US Supreme Court Briefs

No. 99-929

Supreme Court of the United States



On Writ of Certiorari to the United States Court
of Appeals for the Eighth Circuit

SIDLEY & AUSTIN Attorney General of Missouri
1722 Eye Street, N.W. JAMES R. LAYTON
Washington, D.C. 20006 State Solicitor
Chief Counsel for Litigation
Assistant Attorneys General
P.O. Box 899
Jefferson City, MO 65102

(573) 751-3321

Counsel for Petitioner
September 13, 2000 * Counsel of Record


A. The State Does Not Compel Speech By Pro-
viding Information On The Ballot 11
B. Even If Ballot Information Compelled Speech,
The People's Interest In An Informed Elect-
orate Outweighs Any Minor Effect The Infor-
mation Has On A Candidate's Speech 13





Buckley v. Valeo, 424 U.S.
1(1976) 17
Burnsv. United States, 501
U.S. 129 (1991) 2
Doe v. United States, 487
U.S. 201 (1988) 9
Foster v. Love, 522 U.S.
67 (1997) 8
Hawke v. Smith, 253
U.S. 221 (1920) 9
Hill v. Colorado ___ U 5 ___
120 5. Ct. 2480
(2000) 10
Mcintyre v. Ohio Elections
Comm 'n, 514 U.S.
334 (1995) 14
Minneapolis & St. Louis
Ry. v. Beckwith, 129
U.S.26(1889) 9
Nixon v. Shrink Missouri
Gov 't PA C, ___ U.S.
___ 120 5. Ct. 897 (2000) 12, 14
Ohio ex rel. Davis v.
Hildebrandt, 241 U.S. 565
(1916) 79
Paulv. Davis, 424 U.S.
693 (1976) 12, 13
Prune Yard Shopping Ctr.
v. Robins, 447 U.S. 74
(1980) is
Rankin v.
McPherson, 483 U.S.
378 (1987) 15
Rice v. Cayetano,
___ U.S ___ 120 5. Ct. 1044
(2000) 12
Riley v. National
Fed'n of the Blind
of North
Carolina, Inc.,
487 U.S. 781
(1988) 13
Smiley v. Holm,
285 U.S. 355
(1932) 7, 9
Spallone v.
United States,
493 U.S. 265
(1990).... 10, 16
Tashlian v.
Republican Party,
479 U.S. 208
(1986) 9, 11,17
Timmons v. Twin Cities
Area New Party, 520
U.S. 351 (1997) 8, 13, 14
United States v. Johnson,
383 U.S. 169
(1966) 6
US. Term Limits, Inc. v.
Thornton, 514 U.S.
(1995) 16
U.S. Const. art. I, 2
(Qualifications Clause)
U.S. Const. art. I, 3, ci.
3 (Qualifications Clau
Page 11
se) 11
U.S. Const. art. I,
4 (Elections Clause) 7, 8, 9, 10
U.S. Const. art. I,
6 (Speech or
Debate Clause).. 6,
U.S. Const. art. V 4, 9, 11
U.S. Const. amend. I passim
U S. Const. amend. V 9
U.S. Const. amend.
Mo. Const. art. III,
49 7
Mo. Const. art. VIII,
15-22 passim

Mo Rev Stat
1999) Mo Rev
Stat 115.439(1994)
Quotations, (Gorton
Carruth & Eugene
Ehrlich eds., 1992) 18
I Annals of Congress
(Joseph Gales ed., 1789) 2, 3
The Declaration of
independence (U.S. 1776) 17
The Federalist No. 22
(Alexander Hamilton)
(Clinton Rossiter ed.,
1961) 4, 16
The Federalist No. 57
(James Madison) (Clinton
Rossiter ed., 1961) 6
The Federalist No. 84
(Clinton Rossiter
ed., 1961)
3, 4
Official Manual of
the State of
Missouri 1997-
1998 (Jim
Grebing ed.,
I Republic of
Letters. The
Between Thomas
Jefferson and
James Madison
Morton Smith
ed., 1995)

Reed Dickerson, Statutory Interpretation: Page ~upreme ~tiourt of tfr ~rnteb ~'tate~
Dipping into Legislative History, 11 Hofstra L. No. 99-929
Rev. 1125 (1983) 2




On Writ of Certiorari to the United States Court
of Appeals for the Eighth Circuit


In their brief, Respondents demonstrate that they do not
understand the essential import of the present case.1 This is not
a case about the right of the State to coerce Senators and
Representatives on routine legislative matters. This case is
about something much more fi.indamental: the "manner" in
which the State conducts elections to promote the State elect-
orate's strongly held preference to enact an amendment to the
United States Constitution making representative democracy
more responsive to the voters. Because the exercise of this
right does not infringe on any constitutional rights or coerce

Despite the fact that Respondents previously claimed that this case
presented myriad constitutional concerns, Resp. Br. in Opp. 3 & 6, they
now attempt to muddle the case by proposing a single, misleading
question. Resp. Br. i. But this Court granted certiorari on three
questions raising four distinct constitutional issues, and each of these
questions must be resolved to determine the validity of the provisions
of Article VIII as they relate to incumbent and non-incumbent


speech by candidates, Missouri's Article VIII is
constitutional in its entirety. Accordingly, the attempt by
Respondents, the United States and the Eighth Circuit to
undermine Missouri's popularly adopted effort to enhance
the quality of representation of federal officials should be
rejected and the holding below reversed.


Notwithstanding that the court of appeals purported to find
Article VIII in violation of four different
constitutional provisions, Respondents devote significant
attention (Resp. Br. 21-32) to an argument not grounded
in any existing constitutional provision, i.e.,
that the Framers rejected a proposal to allow the States to
instruct congressional representatives. Their argument is irrelevant
both legally and factually. It is certainly strange to argue that the
failure to adopt a particular constitutional amendment says
anything about whether the exercise of a particular power by the
people of a State is prohibited. See Reed Dickerson, Statutory
Interpretation: Dipping into Legislative History, 11 Hofstra
L. Rev. 1125, 1133 (1983); see also Burns v. United
States, 501 U.S. 129, 136 (1991) ("[n]ot every silence is
pregnant") (alteration in original)
(internal quotation marks omitted).
Moreover there is no comparison
between the constitutional provision
the Framers declined to enact and
Article VIII. At the time, instructions were
formally binding. I Annals of Congress 763, 764
(Joseph Gales ed., 1789). A Represent-
ative who failed to act in accordance
with their instructions would be
deemed to have violated the Constitution
itself Id at 764. Further, it was believed by many that any
law passed in violation of the instructions of a majority of the
Representatives would be of no force. Id at 767.

In part, it was because of the legally binding nature of
the proposed instruct provision that Madison opposed it.
Madison believed that the people had no right "to instruct
their representatives in such a sense as that the delegates
are obliged to conform to those instructions." Id. at
766. Thus, as Respondents accurately contend,
Madison was against binding instructions. Resp. Br. 22-23.

His opposition to binding instructions was not the only
reason Madison opposed the instruct provision. He was
also against it because he thought instructions, if non-
binding, were redundant. To the extent the proposed
instruct provision merely acknowledged the right of the
people to instruct their Representatives, who were then
free to disregard the instructions at their peril, such a
provision was unnecessary. It was already provided for by the
First Amendment.2 1 Annals of Congress at 766.

The instructions in Article VIII are the same as those that
Madison already believed to be protected by the
Constitution. They are not the type of binding
instructions that he and the other Framers rejected.
Missouri's instructions merely inform the State's
congressional delegation of their constituents' wishes. The
Senators and Representatives remain free to vote as they
deem appropriate. In sum, Respondents' focus on the
Framers' actions concerning congressional instructions
provides no constitutionally textual basis for challenging
Article VIII and does nothing to undermine the extensive
history of the use of instructions set out in Petitioner's
opening brief Pet. Br. 10-17.

2 Alexander Hamilton observed that in the Constitution "the
people surrender nothing; and as they retain everything they
have no need to particular reservations." The Federalist No. 84, at
513 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Despite
this, Respondents erroneously contend that the people's failure to
include an unnecessary reservation of right precludes them from
issuing non-binding instructions to their representatives. Resp. Br.
13 n.9.

4 5


Article VIII was passed pursuant to the people's delegated
power to regulate the manner of elections to promote democratic
values. It was put on the ballot by the people of Missouri. It was
voted on and approved by the people of
Missouri. And it was placed in the State Constitution by the
people of Missouri. While the Elections Clause purports
to grant federal power to the State Legislatures as
Respondents contend, this point overlooks
the basic fact that all power in our
system emanates from the people. The Federalist No. 22,
at 152 & No. 84, at 513 (Alexander Hamilton)
(Clinton Rossiter ed., 1961). Here the people exercised an
aspect of that power the right to instruct their congressional
delegation and the right to receive timely and accurate information
about the behavior of federal candidates.

Apparently recognizing these inherent rights, Respondents and
their amici fail to argue that the people lack the right to alter the
form of their government pursuant to Article V by instructing their
delegates to Congress. See Resp. Br. 47-50. Instead,
Respondents argue that it is the State that will place the
information on the ballot that allegedly coerces members


In their briefs, Respondents and the Missouri League of
Women Voters (LWV) raise a purely academic issue. They point
out that "a majority of voters in a particular congressional district
may not have voted in favor of term limits." LWV Br. 11; see also
Resp. Br. 41. Thus, a candidate who votes against the people's
term limits proposal "may be following the instruction of a
majority of the voters in her district," but she will have a ballot
notation placed after her name. LWV Br. 12; see also Resp. Br.
41. This issue is not presented here because Article VIII was
passed by the voters in each of Missouri's Congressional Districts.
Official Manual of the State of Missouri 199 7-1998, at 103 & 591
(Jim Grebing ed., 1997). As a result, no candidate in Missouri
will be faced with the choice hypothesized by the Respondents and
of Congress into proposing a constitutional amendment.
Concededly, it is the Secretary of State who is actually
responsible for physically placing the information on the ballot,
but she acts solely at the behest of and as an agent for the
electorate. She places ballot information next to an incumbent
candidate's name if, and only if, the candidate meets one of the
people's criteria specifically outlined in Article VIII, Section 1
7(2)(a-g);4 and next to a non-incumbent's name if, and only if, the
candidate refuses to take the pledge offered by the people as
set forth in Article VIII, Section 18. In either case, the
Secretary has no discretion, and her duties are purely

Further, the only role played by the judiciary is to ensure that
the Secretary of State exercises no discretion, and that she simply
performs the duties assigned to her by the citizenry. If either
an elector or an elected official believes that the Secretary
either improperly placed or improperly failed to
place a ballot notation, then he or
she may challenge the matter before
the Missouri Supreme Court.5 And the

The United States apparently misunderstands these
provisions of the Missouri Constitution. In its brief, it claims
that "lain incumbent candidate could scarcely make speeches in
Congress against the term limits amendment and escape the ballot
label, since the Amendments instruct Members to use all of their
delegated powers to pass the amendment." U.S. Br. 20 (emphasis
in original). While the instruct provision of Article VIII does
direct elected officials to use all of their powers; it is separate
from the inform provision. Under the inform provision, a ballot
label will only be placed after an official's name if he fails to
engage in the eight specified behaviors described in Section 17(2).
And Section 17(2) does not in anyway inhibit an elected official's
right to speak freely. Thus, an elected official who merely speaks
out against term limits escapes the imposition of the ballot
notation. Unfortunately, the failure to differentiate between the
instnuct and the inform provisions of Article VIII is a common
mistake. It was made by the district court, the court of appeals,
and now by the United States itself.

The United States claims this procedure will require Senators
and Representatives to "justifY' their actions to the judiciary, and
thus it runs

6 7

court will base its decision only on the factors contained in
Sections 17(2) and 18. No impermissible executive orjudicial
action is taken;6 these government officials simply assure that the
electorate has before it the accurate information requested.

Respondents seem to suggest that because federal legislators
have national responsibilities exceeding the geographical
boundaries of their districts or states, that legislators enjoy
autonomy from their constituents. Resp. Br. 33. Federal
legislators, once elected, are free to ignore their constituents'
wishes during their term and this autonomy continues
unabated under Article VIII. But this autonomy ends when the
legislator seeks re-election. At that moment, autonomy yields to
accountability. See The Federalist No. 57, at 352 (James
Madison) (The Constitution's protections "would be found very
insufficient without the restraint of frequent elections. Hence . . .
the House of Representatives is so constituted as to support in
the members an habitual recollection of their dependence
on the people."). All Missouri voters have done is decide that,
while making their political decisions, they want to know whether
their autonomous legislators have behaved in a fashion
inconsistent with their constituents' wishes. Such knowledge does
not violate principles of federalism and is entirely consistent with
the Elections Clause.

afoul of the Speech or Debate Clause. U.S. Br. 24. But the
United States misunderstands Missouri's procedure. If an elected
official failed to perform the duties outlined in Mo. Const. art.
VIII, 17(2)(a)-(g), no amount of justification or rationalization
will prevent the placement of ballot information after his name.
And if an elected official actually performs the duties cited in
Article VIII, no amount of professed or apparent animus to the
people's proposed Term Limits Amendment will result in the
placement of ballot information after his name.
6 Because Article VIII does not involve any impermissible
action by either the executive or judicial branch, it does not violate
the Speech or Debate Clause. United States v. Johnson, 383 U.S.
169, 179 (1966).
Respondents are correct in noting that, pursuant to the
Elections Clause, only the "State Legislature" may
regulate the "Times, Places and Manners of holding
Elections." Resp. Br. 12 (quoting U.S. Const. art. I, 4,
cI. 1). Thus, the State may pass laws "governing just 'the
mechanics of congressional elections."' Resp. Br. 13
(quoting Foster v. Love, 522 U.S. 67, 69 (1997)) (emphasis
in Resp. Br.). Though Respondents properly acknowledge
the grant of power, their argument that the delegation is
inadequate to support Article VIII fails because they do
not appreciate the breadth of the grant in Article I,
Section 4.

Initially, seizing on the "State Legislature" language of
the Elections Clause, Respondents contend that Article
VIII is invalid because it was passed by popular referendum
and not by a State Legislature. Resp. Br. 12-13 n.8. They
distinguish Ohio ex rel. Davis v. Hildebrandt, 241 U.S. 565
(1916), in which this Court recognized that an elections law
passed by the people and not the State Legislature was valid, by
noting that Congress, by statute, had there expressly approved use
of the referendum process. Thus, Respondents argue that, in the
absence of Congressional action, only a State Legislature may pass
a law impacting federal elections. This argument is without legal
merit. As this Court has explained:

It is manifest that the Congress had no power to alter Article
I, section 4, and that the Act of 1911, in its reference to
state laws, could but operate as a legislative recognition of
the nature of the authority deemed to have been conferred by
the constitutional provision. And it was because of the
authority of the State to determine what should constitute
its legislative process . .

under the Elections Clause that the regulation in Davis was
sustained. Smiley v. Holm, 285 U.S. 355, 372 (1932). In
Missouri the people are included in the legislative process. See
Mo. Const. art. III, 49. And as this Court noted, that is the
State's right. Smiley, 285 U.S. at 372-73. Therefore,

8 9

Article VIII is not invalid simply because it was passed by the

Nor did the people exceed the authority granted by Article I,
Section 4. As mentioned, the people may regulate the "manner"
and "mechanics" of elections. U.S. Const. art. I, 4, cI. I;
Foster v. Love, 522 U.S. 67, 69 (1997). This is a "broad
power." Timmons v. Twin Cities Area New Party, 520 U.S.
351, 358 (1997) (quoting Tashjian v. Republican Party, 479
U.S. 208, 217 (1986)). Moreover, there is no reason for the Court
to artificially restrict the authority of the State because Article I,
Section 4 contains its own safety valve by which Congress can
override any election procedure the State imposes. Thus, the
structure of Article I, Section 4 indicates that the States were
granted extensive power in the election process. And Article VIII
falls well within the sweep of that power.

Article VIII is merely a regulation on the manner and mechanics
of elections. It regulates what information appears on the ballot.
Thus, it is similar in kind to other ballot-oriented regulations,
such as the placement of party labels and nicknames on the ballot.
And this Court has never found the placement of these items on
the ballot to be unconstitutional.7

In fact, in rejecting an assertion that party labels mislead
voters, the Court stated that "[t]o the extent that party
labels provide a shorthand designation of the views of party
candidates on matters of public concern, the identification of
candi1 Respondents contend that, pursuant to the Court's
holding in
Timmons, the Elections Clause "plainly forbids" the people from
communicating to themselves on their own ballot. Resp. Br. 19.
This is a wholly incorrect reading of Timmons. In Timmons, the
Court held that it was constitutionally sound for a State to curtail
a political party's use of the ballot as a communicative tool. But
the fact that a State may curtail an activity does not remotely
suggest the conclusion that a State must curtail an activity. And,
the Timmons Court did not issue a mandate requiring States to
stamp out any attempt to use the ballot as a communicative tool.
dates with particular parties plays a role in the process by which
voters inform themselves for the exercise of the franchise."
Tashjian v. Republican Party, 479 U.S. 208, 220 (1986).
Article VIII does nothing more. And despite the fact they bore the
burden of demonstrating that Article VIII was not a regulation of
the manner of elections, Respondents offered no evidence to the
District Court to the contrary. JA.

Instead, in a new attempt to rebut Article VIII's
validity, Respondents try to incorporate into Article I,
Section 4, the definition of time, place, and manner utilized
by this Court in its First Amendment jurisprudence. Resp.
Br. 13-14 (citing Wardv. Rock Against Racism, 491 U.S.
781 (1989)). This Court has never used the First Amendment's
definition of time, place and manner when interpreting the
Elections Clause. Nor is there any indication that the Court
even considered the Elections Clause when it developed its
First Amendment content-neutrality doctrine. The mere coincid-
ence of language proves nothing. The Constitution is replete with
examples of the same language being infused with different
meanings. To use an example relevant to the present
action, this Court has interpreted State Legislatures to mean only
State Legislatures for the purposes of Article V, Hawke v.
Smith, 253 U.S. 221, 227 (1920), while it has interpreted State
Legislature to include actions by the people themselves for the
purposes of the Elections Clause.8 Davis, 241 U.S. at 568-569;
Smiley, 285 U.S. at 372.

Like all forms of interpretation, the Court must
consider context. Here the Constitution granted the States
broad power to regulate the process of elections, which
inherently includes

8 Similarly, for the purposes of the Due Process Clause, this
Court has found the word "person" to include corporations,
Minneapolis & St. Louis Railway v. Beckwith, 129 U.S. 26, 28
(1889); but it does not count corporations as persons for the
purposes of the Fifth Amendment's Self-Incrimination Clause. Doe
v. United States, 487 U.S. 201, 206 (1988).

10 11

the content of the ballot itself The Constitution then delegates to
Congress the power to check the State if the former decides in its
unfettered discretion that certain ballot forms are inappropriate. In
that context, there is no room for additional judicial oversight
based on content. Thus, there is no reason to incorporate concepts
derived from a very different constitutional context to restrict the
State's otherwise sweeping power. Accordingly, the use of similar
language is dispositive of nothing. And in the absence of any
evidence that this Court or the Framers ever intended to utilize the
First Amendment definition of time, place and manner when inter-
preting the Elections Clause, no purpose is served by importing
alien doctrines designed for different purposes into Article I,
Section 4.

But even if the Court were to look to First Amendment
principles in defining Article I, Section 4, Article VIII would still
pass constitutional muster. Respondents and their amici allege
that Article VIII is not content neutral because it would require the
State to look at the content of a candidate's speech. But a statute
may still be content neutral even though it requires an analysis of
the content of the speaker's speech. Hill v. Colorado, ___ U 5 ___
120 5. Ct. 2480, 2492 (2000). If the analysis is brief and designed
to simply determine the applicability of the statute, then the
statute is content neutral. That is all that occurs under Article VIII;
the Secretary of State reviews the alleged "speech" of
Congressional candidates9 to determine whether ballot
information is applicable. This activity does not take Article VIII
out of the content-neutral rubric.

~ As Petitioner demonstrated in her iintial brief, Article VIlI does
not even regulate speech. Pet. Br. 32-34. Instead, it is a simple
comment on behavior. See, e.g., Spallone v. United States, 493 U.S.
265, 302-03 n. 12 (1990) (Brennan, J., dissenting) ("[wlhile the act of
publicly voting on legislation arguably contains a communicative
element, the act is quintessentially one of governance;" and thus not
protected by the First Amendment).

Article VIII does not run afoul of the First Amendment; it does
not compel speech, it does not even regulate speech. To the extent
it affects speech at all, the effect is minimal and is outweighed by
the citizens' interest in passing Article VIII. Despite these facts,
Respondents argue that the people violate a candidate's First
Amendment rights by commenting on her actions or inactions. 10

A. The State Does Not Compel Speech By
Providing Information On The Ballot.

Apparently recognizing that Article VIII does not include any
specific fine or criminal penalty, Respondents argue that Article
VIII's ballot information compels speech because it threatens a
politician's "livelihood." Resp. Br. 18.11 But it is

10 Respondents contend that the ballot information provisions
of Article VIII violate only their free speech rights. Thus,
Respondents are not challenging Article VIII, Sections 15, 16, and
17(1) on First Amendment grounds. This same observation would
appear to apply to Respondents' Speech or Debate and
Qualifications Clauses claims. It is unclear whether Respondents
continue to assert that these sections of Article VIII violate federal
Article V, or whether they limit their Article V attack to Sections
17(2), 18 and 19 of Missouri's Article VIII.
II Similarly recognizing that the State has a strong interest in
ensuring an informed electorate, see Tash]ian, 479 U.S. at 220,
Respondents also attack the quality of the information provided by
Article VIII labeling it "pejorative," Resp. Br. 34, and "misleading,"
Resp. Br. passim (dissecting the infonnation to focus on only one of
its parts). But this labeling is not analysis and the language the
people emptoyed is undeniably truthful. The non-incumbent
candidate either took the pledge or did not. The incumbent
candidate either engaged in the legislative behaviors about which
the public had an interest or not, and if not, thereby failed to
follow the voters' instructions. There is nothing misleading.

12 13

not the information that threatens a politician's livelihood; it is, if
anything, the politician's failure to respond to the will of his
constituency that has such an impact. The inclusion of ballot
information will not prevent the candidate from appearing on the
ballot, nor will it bar the candidate from service in Congress.
The ballot information simply educates the voters who
then put the information to whatever use they see fit. If any
negative action is taken as a result of that education, it will be
taken by the voters themselves.

This distinction between the State actually imposing the
penalty, and the State providing information that may result in a
penalty imposed by others is a crucial one. In Paul v. Davis,
424 U.S. 693 (1976), this Court recognized that the Constitution
affords people little protection from such privately imposed
penalties. In Paul, a government official passed out fliers
branding Davis "an active shoplifter." As a result, Davis claimed
he experienced difficulty in gaining employment, i.e., his
livelihood was damaged. The Court concluded that Davis had no
claim. The Court stated that:

Though Article VIII's two informational sentences are not
distinguished by Respondents in their analysis, the sentence for
non-incumbents is neutral and the sentence for incumbents cannot
be accurately labeled pejorative because of one negative phrase.
Voters will not see "disregarded voters' instructions" in a vacuum;
they are smarter than that. See Rice v. Cayetano, U 5 ___ 120 5. Ct.
1044, 1060 (2000) (It is presumed that citizens will "cast a
principled vote."). Rather, the electorate will see that the object of
each informational sentence is "term limits" This information is
provided equally to supporters and opponents of the term hnuts
amendment to act on or ignore.
"It may be assumed that the listing is hurtful to their
prestige, reputation and earning power. . . . This designation,
however, does not prohibit any business of the [individual],
subject [him] to any punishment or deprive [him] of liberty
of speech or other freedom."

Id at 704 (alterations and omission in original) (quoting Joint
Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123,
202 (1951) (Reed, J., dissenting)). To the extent Davis suffered
any penalty, it was "applied by public disapproval, not by law."
Paul, 424 U.S. at 704 (quoting McGrath, 341 U.S. at 183-84
(Jackson, J., concurring)). As a result, Davis had no claim
against the government for being labeled an "active shoplifter."

Similarly, Article VIII does not give rise to a compelled speech
claim.'2 The inclusion of ballot information does not bar the
candidate from service in Congress. Voters still make the
decision, among all the available choices, who will serve in
Congress; they simply make that electoral decision with the
benefit of the information they requested. And, as the Court
recognized in Paul, neither Respondents, nor anyone else, has the
constitutional right to be free from the public's sentiment.

B. Even If Ballot Information Compelled
The People's Interest In An Informed
Outweighs Any Minor Effect The
Has On A Candidate's Speech.

To the extent it regulates speech at all, the ballot information
should not be subjected to this Court's strict scrutiny test. As the
Court made clear in Timmons, there is no one test

In any event, the term "pejorative" is unanalytical. It cannot
substitute for coercion without proof that the ballot information
in fact coerces speech. And Respondents' two-page summary
judgment motion does not remotely prove that there is an
unacceptable impact on speech. See, e.g., Nixon v. Shrink Missouri
Gov 't PAC ___ U 5 ____ 120 S Ct. 897, 907-08 (2000) (mere conjecture is
inadequate to carry a First Amendment burden).

12 It is interesting to note that in a compelled speech case,
where the government actually attempted to compel speech by a
private party, the Court noted that "the State may itself publish"
the information it wanted the public to have. Riley v. National Fed
'n of the Blind of North Carolina, Inc., 487 U.S. 781, 800 (1988).
Respondents seemingly reject this proposition.


for determining whether an election law affecting speech violates
the First Amendment. 520 U.S. at 358-59 (citing Burdick v.
Takushi, 504 U.S. 428 (1992)). See also Nixon, ___ U.S ___ 120
5. Ct. at 903 (declining to apply a label that encompasses
"[p]recision about the relative rigor of the standard" to be applied).
An application of strict scrutiny is particularly inappropriate
"where constitutionally protected interests lie on both sides of the
legal equation." Nixon, 120
S. Ct. at 911 (Breyer, J., concurring). Though there is not a
specific test, the essence of the analysis is the balancing of the
burden the election law places on the plaintiffs rights against the
nature of the government's interests. Timmons, 520 U.S. at 358-

Despite the Court's call for the application of a balancing test in
the area of elections law, Respondents claim that Article VIII
should be subjected to strict scrutiny. They rely on Mcintyre v.
Ohio Elections Commission, 514 U.S. 334 (1995), for this
assertion, but this reliance is misplaced. In McIntyre, the Court
concluded that because the statute at issue, a ban on anonymous
pamphleting, did not regulate "the mechanics of the electoral
process," the "ordinary litigation" test for elections cases did not
apply. Id at 345.

Unlike the pamphleting ban at issue in Mclntryre, Article VIII
regulates the mechanics of elections. It regulates what
information will appear on the ballot. Thus, it is similar in
kind to other ballot-oriented regulations, such as the placement of
party labels and nicknames on the ballot.13 As a result, Article VIII
is subject to this Court's balancing test.

Respondents argue that ballot information provisions of
Article VIII are much different from the placement of party labels on
the ballot. Resp. Br. 14-15 n. 12. They contend that by placing party
labels on the ballot, the State is communicating nothing. It is
doubtful that Democrats and Republican candidates in the South
believed this in the early part of the Twentieth Century. Moreover
Respondents' other arguments undercut this point. Respondents
argue that, by placing ballot information concerning term limits
on the ballot, the State is communicating that this is an

Article VIII, if it places any burden at all, places only a minimal
burden on the free speech rights of candidates for Congress.
Candidates can speak as they please. The only two things that will
prompt the people to place ballot information next to a candidate's
name are: the incumbent candidate's behavior in Congress and the
non-incumbent candidate's failure to take the pledge. Thus,
the people comment on only the narrowest range of activities,
and the magnitude of any possible restriction on speech created by
Article VIII is, at most, small. ~

Further, as to incumbent candidates the restriction is lessened
still by the fact that they, as government employees, do not enjoy
complete First Amendment protection for their actions taken
within the scope of employment. See, e.g., Rankin v.
McPherson, 483 U.S. 378, 390 (1987) ("The burden

important issue worth basing a vote on. Resp. Br. 15. This argument
carries equal weight as to party labels. By placing party labels on the
ballot, the State is communicating that party affiliation, or lack
thereof, is an important matter on which a vote should be based. In
fact, party affiliation is considered such an important consideration,
Missouri law allows voters to use it as the sole basis for casting a
ballot. See Mo. Rev. Stat. 115.439.1(1) (1994) (allowing voters
to vote a straight, party-line ticket). Thus, if Respondents'
arguments are true, then the ballot information of Article VIII is
no more a violation of the Constitution than party labels.
14 Further, as Petitioner demonstrated in their imtial brief, Pet.
Br. 37,
this restriction is further narrowed by the candidate's opportunity
to disassociate herself from the ballot notation. See Prune Yard
Shopping Ctr. v. Robins, 447 U.S. 74 (1980). Respondents claim that
candidates are deprived of the opportunity to disassociate themselves
because the voters will not receive the message until the crucial
moment of voting. Resp. Br.
42-43. This argument neglects Missouri law. In the weeks prior to the
election, a sample ballot is published in the various newspapers of
Missouri. Mo. Rev. Stat. 115127.2 (Supp. 1999). And if an area is
not serviced by a newspaper, then a sample ballot will be mailed to
the voter's homes. Id 115127.4 (Supp. 1999). Therefore, voters
generally will know the ballot's contents before the election. And
as the voters will be aware of the contents of the ballot, candidates
will have an opportunity to disassociate themselves from any
information contained thereon.

16 17

of caution employees bear with respect to the words they speak
will vary with the extent of authority and accountability the
employee's role entails."). This Court has long recognized the
right of the government, within limits, to constrain the
speech of its employees. For example, it is well within the rights
of the Department of Justice to require its attorneys to take
positions with which they disagree, and to fire those lawyers who
refuse to do so. Such control is necessary to ensure the proper
functioning of government. Similarly, an incumbent candidate's
employers, his or her constituents, enjoy some measure of control
over the content of his governmental "speech." This control helps
explain Justice Brennan's dissent in Spallone, 493 U.S. 265 at
302-03 n.12 (1990) (Brennan, I., dissenting). He recognized that
though "the act of publicly voting on legislation arguably
contain[ed] a communicative element, the act is quintessentially
one of governance" and thus not protected by the First

On the other side of the balance, the people have a strong
interest in preserving Article VIII. By passing Article VIII, the
people of Missouri announced to the world that they wanted the
Constitution amended. This voice of the people must be heard to
ensure the integrity of our government because "[c]itizenship of
the United States would be little better than a name if it did not
carry with it the right to discuss national legislation and the
benefits, advantages, and opportunities to accrue to citizens
therefrom." US. Term Limits, Inc. v. Thornton, 514 U.S.
779, 843 (1995) (Kennedy, J., concurring) (internal quotation
marks omitted) (quoting Hague v. Committee for
Indus. Org., 307 U.S. 496, 513 (1939) (opinion of Roberts,
J., joined by Black, J., and joined in relevant part by Hughes,
C.J.)). For a government is only valid if it responds to the will of
the people. The Federalist No. 22, at 152 (Alexander
Hamilton). By passing Article VIII, the people simply voiced
their will. And preserving the people's voice in government is not
only an important interest; it is a paramount interest.
Beyond the people's right to provide information, they also
possess a right to receive information vital to their electoral
choices. There "can be no question about the legitimacy of the
State's interest in fostering informed and educated expressions of
the popular will in a general election." Tashjian, 479 U.S. at
220 (internal quotation marks omitted). This assertion is true
because, "[i]n a republic where the people are sovereign, the
ability of the citizenry to make informed choices among
candidates for office is essential, for the identities of those who
are elected will inevitably shape the course that we follow as a
nation." Buckley v. Valeo, 424 U.S. 1, 14-15 (1976) (per

The right to provide and receive information are critically
related to the people's involvement in government. They provide
the people with a real opportunity to engage in the "[d]iscussion
of public issues and debate on the qualifications of candidates
[that is] integral to the operation of the system of government
established by our Constitution." Buckley, 424 U.S. at 14. No
interest could be more compelling. Therefore, the people's interest
in passing Article VIII outweighs the minimal effect Article VIII
may have on the free speech rights of candidates for Congress.

In the final analysis, all of the Respondents' and the United
States' objections boil down to one concept: the people cannot be
trusted to govern themselves. In fact, an informed electorate
"undermines the 'public good' by interfering with the rights of the
people to representation in the democratic process." Resp. Br. 46.
The people are simply too ill-tempered, uneducated and volatile to
be entrusted with facts that allow them to make informed choices.
Fortunately, our Framers did not adhere to this pseudo-monarchist
principle. Instead, they recognized that it was self-evident "[tjhat
whenever any Form of Government becomes destructive of these
ends [life, liberty and the pursuit of happinessi it is the Right of
the People to alter or to abolish it." The Declaration


of lndependence para. 2 (1776) (emphasis added). In fact,
Thomas Jefferson knew of

no safe depository of the ultimate powers of society but the
people themselves; and if we think them not enlightened
enough to exercise their control with a wholesome
discretion, the remedy is not to take it from them, but to
inform their discretion by education.

American Quotations, 179 (Gorton Carruth & Eugene Ehrlich
eds., 1992). It is on the people's "good sense we may rely with
the most security for the preservation of a due degree of liberty." 1
Republic of Letters: The Correspondence Between
Thomas Jefferson and James Madison 1776-1826, at 514
(James Morton Smith ed., 1995).

That is what the people of Missouri sought by passing Article
VIII: education and information. And by its opinion, the Eighth
Circuit denied the people the information they took extraordinary
electoral steps to secure and deserve to receive. It is now up to
this Court to return to the people their voice in government, and
grant them the information they regard as vital in attempting to
secure a more representative democracy for all people.
The judgment of the court of appeals should be reversed.
Respectfully submitted,
1722 Eye Street, N.W.
Washington, D.C. 20006
Attorney General of Missouri
State Solicitor

Chief Counsel for Litigation
Assistant Attorneys General
P.O. Box 899
Jefferson City, MO 65102
(573) 751-3321
Counsel for Petitioner
September 13, 2000
* Counsel of Record

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