that [a state] can burden the rights of resident voters in federal elections by reason of the manner in which they earlier had exercised [those rights]. If a majority of the voters ... successfully] seleet[s] a candidate, they [are] penalized from exercising that same right in the future.”
Despite the strength of the Supreme Court’s statements, the state contends that term limits do not impose a severe burden on individual rights, in part because they neither “discriminate” against a particular political group or viewpoint nor constitute a “content-based restriction.” In addition, the state emphasizes that voters may still vote for candidates with “similar views and ability” to those incumbents barred by term limits and that individuals barred from the legislature by term limits remain eligible to hold state executive office, elective or appointed, or to seek federal office. The burden Proposition 140 imposes on the rights of voters and candidates is truly severe for the reasons already explained. We need not consider whether, in addition, the measure can be described as “discriminatory” or “content-based.” That there may be other candidates whose views the voters may find palatable, and that “termed out” candidates are free to seek non-legislative offices simply does not address the constitutional injury inflicted: the Proposition permanently deprives the voters of the right to vote for the person they wish to represent them in the state legislature}
III. Proposition 140’s Enactment and Its Lack of Notice
In this case of first impression, we are faced with directly conflicting rights and interests of the upmost importance. The state has attempted to resolve this historic conflict by means of a direct ballot initiative that would severely limit the right of the people to elect whomever they choose. Whether or not a state may lawfully adopt lifetime legislative term limits as a general matter, the techniques it employed here raise a serious issue of constitutional dimension: whether the voters are entitled to adequate notice that the measure, if enacted, would severely limit their fundamental rights. Proposition 140 on its face contained no reference to lifetime limits, and the ballot arguments submitted by the initiative’s proponents failed to mention that the measure contemplated such a ban; so, too, the materials prepared by the state were wholly silent on the point. The initiative barely passed with an affirmative vote of 52%; a switch of approximately 2% of the votes would have resulted in its defeat.
We are faced, in short, with two constitutional issues in this case: one procedural, one substantive. Given the magnitude of the substantive constitutional question presented by lifetime legislative term limits and the narrowness of the procedural question regarding the need for fair notice in this type of initiative measure, it seems prudent — as well as logical — tо decide the procedural question first. Such an approach is consistent with Justice Powell’s admonition in Communist Party of Ind. v. Whitcomb,
A careful analysis of Proposition 140 and the California Supreme Court decision construing it reveals that the Proposition and the relevant ballot materials failed adequately to advise the voters of its principal and most drastic effect. The people were required to vote on an initiative measure without adequate notice of the severity of the burden it imposed on their fundamental voting rights — a measure that did not clearly inform them that they were being asked to adopt a lifetime ban on future legislative service by the persons they choose to be their representatives. Moreover, it is likely that the number of voters who were not aware of the initiative’s principal effect was sufficiently large that it could have affected the outcome of the election. We conclude that under these circumstances, even if a majority of the voters of the state of California may, under other circumstances, lawfully decide to adopt lifetime legislative term limits, the passage of Propоsition 140 did not constitutionally achieve that objective.
The California Supreme Court expressly determined that “the language of Proposition 140 is ambiguous as to its intent to impose a lifetime ban.” Legislature of the State of California v. Eu,
Although the proper interpretation of Proposition 140 is purely a matter of state law, the issue whether the people’s fundamental political rights may be severely burdened by means of an “ambiguous” initiative that “the average voter” would only “likely” understand is, contrary to the state’s assertion in its supplemental brief, a question of federal law. Under the California rule for construing initiatives, which requires courts to indulge “all presumptions [in] favor [of] the validity of initiative measures,” id. at 501,
It is well established that when a restriction “severely” limits fundamental voting rights, courts must assess the state’s interests in doing so with great care. See Burdick,
We believe that Burdick, along with the Supreme Court doctrine discussed below, requires that we carefully scrutinize the process by which initiatives, such as Proposition 140 — initiatives that have the effect of severely limiting fundamental voting rights— are enacted. We must do so in order to ensure thаt sufficient notice has been given that fundamental rights will be so burdened. Simply put, we believe that the careful scrutiny required by Burdick must apply to the process as well as the effect of such laws. Indeed, the Supreme Court has, on a number of occasions, refused to permit the imposition of severe limitations on fundamental rights in the absence of adequate notice and a carefully considered decision to do so. Years ago, for instance, the Court explained that decisions to restrain “long-accepted notions of fair procedures ... must be made explicitly not only to assure that individuals are not deprived of cherished rights and procedures not actually authorized, but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting ... our laws.” Greene v. McElroy,
While this principle has most often been employed in order to construe narrowly stat
Perhaps the case that is most comparable to the one before us is Thompson v. Oklahoma,
Justice O’Connor repeatedly emphasized that Thompson was a death penalty case, and that death penalty cases are “different.” She also stressed that Thompson was an “unusual,” even “unique,” case. Id. at 858,
Cases involving the adoption of state laws or constitutional amendments by means of the initiative process raise concerns that are not present when ordinary legislative lawmaking is involved. Though the initiative process was virtually unknown to the Framers, the Federalist papers — and, to a lesser extent, the Constitution — reflect a wariness of the products of simple majoritarianism. In Federalist No. 10, Madison stated that majority factions ought to be contained because they are apt to be willing to sacrifice the “public good and the rights of citizens” to their “ruling passion or interest.” Federalist No. 10, at 60-61 (James Madison) (J. Cooke ed.1961). He was even more direct in Federalist No. 51: “If the majority be united by a common interest, the rights of the minority will be insecure.” Id. No. 51, at 351 (James Madison). Of particular relevance to the case at hand, Madison continued, “There are particular moments in public affairs when the people stimulated by some irregular passion, or some illicit advantage, or misled by the artful representations of interested men, may call for measures which they themselves will afterwards be the most ready to lаment.” Id. No. 63, at 425 (James Madison) (emphasis added). It is government’s duty under our constitutional design, therefore, to “safeguard against the tyranny of [such] passions.” Id. We agree with Hamilton that the need for judicial independence is the greatest when constitutional impairments are “instigated by the major voice of the community.” Id. No. 78, at 528 (Alexander Hamilton).
Although it has long been settled that, notwithstanding these concerns, states may pass laws by initiative, see Pacific States Tel. & Tel. Co. v. Oregon,
Moreover, the search for the people’s intent in passing initiatives is far different from the attempt to discern legislative intent; there are no legislative hearing transcripts, committee reports, or other legislative history.
Furthermore, when fundamental, constitutional rights, such as voting rights, are at stake,
Similarly, if the proponents of Proposition 140 truly intended to put to the voters the proposal of lifetime term limits, they could have simply put that phrase into the initiative. The phrase is perfectly clear and existed lоng before the election. This safeguard would have imposed no burden at all on the measure’s sponsors, yet would have ensured that voters would have received adequate notice of the initiative’s sweeping effect. Cf. Mathews,
Counsel for the state, Professor Elhauge, conceded at oral argument that the voters must be clearly informed of the initiative’s effect, and, specifically, that the voters should be advised that “they are adopting term limits for life.”
We of course acknowledge that the interpretation of a state statute by the state’s highest court “puts ... words into the statute as definitely as if it had been so amended by the legislature.” Winters v. New York,
Due process and the Supreme Court’s established practice of requiring considered decision-making in highly sensitive areas of constitutional law compel our holding. Although we fully accept the California Supreme Court’s construction of Proposition 140, the Constitution requires us to invalidate an initiative if it fails to provide adequate notice to the voters that it would severely burden the people’s fundamental rights. Here, we hold as a matter of federal law that the state may not enforce Proposition 140’s lifetime legislative term limits because the provision imposes a severe limitation on the people’s fundamental right to elect whomever they choose and the voters were not provided with adequate notice of that limitation.
Although we recognize and appreciate that states have an important constitutional interest in designing their own political institutions, we conclude that when a state uses an initiative to adopt a form of governmental structure that severely burdens the fundamental rights of voting and association, due process requires that the state give the voters notice of the limitation that the measure would impose. Absent adequate notice, we cannot hold that the people intended severely to burden their most fundamental right, the right to vote. In matters this important, the state simply must tell its citizens what they are voting on.
IV. Conclusion
This conclusion leaves us no choice but to invalidate the legislative-term-limits provision of Proposition 140. As we stated above, and as the state correctly reminds us, the California Supreme Court’s determination that the measure imposes a lifetime ban, Eu,
Nor may we sever the lifetime limits requirement. Severability is a question of state law. Brockett v. Spokane Arcades, Inc.,
Hence, we have no choice but to invalidate the provision for legislative term limits. In doing so, however, we reiterate that we express no view as to the right of the state to adopt lifetime term limits for legislative office. That is an important and difficult constitutional question, but it is one that we defer to another day.
The judgment of the district court is
AFFIRMED.
Notes
. Although the measure contains a number of other provisions, it is obvious that the measure's primary focus is the legislative-term-limits provision. The term-limits provision is the first item mentioned in the measure’s title, the measure itself, and in the ballot arguments. In fact, the measure's proponents dedicated seven and one-half of its ten-paragraph ballot argument to debating the merits of legislative term limits (without mentioning that the limits to be imposed by the measure were lifetime). Moreover, as the proponents emphasized, legislators constitute 120 of the 132 elected officials affected by the term limits.
. Excluding California, 14 of the 20 states that have term limits employ consecutive term limits. See Bates v. Jones,
. Ballot arguments are arguments written by the proponents and opponents of an initiative, advocating the pros and cons of the measure. See id. §§ 9041-42. They cannot exceed 500 words. Id.
. By contrast, the state of Oregon's constitutional provision imposing a lifetime ban reads: "No person shall serve more than six years in the Oregon House of Representatives, eight years in the Oregon Senate, and twelve years in the Oregon Legislative Assembly in his or her lifetime." Ore. Const., art. II, § 19, cl. 1 (emphasis added).
.The remaining ballot language described the predicted financial impact of the measure, as required by California law. The actual text of the measure appeared nowhere on the ballot.
. For simplicity, we refer throughout this opinion to the respondent in the state court proceeding as the slate of California, or "the state." The actual respondent was the Secretary of State, March Fong Eu, whose duty it is to implement the principal provisions of the initiative. The respondent was represented by the state Attorney General, Daniel E. Lungren.
. The court also relied secondarily on the fact that, in his analysis, the Legislative Analyst described Proposition 140 as limiting " 'the number of terms that an elected state official can serve in the same office.' ” Id. at 505,
. The district court also granted Bates leave to amend his complaint to add as plaintiffs Assembly members Martha Escutia and Barbara Friedman, as well as voters from their respective districts. The voter-plaintiffs, Hernandez, Navar, Pena, Sculley, and Zarakov, voted for Escutia and Friedman in the past and wish to be able to do so in the future. Neither Escutia nor Friedman was a member of the Assembly, however, at the time of the Eu litigation. Escutia was first elected in 1992, and Friedman joined the Assembly following a special election in mid-1991.
The state argues that the district court abused its discretion in granting the original plaintiffs leave to join these additional plaintiffs. We disagree. Federal Rule of Civil Procedure 15(a) directs a court freely to grant a party leave to amend its complaint "when justice so requires” and "should be applied with 'extreme liberality.’ ” DCD Programs, Ltd. v. Leighton,
. We dispose of the appeal from the stay by separate order.
. Compare, e.g., Montana v. United States,
. See discussion of U.S. Term Limits, Inc. v. Thornton,
. The state also contends that the voter-plaintiffs from Bates' former district lack standing because they have alleged no injury that would be redressed by a decision invalidating the term limit provisions of Proposition 140. It suggests that because Bates is barred from running not by Proposition 140, but by the res judicata effect of Eli, a judicial ruling in favor of the voter-plaintiffs would not redress their injury. The argument is utterly without merit. Bates is not in fact barred by res judicata, and even if he were, it cannot be questioned that invalidation of Proposition 140's term limit provisions would enable him to run again and thereby redress the injury alleged by the voter-plaintiffs. It is Proposition 140, not the California Supreme Court’s interpretation and application of Proposition 140 in Eu, that prevents Bales from seeking re-election.
. The state contends that the constitutionality of Proposition 140 is controlled by Moore v. McCartney,
.The only circuit court decision that even considers the general subject of state term limits, League of Women Voters v. Diamond,
The state and the Schabarum inlervenors nevertheless cite a number of state and federal district court decisions for the proposition that the constitutionality of term limits for state officials is well established. The decisions establish no such proposition. Some of these decisions concerned executive or judicial officials, rather than legislators, while others addressed only the constitutionality of consecutive term limits. See Dutmer v. City of San Antonio,
. The Supreme Court has dealt with cases involving similar state interests in the equal protection context. The state’s interest in designing its own legislative structure was essentially the interest involved in Reynolds v. Sims,
. The Court cited as examples of such regulatory laws Burdick v. Takushi,
. U.S. Term Limits v. Thornton,
Justice Kennedy, who joined the Court’s opinion in U.S. Term Limits, wrote a separate concurrence explaining the differences between the majority and dissenting opinions regarding the Qualifications Clause. He did not, however, express any disagreement with the Court's view that lifetime term limits impose a severe limitation on the exercise of fundamental rights, nor did he disavow the historical analysis of that question that runs throughout the Court's opinion. Whatever one’s view of the outcome of any balancing test that may be used to determine whether the state's interest outweighs the burden inherent in limiting voters' rights, there should be little doubt that precluding all of the voters of the state from again voting for the candidates they have chosen to be their choice as their rеpresentatives severely limits their right to vote for whom they choose.
. The cases that the Court distinguished include all but one of the cases on which the state principally relies. While the Court did not mention Gregory in its decision, the reasons are obvious. First, the plaintiffs in Gregory did not assert any voting rights claim. Rather, the plaintiff-judges alleged only an equal protection violation, and no voter was a party to the proceeding. Moreover, there are three key differences between Missouri’s law in Gregory and the type of law to which the Court was referring. First, the judges did not run against other candidates in the elections; at the end of a fixed term, rather, a question appeared on the ballot as to whether they should be returned to office. See Gregory,
. States, however, are not free to create their legislative structures in violation of constitutional restraints. See Reynolds,
Nor, contrary to the state’s suggestion — which the dissent apparently adopts at least to some degree — may states insulate from judicial review their decisions regarding their political structures by claiming that they present nonjusticiable "political questions.” The Supreme Court has, for decades, soundly rejected this argument. See, e.g., Baker v. Carr,
. Contrary to the suggestion of the Schabarum intervenors, the ability of states to disenfranchise convicted felons does not demonstrate that permanent restrictions on the franchise are reasonable. The Court has held that the permanent disenfranchisement of convicted felons does not violate equal protection for the specific reason that it has "an affirmative sanction in § 2 of the
. This language stands in contrast not only to other stales' lifetime bans, see supra note 4, but also to the lifetime-presidential-term-limits provision of the U.S. Constitution. See U.S. Const., amend. XXII ("No person shall be elected to the office of the President more than twice ....") (emphasis added). Proposition 140’s drafters, therefore, easily could have presented to the voters an unambiguous lifetime-ban provision by simply tracking the language of the U.S. Constitution.
. California is no Lake Wobegon where all people are "above average,” see Garrison Keillor, Lake Wobegon Days (1985); nor, obviously, are 96% of the voters who cast ballots on the measure, pro or con, "average,” or above. (Ninety-six percent of the "yes" voters is the number of voters necessary to constitute a majority Of those voting.)
. We emphasize that the closeness of the vote is not necessary to our decision. Nevertheless, we note that the state now contends that "[n]o voter could have missed the point.” Supp. Br. at 2. In doing so, the state flatly contradicts its statements to the state supreme court regarding the measure's ambiguity. Ambiguity, in itself, shows that some vоters, at least, are likely to have “missed the point.”
. See, e.g., Kent v. Dulles,
. Specifically, the Court stated: "When the Federal Government asserts an overriding national interest as justification for a discriminatory rule which would violate the Equal Protection Clause if adopted by a State, due process requires that there be a legitimate basis for presuming that the rule was actually intended to serve that interest."
The Court’s Hampton decision was very much like two decisions in which the Court had applied due process to direct democracy in the context of restraints on the use of land. See Washington ex rel. Seattle Title Trust Co. v. Roberge,
. It is unclear from the Court’s decision whether it struck down Oklahoma’s law or whether it somehow merely held it inapplicable. Obviously, however, the result was the same: the Court held that the state could not enforce its law.
. Although the holding' was "unusual,” it certainly did not lack precedent. For another such holding, see Califano v. Goldfarb,
. See, e.g., Guido Calabresi, A Common Law for the Age of Statutes 70-71 (1982) (describing on paucity of procedural protections in initiative process); Julian Eule, Judicial Review in a Direct Democracy, 99 Yale L.J. 1503, 1525 (1990) (contrasting initiative measures with legislation).
. The financial cost of passing or defeating ballot measures, and of qualifying them for the ballot in the first place, is inordinately high. See, e.g., Coalition for Economic Equity v. Wilson,
. As Hans Linde, a former Justice on the Oregon Supreme Court, once explained:
Whatever the private goals of the sponsors, once a measure is drafted it is past systematic factfinding, analysis, amendment or compromise. Aside from newspaper editorials or an occasional voters' pamphlet, the debate leading to discussion is left to the electioneering slogans of competing advertising firms. Yet such a measure may repeal, alter, or contradict the most carefully studied and best designed enactment of the legislature.
Hans Linde, Due Process of Lawmaking, 55 Neb. L.Rev. 197, 228 (1976).
. Compare, e.g., Ogden v. Saunders,
It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favour of its validity, until its violation of the constitution is proved beyond all reasonable doubt. This has always been the language of this court, when that subject has called for its decision; and I know that it expresses the honest sentiments of each and every member of this bench.
Id. at 270.
. Any materials that advocacy groups circulate describing the initiative .are not analogous sources, for they are not produced by the voters through a deliberative process. Such materials are, at bottom, only advertisements. Relying on them as indicative of the voters' intent would be tantamount to relying on political parties' campaign advertisements to interpret legislative acts.
. Also compare San Diego Coast Reg'l Comm’n v. See the Sea, Ltd.,
. After stating that the California Courts may, under California law, examine material that lies "outside the four corners of the initiative” in order to determine voter intent, the dissent relies extensively on material either not before the California Supreme Court or rejected by it. We are aware, for example, that when the voters adopted Proposition 140 they also rejected Proposition 131, which among other things, provided expressly for state-financed election campaigns as well as consecutive term limits. The California Supreme Court did not mention Proposition 131 in its opinion and the state also does not mention it in its briefs in this case. The state, however, did point out the Proposition in its brief to the California Supreme Court and contended that the court could not reasonably conclude that the voters rejected Proposition 131 on the basis that its term limits were not permanent because "Proposition 131 was 14 pages long (Ballot Pamphlet, pp. 101-105) and covered several, complex issues ... [including] expenditures of public funds, but was vague on the certainty of commensurate revenues.” Br. of Secretary of State, Legislature of the State of Cal. v. Eu,
.Fundamental rights of course qualify as "liberty interests," thus triggering the protections of the Fourteenth Amendment’s Due Process Clause. See, e.g., Paul v. Davis,
. Voters may enforce all of these mechanisms in state court, but only to a limited extent. See Cal. Elec.Code § 9092 (allowing voters to seek a peremptory writ of mandate to require title, summary, or statement to be amended or deleted from ballot pamphlet). The California courts will issue such a writ, however, "only upon clear and convincing proof that the copy in question is false, misleading, or inconsistent with the requirements of [the election code].” Lungren v. Superior Court,
. In response to the court's question, "Must it be clearly put to [the voters] so that they know what they are voting on — so that they know that they are adopting these term limits for life?,” Professor Elhauge stated, "Well, I think if the question is should it be put to them that they are adopting term limits for life, uh, yes. And I think the answer to that is yes.”
. We also note that requiring a state to provide adequate notice of an initiative’s principal effect if that effect is to severely burden the people’s fundamental rights, constitutes a reasonable and effective method of safeguarding the people’s right to a republican form of government. Although. the Court in Pacific States ruled that the Guaranty Clause, U.S. Const., art. IV, § 4, did not impose a substantive limitation on the states’ ability to enact laws through the initiative process, nothing in that holding disqualifies federal courts from utilizing other techniques of judicial review to protect the constitutional values at stake. In fact, this is a very similar method to the one that the Court utilizes to protect the constitutional values implicated by its refusal to draw substantive boundaries to cabin the non-delegation doctrine, see Mistretta v. United States,
Dissenting Opinion
Dissenting:
I respectfully dissent. The majority opinion states its holding as follows:
Here, we hold as a matter of federal law that the state may not enforce Proposition 140’s lifetime legislative term limits because the provision imposes a severe limitation on the people’s fundamental right to elect whomever they choose and the voters were not provided with adequate notice of that limitation.
Maj. op. at p. 863.
The holding of this court ought to be:
The wording of Proposition 140 and the context in which it was debated before the election was sufficiently expressed to assure an informed vote thereon and Proposition 140 does not contravene the Fourteenth Amendment and the Bill of Rights as incorporated therein.
The voters were properly informed that Proposition 140 imposed lifetime limits and it does not “limit their most fundamental rights.” In fact, Proposition 140 is an expression of the fundamental right of the citizens of California to be served by state legislators holding office for such terms as they direct.
I.
NOTICE
The ambiguity issue raised by the majority was resolved satisfactorily by the Supreme Court of California in Legislature v. Eu,
The “Argument Against Proposition 140,” included in the ballot pamphlet accompanying the initiative, clearly states that legislative officers are “banned for life” after serving a set number of years. Ballot Pamp., Proposed Stats, and Amends, to Cal. Const, with argument to voters, Gen. Elec. (Nov. 6, 1990), p. 70-71. In fact, as the Eu court observed, the argument utilizes such unambiguous phrases 11 times. So too, an examination of the proposition by the Legislative Analyst noted that the term limits provision
In 1990, voters had not one but two term limit measures on which to pass judgment. In addition to Proposition 140, a coalition of reform-minded groups placed Proposition 131 on the ballot. Proposition 131 limited state executive officers to up to eight consecutive years of service, while legislators were restricted to 12 years in office. Proposition 131, however, also explicitly allowed officeholders to regain then- eligibility to run for the same elected position in the future, provided they sat out at least one term. The comments in the ballot pamphlet regarding Proposition 131 made it clear that the initiative imposed only consecutive, as opposed to lifetime, limits. Ballot Pamp. at 32.
Moreover, the clear choice facing voters— between the lifetime limits (imposed by Proposition 140) and consecutive term limits (imposed by Proposition 131) — received extensive media attention. See, e.g., Paul Jacobs, Term Limits Would Oust Lawmakers and a System, L.A. Times, Oct. 13, 1990, at A1 (noting that Proposition 140 would limit “lifetime service” in the legislature, while Proposition 131 would “force members of each house to move on after 12 consecutive years,” but would also allow them to run again after “sitting out a term.”); Steven A. Capps, Laumiakers lying low in Capitol quietly fighting Props. 131, ll^O, S.F. Examiner, Sept. 16, 1990, at B1 (noting that “most legislators consider Prop. 140 the more evil of the two initiatives” because it would impose “lifetime term limits.”).
In addition to the usual media attention afforded controversial ballot measures, the distinction between the two term limit schemes offered by Propositions 131 and 140 was highlighted even further when, five days before the election, the California Supreme Court issued a ruling directly involving the two initiatives. The court announced that when voters approved propositions that were in fundamental conflict, no part of the ballot measure receiving the fewer votes may take effect. Taxpayers To Limit Campaign Spending v. Fair Political Practices Comm.,
As of Sept. 30, 1990, polls indicated that voters were in favor of Proposition 131 by 50 percent to 34 percent, with 16 percent undecided. Proposition 140 was supported by 55 percent and opposed by 28 percent, with 17 percent undecided. George Skelton, Legislative Term Limits Backed by Big Margin, L.A. Times, Sept. 30, 1990, at Al. Only a week later, however, Proposition 131 was rejected by a margin of nearly two-to-one, while Proposition 140 was approved. This clearly suggests that the state Supreme Court decision may have prompted voters to make a conscious choice between what particular term limits plan they desired to implement, rather than expressing general support for both plans as the polls suggest they did prior to the ruling. Alternatively, it may be that other differences between the propositions swayed voters in the closing days of the campaign.
There is nothing in this record to suggest that any possible confusion on the part of California voters provides a basis for this Court to employ its power under the second sentence of Section 1 of the Fourteenth Amendment to set aside a state election. The people of California understood what they were voting for. The text of Proposition 140 indicates it was intended to curb “[t]he ability of legislators to serve unlimited number of terms.” Ballot Pamp. at 137 (Text of Proposed Law). To effectuate that end, the drafters of the measure stated precisely that “[n]o Senator may serve more than 2 terms ... [n]o member of the Assembly may serve more than 3 terms ...” Id. As the majority sees it, the absence of the words “during a lifetime” invalidates the proposition’s favorable vote. For the want of three words the proposition fails. To such uses is the revered Fourteenth Amendment now employed!
The Twenty-Second Amendment to the Constitution does not employ the clause “during a lifetime.” It provides, “[n]o person shall be elected to the office of the President more than twice ...” U.S. Const, amend. XXII. It is obvious that it means “during a lifetime.” Similarly, the language “no (Senator or Assembly member) may serve more than (2 or 3) terms” also obviously means service “during a lifetime.”
The majority can discover “ambiguity” and a failure to adequately inform the people only by distorting the precise language of Proposition 140 and employing a canon of construction resembling that which once applied in the common law in an action on the covenant. Bouvier’s Law Dictionary 251-52 (3d ed.1934).
II.
RIGHTS OF VOTERS
Nonetheless, the majority relies primarily on the assertion that Proposition 140 limits the fundamental right of voters to vote for those legislators who no longer can seek a previously held office. By linking this proposition with its еarlier determination that Proposition 140 did not provide adequate notice to the voters of its meaning, the majority reaches its improper and intrusive holding.
This holding represents a remarkable intrusion by the federal judiciary into the voter initiative process in the State of California and all other states in this circuit having such a process. It means, at the very least, that a term limits initiative measure can become effective only when approved by the federal courts. Only then can it be determined that proper notice was given or that the lack of such notice did not affect the outcome. The likelihood of similar safeguards being designed by which other types of voter initiatives may be measured is not remote.
However, for purposes of this dissent, it will be assumed that the majority’s holding is applicable only to voter initiatives instituting term limits. As to such it holds they “impose a severe limitation on the people’s fundamental right to elect whomever they choose.” Such voter initiatives can be rejected by a majority of the voters, but apparently they cannot be adopted by a majority, no matter what its size, without the intensive judicial scrutiny set forth above. This lack of symmetry exposes the flaw in the majority’s “fundamental right” impairment analysis. The majority opinion regards term limits as specifically directed at a group of voters having nothing in common other than the fact that they lost an election on term limits. To provide protection to this group, the majority opinion creates a fundamental right “to elect whomever they choose.” This amounts to holding that when a majority of voters impose term limits on state legislators they engage in a constitutionally suspect act, suggesting a form of discrimination deserving strict scrutiny for purposes of determining the Fourteenth Amendment’s application.
For example, Burdick v. Takushi,
Even more restrictive measures were upheld by the Supreme Court in Clements v. Fashing,
The Court focused on two lines of “ballot access” cases. First are those involving classifications based on wealth, and those involving classification schemes that impose burdens on new or small parties or independent candidates. Both must be subjected to heightened scrutiny. Id. at 962-65,
Three cases decided prior to those just mentioned also involved state laws that can be placed under the heading of state self-governance. These were Storer v. Brown,
The Court in American Party of Texas also rejected several constitutional challenges to the Texas Election Code. In so doing, it observed that the Code “affords minority political parties a real and essentially equal opportunity for ballot qualification. Neither the First and Fourteenth Amendments nor the Equal Protection Clause of the Fourteenth Amendment requires any more.”
In Jenness, the Court upheld a substantial barrier to access to the ballot in the general election by a candidate who did not enter and win a political party’s primary election. Access by such a person required that there be
These authorities amply demonstrate that there is no “fundamental right to vote for whomever one chooses.” True, the right to vote cannot be restricted by a classification or requirement based on wealth. See Lubin v. Panish,
III.
U.S. TERM LIMITS, INC. v. THORNTON,
Thornton - does not support the arguments against term limits. At page 837,
Term limits, like any other qualification for office, unquestionably restrict the ability of voters to vote for whom they wish. On the other hand, such limits may provide for the infusion of fresh ideas and new perspectives, and may decrease the likelihood that representatives will lose touch with their constituents. It is not our province to resolve this long-standing debate.
We are, however, firmly convinced that allowing the several States to adopt term limits for congressional service would effect a fundamental change in the constitutional framework.
Thus, Thornton did not hold that term limits per .se are unconstitutional. What it held was that the Qualifications Clause of the Constitution, Article I, Section 5, proscribed the establishment of term limits by a state for its representatives and senators serving in the Congress of the United States.
The constitutional philosophy supporting this holding was expressed concisely by Justice Kennedy in his concurring opinion:
Federalism was our nation’s own discovery. The Framers split the atom of sovereignty. It was the genius of them idea that our citizens would have two political capacities, one state and one federal, each protected from inclusion by the other. The resulting Constitution created a legal system and form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it. It is appropriate to recall these origins, which instruct us as to the nature of the two different governments created and confirmed by the Constitution.
Thus, Thornton does not control this case. Its reach is limited to proscribing efforts by the states to limit the terms of members of the Congress of the United States chosen by the electorate of such states. It imposes no constitutional bar to term limits enacted by a direct vote of the people of a state on their representatives in the state’s legislature.
IV.
TERM LIMITS AS A POLICY
Term limits, to repeat, are part of the Constitution of the United States, with respect to the office of the President of the United States. U.S. Const, amend. XXII.
Term Emits appEeable to executive and legislative officials has an appeal to the ordinary citizen whose instincts and experience strongly suggest that such officials can, and sometimes do, abuse the power they possess. Even judges do not always escape this public suspicion, despite the fact that their power is more passive and quite procedurally circumscribed.
The support for term Emits is not solely instinctual, however. Several substantial rational arguments can be made in their favor. The strongest is that long-term state legislators inevitably create a power center within the body in which they serve that often results in providing more financial and other types of benefits to their constituency than to other constituencies. This enhances the prospects of their reeleetion and the continuation of their practices. In time this uneven and often excessive misaUocation of public resources becomes visible even to those members of the pubEc who seldom devote close attention to state legislative activities. To this portion of the public, as well as to some who follow these matters more closely, the imposition of term Emits appears to be a way to Emit this tendency.
Legislative fiefdoms resulting in long-term service by a legislator also can enable that legislator to defy the majority will, at least for a significant period of time, on a matter of statewide importance. Less frequently, but of more serious consequences, is the legal and moral corruption of the long-term legislator. Whether Lord Acton was completely right or not, it is a fact that substantial power long held is a fertile source from which corruption can spring.
However, the arguments against term Emits are also strong. First, our experience with Congress and other state legislative bodies is that unbroken service by a legislator or congressman provides the states and the United States with many persons of great experience and wisdom, without whom all would be poorer and less enlightened.
Moreover, there is force in the contention that the people of a particular constituency should be entitled to elect an incumbent for as long as they choose.
The truth is that term Emits and their absence are both reasonable policies with respect to those who serve as state legislators. Moreover, the states, consistent with their unique ability to serve as a laboratory in which certain political theories and practices are tested, should be permitted to experiment with term Emits. To impose a constitutional ban against California’s term limits experiment is both improper and insensitive to the federal nature of the United States. Experiments of this type are an often heralded feature of federalism. See, e.g., New State Ice Co. v. Liebmann, 285 U.S. 262, 311,
. Proposition 131 would have allowed taxpayers to divert up to $5 per year of their state taxes to a special election fund that would provide partial funding for the campaigns of all state officials. It would also have instituted a ban on non-election year fund raising, and limited total spending for candidates who refused public funds. Proposition 140 slashed operating funds for the legislature and eliminated the legislative retirement system.