Transcript

IN THE SUPREME COURT OF THE UNITED STATES

REBECCA McDOWELL COOK, Petitioner, v. DON GRALIKE, Respondent.

No. 99-929

November 6, 2000

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:59 a.m.

APPEARANCES: MR. JAMES R. McADAMS, ESQ., Chief Counsel for Litigation, Office of the Attorney General, Jefferson City, MO; on behalf of the Petitioner.

MR. JONATHAN S. FRANKLIN, Washington, D.C.; on behalf of the Respondent.

MS. BARBARA D. UNDERWOOD, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C. for United States, as amicus curiae, supporting Respondent.

PROCEEDINGS

CHIEF JUSTICE REHNQUIST: Mr. McAdams.

ORAL ARGUMENT OF JAMES R. McADAMS ON BEHALF OF PETITIONER

MR. McADAMS: Mr. Chief Justice, and may it please the Court: There are three Democratic principles at stake in this case. First, the people may instruct their legislators. Second, the people may request information and receive information on the ballot about candidate behavior. And third, the people may put the information called for by Article 8 on the ballot. None of these activities violate any provision of the United States Constitution.

With regard to the instruct provision first, this is the issue that divided the panel opinion from the dissent. The instructional provisions are contained in Sections 15, 16, and 17, paragraph one, of Missouri's Article 8. The Eighth Circuit said these instructions violated Article 5 because the voters were third parties to the amendment process. Article 5 doesn't say that.

Article 5 provides a specific mechanism by which the Constitution can be amended, and it allocates functions in Article 5 for certain branches of the government to perform. The exclusion of the people from any specific one of those functions does not exclude the people from the right to communicate to their representatives that they want the Constitution amended.

QUESTION: Mr. McAdams, precisely what is the instruction provision? You say this is the first of the three you are talking about?

MR. McADAMS: Yes. This is the first of the three principles that I'm talking about, Your Honor.

QUESTION: Okay.

MR. McADAMS: And the instruction is physically contained in Section 17, paragraph one of the proposed amendment, and it relates to Sections 15 and 16 of the amendment, Your Honor, Section 15 stating the intention of the Missouri voters, and Section 16 specifically stating the proposed constitutional amendment that the voters support.

QUESTION: Well, are you arguing to us now on the assumption that the instruction standing alone has no teeth, no enforcement part, and you are going to get to the enforcement part, the teeth part later?

MR. McADAMS: That is correct, Your Honor. Standing alone, the instructions provisions, these three sections, have no teeth. They are a nonbinding instruction. And as we were instructed by then-Justice Rehnquist's opinion in Kimble, the nonbinding instructions and advice by the voters to a legislature does not violate Article 5.

QUESTION: And this is the provision that Judge Hansen voted to uphold?

MR. McADAMS: That is correct.

QUESTION: In doing his dissent?

MR. McADAMS: That is correct, Your Honor. Although I should say, he did not specifically mention Section 17.1. He only specifically mentioned 15 and 16. The instruction provision of 17.1 would be included in his logic.

QUESTION: But part 2 of the Missouri constitutional Article 8, Section 17, is severable, is it?

MR. McADAMS: Yes, Your Honor.

QUESTION: The ballot proposition?

MR. McADAMS: Yes, Your Honor. Pursuant to Section 22 of Article 8, any provision the Court would find unconstitutional in Article 8 is severable from the remainder.

QUESTION: And your point is just that disregarding for the moment the provision that has to appear on the ballot by a candidate's name, that the rest of it doesn't violate Article 5?

MR. McADAMS: That would be correct, Your Honor.

Moving on to the second principle, Missourians may request information and may receive information on the ballot about congressional candidate behavior. This Court has indicated and respondents do not contest that states may provide information on the ballot.

QUESTION: I think their argument is that it goes beyond information to the point of putting the thumb on the scale, because essentially it uses pejorative language. It's doing more than informing. It's saying, you know, these people have, or this person has violated a trust. And that's more than information. That's a kind of conclusion of fault. That seems to be one of the points of their objection. How do you respond to that?

MR. McADAMS: Well, Your Honor, there is nothing that really goes to point three that I made in my opening, that it goes to the specific ballot information and I respond to that by saying, there is nothing that provides voters valuable information that couldn't be used by those voters as the basis for a decision to vote against a candidate. There is no indication in this case, no evidence in this case, that voters will be so overwhelmed by the information contained in the ballot information that they will have the will --

QUESTION: Well, it's not -- I don't know that they have to make the case that the voters are going to be overwhelmed. The case that they are making is simply that the voters are being given something more than information. The voters are being given in effect a judgment by the state that the particular candidates have referred to, have done something wrong, and that is more than information.

MR. McADAMS: I simply disagree with that, Your Honor. The voters are not being given any more than information. The State of Missouri --

QUESTION: Mr. McAdams, can you point to any other example? There have been examples in briefs certainly of instructions that were given at the time of the constitutional convention, but this has been labelled a Scarlet Letter label. It's not the same as Democrat and Republican. It says, disregarded voters' instruction. It says, declined to pledge to support. Are there any other such labels that go on a ballot at a time when the candidate has no opportunity to answer back?

MR. McADAMS: Well, I would say that party labels go on the ballot at a time when voters have, I mean candidates have no opportunity to respond back. The history of the country is such that party labels were outcome determinative in numerous congressional districts, Your Honor.

QUESTION: Well, I asked you, you gave the party labels example. Is there anything comparable to disregarded voters' instruction on issue X, declined to pledge?

MR. McADAMS: Yes, Your Honor.

QUESTION: I don't know of anything comparable to that.

MR. McADAMS: There is something comparable, Your Honor. In the State of Nebraska, in the early 1900s as the people became disaffected with Congress' unwillingness to amend the Constitution to provide for the direct election of senators, they placed labels on the ballot about whether state legislative candidates --

QUESTION: Oh, but that's state legislative candidates, and that's different. There is no federal Constitutional control, except perhaps there might be a First Amendment argument, but we are talking about here -- whatever the state wants to do vis-a-vis state legislatures is different from what they can do, vis-a-vis people who are in a national body and when they are there, they are representing all the people.

MR. McADAMS: Well, First Amendment is one of the claims that they make, Your Honor, and the First Amendment claim would equally be evadable to a situation like the State of Nebraska did. We would not have, for example, a qualifications clause analysis that would apply to the state.

QUESTION: Well, do you have any other example of someone running for federal office, the House or the Senate, where there is such a label?

MR. McADAMS: I believe there -- not exactly like this label, Your Honor. There are situations where federal candidates have, for example, their address disclosed.

QUESTION: I think in Arizona, at least at one time, candidates for the Senate and the House of Representatives had to say they were pledged to recall, which meant that if the state legislature recalled them, they would have to resign. Because they all pledged, and of course, it never happened, so --

MR. McADAMS: I was not aware of that example, Your Honor.

QUESTION: Excuse me. And that was shown on the ballot in Arizona as well?

MR. McADAMS: I'm not aware of that, Your Honor.

The rules would seem to provide states, the election clause would seem to provide states an opportunity to place information on the ballot.

QUESTION: Well, doesn't the information, given the courts' cases here anyway, have to be generally applicable and evenhanded, like all the regulation because if it's not, that's -- I mean, that phrase comes from a case called Anderson, but there are many of like tenor, it seems to me, that if it's not generally applicable and evenhanded, the state, for no legitimate regulatory interest, is biasing the election, which, which hurts the First Amendment rights of all those who happen to think that term limits is not the most important issue in the election, that would prefer the election were decided on the basis of other issues.

MR. McADAMS: Well --

QUESTION: Whatever. The economy. The environment. Whatever.

MR. McADAMS: There is nothing about providing information that dictates that it is the basis upon which voters will choose.

QUESTION: Well, of course, that's generally true, and it's for that reason that when we get down to the ballot itself, which normally, regulation of the ballot is not for information providing purposes. It is for fair vote purposes. And that's why it seems to me that these cases have held when we come down to ballot regulation, what we are interested in is whether the state's regulation is generally applicable and evenhanded.

MR. McADAMS: Well, I think Timmons used the phrase reasonable. The state could enact reasonable regulations.

QUESTION: Yes. Reasonable in terms of such purposes as the integrity of the electoral process, preventing voter confusion, ensuring orderliness, and ensuring fairness. Now, not, I haven't seen anything that says reasonable in terms of providing information about one issue but not other issues.

MR. McADAMS: Well, Your Honor, right now, we have a situation where the state only provides information about party affiliation.

QUESTION: Party affiliation is not -- the candidate, I take it, voluntarily associates himself with that and wants that on the ballot.

MR. McADAMS: Some do and some don't. In the history --

QUESTION: Well, are there instances where the affiliation was put on the ballot over the objection of the candidate?

MR. McADAMS: There are no cases in that regard, Your Honor.

QUESTION: I suppose in most of the south, until maybe 25 years ago, I'm sure the Republican would not have wanted his name on the ballot.

MR. McADAMS: I'm quite certain in the south.

QUESTION: For his party affiliation on it.

MR. McADAMS: I'm quite certain that is true, Your Honor, and I think that's true for third party candidates today as well. In the example that the respondents give about the one time this was done in California, they give an example where a state legislative candidate who had won a plurality in the party primary came back in the run-off election and lost to someone who did not have a label. It seems that what respondents are offended by there is that the party label designation was not the piece of information that controlled the electoral result.

QUESTION: You can argue about whether a party label is generally applicable and evenhanded. So my question is, are you accepting the principle, but saying that this label is just as evenhanded as a party label, or are you denying the principle?

MR. McADAMS: I'm not denying the principle that the state cannot mislead voters.

QUESTION: That wasn't the principle. The principle I'm reading from the cases, which I have said a lot of times, I just want to see if you accept it, generally applicable and evenhanded.

MR. McADAMS: And I believe this is generally applicable.

QUESTION: You accept the principle and the issue of whether this is evenhanded?

MR. McADAMS: I am not aware of any basis for disputing that principle, Your Honor.

QUESTION: Do you say that it's evenhanded?

MR. McADAMS: I do, Your Honor.

QUESTION: Could you call it the Scarlet Letter?

MR. McADAMS: I don't call it the Scarlet Letter, Your Honor. People who apply a pejorative label to this enactment call it a Scarlet Letter.

QUESTION: Could a Republican state label a Democrat dirty Democrats?

MR. McADAMS: No, Your Honor.

QUESTION: No? Well, isn't that about what they are doing here. Disregarded. Refused to pledge or declined to pledge. That's why we get into the Scarlet Letter analysis. We would be in a Scarlet Letter analysis if the Republicans said dirty Democrats. I don't see where you are going to draw the line.

MR. McADAMS: Well, in that situation the state is expressing a judgment on the candidate that actually invades the province of the voter. Here we are not doing that. There are eight specific behaviors that are being evaluated.

QUESTION: How does that invade the province of the voter in a way that is not true here? I mean, what's the distinction?

MR. McADAMS: Well, the distinction is that that amounts to, in my mind, a recommendation to vote against the candidate. It would be as if in this case we instead of using the label disregarded voters' instructions concerning term limits for this same behavior, we use the phrase traitor. That is misleading. It would essentially take away, I believe, and overbear the will of the voter if they believe they were voting for a candidate who was a traitor.

QUESTION: Well, if you are trying to tell us that this does not disadvantage the candidate in any way, I just find that very difficult to accept.

MR. McADAMS: And that is not what I'm saying, Your Honor. This may disadvantage some candidates with some voters.

QUESTION: But on your theory, I suppose --

QUESTION: But then it's not neutral.

MR. McADAMS: Well, it's just as neutral as party labels, because party labels disadvantage candidates. It is the equivalent --

QUESTION: Do you know any state that requires you to put your party affiliation on the ballot when your party affiliation is not the reason you are on the ballot?

MR. McADAMS: I do not know of any state that does that, Your Honor.

QUESTION: In other words, you can get on the ballot without a party affiliation, if you acquire enough signatures, right?

MR. McADAMS: Yes. That's correct, Your Honor.

QUESTION: But the state ballots have lines for the major parties that in the last election got enough votes, so the reason they show that is they are showing you why you are on the ballot, and if you are on the ballot for some other reason, you think they could make somebody who got on the ballot by popular referendum or signatures, you think they could make him declare a party affiliation shown next to his name?

MR. McADAMS: No, Your Honor. I don't believe I could.

QUESTION: That's right.

QUESTION: I'd like to ask you whether if we were to uphold this kind of a provision, whether it wouldn't then be possible for a state to have by initiative or referendum a similar provision saying that we instruct our members of Congress that they are to support a constitutional amendment allowing prayer in schools, or a constitutional amendment reversing an abortion decision, or any other hot button issue where the voters of the state decide they are going to instruct members of Congress, and then under your theory, I suppose, a provision could be inserted on the ballot opposite the name of any candidate who refuses to express a position or disavow that position that --

MR. McADAMS: That is --

QUESTION: -- informs the voters; is that right?

MR. McADAMS: I'm sorry, Your Honor. Yes. That is correct, if they did it through this mechanism, they set forth the specific Constitutional provision that they wanted enacted and the behaviors that they wanted to be evaluated, so that there was no --

QUESTION: It certainly would change the election process as we have known it, wouldn't it?

MR. McADAMS: Well, in footnote four of Foster versus Love, this Court left open the question of whether or not states must use conventional means to hold elections. But I submit to you that we already know the answer to that question. And we know it because the way in which ballots have been distributed has changed throughout history. Initially, we started out with nothing but write-in ballots. Then parties were actually around printing up ballots for people to cast and using that mechanism to control and buy elections, and the states came up with a mechanism which allowed the states to prepare the ballot. So there is nothing that requires us to use the conventional method.

QUESTION: But Mr. McAdams, the point has been made very forcefully that this is a national legislature. And you are saying you could freight down someone from a state with all kinds of policies that may be preferred by that state and that person would be laden with those obligations, even though he or she is now a member of a national, as opposed to a state body.

MR. McADAMS: Well, Your Honor, first of all, I don't think they are obligations. I think they are instructions, and they are nonbinding instructions.

QUESTION: But the list of things that the person is supposed to do if you are going to be faithful to that pledge, you have to do all those things. You have to sponsor these measures, and you have to urge other people to join you, and you have to take a very active role.

MR. McADAMS: Your Honor, you only have to propose if it's not otherwise been proposed. You only have to sponsor if it's not otherwise been sponsored. And there is nothing in the instructions that require you to speak in favor of this proposed amendment.

QUESTION: But that interferes with the basic point, that the relation between the congressmen and the people is one that's direct and does not involve intervention by the state. We have two sets of relations in the federal system, each with its own duties and responsibilities. One is between the Federal Government and the citizen without the intervention of the state. The other is between the state and the citizen without the intervention of the Federal Government, except in certain instances where an accommodation has to be made like regulation of time, place and manner of elections, but those are neutral.

MR. McADAMS: But this doesn't interfere with that relationship, Your Honor. The only thing this does is allows voters --

QUESTION: But it seeks to alter and to regulate it.

MR. McADAMS: I disagree, Your Honor. This only allows the people to evaluate candidate behavior. We have in our country a tradition now where legislative candidates obfuscate their record to the point where it is difficult for the electorate to determine what they have done.

QUESTION: But the purpose of doing this is to control the conduct of the Congressman in office, and I submit to you, there is simply no authority for the state to do that. The voters can certainly do that.

MR. McADAMS: The last sentence of Section 16, we, the people of the State of Missouri, have chosen to amend the state Constitution to inform the voters regarding incumbent and nonincumbent federal candidate support for the proposed amendment. This is an informational provision to the voters, so that they can evaluate candidate behavior, and this is information they have asked for. This is the kind of information that could seriously improve the ability of the citizens to engage in an educated electoral decision, and could combat, I think rather effectively, voter disillusionment with the system.

QUESTION: What about, there are a number of districts within Missouri where the people were not in favor of this proposition. And if the person is supposed to represent, disregard voters' instruction, he might not have disregarded the voters' instructions from his district. His district may have been overwhelmingly against this proposal.

MR. McADAMS: This proposal passed in every congressional district in the State of Missouri. Now there are 28 counties that it did not pass in.

QUESTION: All right. Someone is from one of those counties.

MR. McADAMS: Well, the Federal Government through the elections clause tells the states that the state regulates the ballot. It is not inappropriate, then, for the state to have consistent regulations across the state regarding that proposal, Your Honor.

QUESTION: But I -- Justice Ginsburg posed a hypothetical that I'm interested in. Suppose that, hypothetical case, in a congressional district, the voters are overwhelmingly against a certain proposition and a state Constitution has this label providing they be notified that they have voted to the contrary. What result?

MR. McADAMS: The same result would apply because the elections --

QUESTION: So you are, you are allowing the state as an entity to interfere with the relations between the Congressman, the Congresswoman, and those people in the district.

MR. McADAMS: That's not true, Your Honor. Because if the people in that district voted against term limits, they will take a look at this ballot information and they will not use it as a rational basis to vote against a candidate unless their opinion has changed. If their opinion has changed, then they will use this information. But it does not interfere with the relationship.

QUESTION: Certainly state legislatures before the 17th amendment, if that was the one that provided for direct election of senators, communicated a great deal with their senators.

MR. McADAMS: Absolutely, Your Honor. There is a lot of historical evidence that state legislators instructed the state senators. In fact, the first --

QUESTION: You mean federal senators, well, senators from the state.

MR. McADAMS: Yes. Senators from the state impacted federal senators, and in fact, that is the mechanism in large part which propelled the first 10 amendments and the 11th amendment to passage. After the enactment of Article 5, the states directed that those be passed. Eight of the original 13 colonies issued such instructions for one of those 11 amendments.

QUESTION: This just applies to Congress persons, though, doesn't it? It doesn't apply to senators.

MR. McADAMS: No. It applies to both, Your Honor.

QUESTION: Oh, it does.

QUESTION: There is something about this, the perception, say, of a voter. We very carefully limit the speech that's possible as you are approaching the poll. No electioneering by the polls. And this Court has upheld that against First Amendment challenge, and yet when they get into the voting booth, this thing juts out at them in capital letters, and that somehow seems inconsistent with our notion that the voters should not be bombarded with slogans for or against whatever issue when they go into that ballot.

MR. McADAMS: Well, we have -- we have -- the Court has held that elections -- pardon me -- people cannot politic within so many feet of the polling place, Your Honor. That is true. But the Court has never held that the people cannot have the information in the voting booth with them that they want.

QUESTION: We haven't held that people can't politic. We have held that if a state doesn't want people to politic, it's okay.

MR. McADAMS: That is true, Your Honor.

QUESTION: In your view, could they, in addition to what's in the capital letters, could they add in the following respects, and then quote the paragraphs that were the failures, the basis for it?

MR. McADAMS: Yes. I believe they could, Your Honor.

QUESTION: Does, in Missouri, do congressmen take an oath to uphold the state Constitution?

MR. McADAMS: Do federal congressmen take such an oath?

QUESTION: No. Do congressmen and senators in Missouri take an oath to uphold the state Constitution?

MR. McADAMS: I'm not aware that federal representatives and senators do that, Your Honor.

QUESTION: I would be very surprised if the state could impose that requirement.

MR. McADAMS: I think that is true.

QUESTION: Well, doesn't that prove the point here? That the state simply cannot interfere with the relation between the congressmen and the voters directly?

MR. McADAMS: Absolutely not, Your Honor. There is nothing that would suggest that the state couldn't ask federal congressmen to take such a pledge, and if they failed to do so, report that they declined to take such a pledge. The federal candidates --

QUESTION: You think that the, that the state can require congressmen and senators to support the state Constitution by an oath?

MR. McADAMS: I think they can ask them if they will. If I could reserve the remainder of my time.

QUESTION: Very well, Mr. McAdams. Mr. Franklin, we will hear from you.

ORAL ARGUMENT OF JONATHAN S. FRANKLIN ON BEHALF OF RESPONDENT

MR. FRANKLIN: Mr. Chief Justice, and may it please the Court. The State of Missouri has attempted to use its control over the ballot to determine the issues upon which federal elections will be decided and to influence voters to vote against candidates who do not support a state preferred political viewpoint.

QUESTION: I don't know that that's true about simply the 17-1 provision that Judge Hansen thought was permissible, where it's simply the legislature instructs members of Congress to try to push for a term limits amendment. Nothing appears on the ballot at all.

MR. FRANKLIN: Two points, Your Honor. First, clarification. Judge Hansen did not find that to be constitutional.

QUESTION: Oh, I thought he did.

MR. FRANKLIN: No. On page A-23 of the appendix to the petition, Judge Hansen clearly stated that he agreed with the majority that Sections 17, 18, and 19 were unconstitutional. He differed as to whether 15 and 16, which is essentially the preamble, could be severed. The severance question, Your Honor, is not before the Court. It was addressed by the Court of Appeals. It has been waived. The petitioner could have chosen if it had wanted to present that issue in its petition or its brief. It did not, and perhaps the reason it did not is the question of severability is predominantly one of state law as to whether under Missouri state law various provisions would be severable from one another, whether the voters would have voted for a preamble that didn't do anything. That is a question of state law.

It was not presented in the petition. It was not presented in the brief. If the Court had been presented with it, it's likely the Court would decline to consider a question of state law such as that one.

QUESTION: Well let me ask you this, then. Do you think that the provision that instructs members of Missouri's congressional delegation to use their powers to pass an amendment is, stands on the same footing as the ones that are, that are printed on the ballot?

MR. FRANKLIN: We believe first that it stands together with this law. If, in a hypothetical --

QUESTION: I mean constitutionally.

MR. FRANKLIN: The answer is if there were a, just instruction, nothing else, which is not what this case is about, if there were, we would argue in such a case that it would be in that case an impermissible chilling effect on speech.

QUESTION: Well, but why can't that provision be severed from the other two?

MR. FRANKLIN: The principal reason is because the severance question is not before the Court. If --

QUESTION: Well, but the Petitioner argues here that the Court of Appeals was wrong right across the board in throwing these out. Now, if we were to conclude that the Court of Appeals was wrong on one, but right on the other two, that certainly is fairly raised by the petition.

MR. FRANKLIN: I would say not, Your Honor, and for the reason that the severability issue is one of state law. However, if --

QUESTION: Well, why couldn't we say the dissenter was right on that point. He said Article 15 and 16. Not 17.1, as you pointed out. But why wouldn't it be open to us to say the dissenter was right on that point?

MR. FRANKLIN: I think it would be open to the Court, had the issue been raised and briefed and we had briefed the question under Missouri state law as to what, what is or is not severable. However, one also needs to look at the remedy in this case. The remedy is not that certain provisions are excised from the Constitution. What the remedy says is the State of Missouri is enjoined from implementing or enforcing the provisions of the Constitution, including Section 17, which contains both the instructions and the labels through which they are enforced. This Court need only affirm that judgment.

QUESTION: But if we agree with some of the reasons they gave, that is, that some of the provisions are bad, but we think that some of the other ones are good, why -- we don't necessarily have to reach the severability point ourselves. Why couldn't we remand and leave it to the lower court to decide the severability question in light of our disagreement with them that all the provisions they said were unconstitutional were?

MR. FRANKLIN: Because the Court would be reaching the severability issue in that case and remanding it to --

QUESTION: No, we wouldn't. We would be saying that we find that this is a difficult case. Some of these provisions withstand constitutional attack. Others don't. Let me remand it for you and then can you figure out the state law.

MR. FRANKLIN: But the Court of Appeals did address the severability question. In the last footnote of its appeal, it held --

QUESTION: But I think several of us feel that it isn't really an issue of severability that we would decide here. We would simply say we disagree with one phase of the Court of Appeals opinion on the constitutional issue, we agree on two others or three others, and send it back to the Court of Appeals. You affirm in part and reverse in part without necessarily getting to severability here.

MR. FRANKLIN: Well, let me then get into why the Court, if the Court were just to consider the instruction provision standing alone, which I understand is the issue that was raised, we would argue, for the first time today, if the Court were to, just to consider that, it would have to hold that contrary to Judge Bartlett's decision in this case, the instructions provisions can be implemented or enforced, which is the injunction that this Court, we are asking the Court to affirm.

QUESTION: No. Would you tell us whether in your view --

MR. FRANKLIN: Yes.

QUESTION: In a hypothetical case.

MR. FRANKLIN: Yes.

QUESTION: A state can simply instruct its federal representatives, congressmen and senators, that it wants them to work for a particular objective. That's all it says. It seems to me that's a classic right of petition on the part of the people.

MR. FRANKLIN: No, it is not. And it would be in our view a violation of the Constitution. It would be unprecedented and we have uncovered no historical evidence to show that any, it has ever been tried before that an instruction to a representative to vote and take other legislative activities in a particular manner --

QUESTION: But certainly there was much instruction to the senators at one time.

MR. FRANKLIN: The difference here, and it's an important difference, is this instruction is codified as law, is given the force of legal command, it is in the Missouri Constitution. Every person in this --

QUESTION: Let's say they use the word advice. We wish, we, the legislature of the State of Missouri, wish our representatives to know that we think they should work for the following objectives, term limits, whatever.

MR. FRANKLIN: It would be different, Your Honor. And we have a quote from George Washington in our brief in which --

QUESTION: So the difference is between instruction and advice?

MR. FRANKLIN: Yes, Your Honor. And George Washington said, and it's quoted at page 29 of our brief, he said the sense -- with regard to instructions specifically, he said the sense, but not the law of the district may be given. It is different to say we advise that you do this.

QUESTION: In what capacity was George Washington speaking?

MR. FRANKLIN: He was in that case writing a letter to his nephew who was a future justice of this Supreme Court, Bushrod Washington. But he said that, and we are not saying that that is a principle of law, but the reasoning applies here and it applies for the following reason. People take seriously their obligations to follow the law. And I think that applies perhaps even more strongly to members of Congress. A member of Congress who is faced with a law that says we hereby instruct you as a matter of Missouri constitutional law, codified as a provision of law, given the force of legal command to do this act in Congress.

QUESTION: But it's not a legal command. I mean, if you are -- you don't have to say it's binding. If it's a nonbinding instruction, it's not an instruction. I mean, you can call it an instruction. Is that the vice of this thing, misusing the word instruct, as opposed to advise, even though everybody knows and they acknowledge here that there is no enforceable mechanism on the instruct?

MR. FRANKLIN: And all we are asking this Court to do is to, as Judge Bartlett did, say that the state may not implement or enforce the provision.

QUESTION: May I get -- the only implementation or enforcement that I'm aware of is the implementation or enforcement in the form of the ballot statements; is that correct?

MR. FRANKLIN: That is correct. And they are --

QUESTION: So that our case boils down to whether in the whole context, all the provisions in the Constitution, may the state include these, as you put it, ballot disparagements. That's the only issue before us?

MR. FRANKLIN: Yes. No. The issue, the issue before the Court is whether as the Court of Appeals held, Article 8 of the Constitution may not be implemented or enforced. Again, the Court held that.

QUESTION: Right. The only implementation or enforcement that we are dealing with, and that the court below dealt with, was the ballot statements?

MR. FRANKLIN: That is correct. And Judge Bartlett was correct when he said that the remedy is, we hereby enjoin the state from implementing or enforcing Article 7, Section 17, which contains both the instructions and the enforcement. To take a hypothetical, if a law came before this Court where at Section whatever of the statute and Section -- subsection A said no person may criticize the president, subsection B said anyone who violates subsection A will be given a $1,000 fine. The remedy of such a case would be, as the remedy was here, to enjoin or enforce, to enjoin the enforcement or implementation of such a statute. That is all we are asking the Court to affirm in this case.

QUESTION: Let me get this straight because apparently, something may turn up that I don't fully understand. Was there an injunction against -- was the part that simply we have been talking about, instructs or advise, was that declared invalid?

MR. FRANKLIN: There was no declaratory judgment in this case. There was simply an injunction.

QUESTION: Well then, does the injunction have any consequence with respect to that provision of the Missouri Constitution?

MR. FRANKLIN: Which provision, Your Honor? I'm sorry.

QUESTION: The provision that simply says the legislature instructs.

MR. FRANKLIN: Yes. It is a consequence that they may not implement or enforce that provision. The way they do it, as Justice Souter mentioned, was -- is through the instructions, through the labels. And the labels we believe are unconstitutional for the principal reason that they exceed the state's limited delegated authority under the elections clause to regulate only the times, places and manners of holding federal elections.

QUESTION: And I suppose you would say that the injunction has importance and continuing significance in the event the legislature attempts some other means of enforcement?

MR. FRANKLIN: Certainly, Your Honor. A decision by this Court that an instruction to a sitting member of Congress to vote in a certain way may be implemented or enforced, we believe would be contrary to the Constitution. It would violate the First Amendment. It would be a chilling effect on speech.

QUESTION: But what if Missouri had done nothing but pass that part which said we instruct senators and -- there is no known prospect of enforcement at all.

MR. FRANKLIN: We would argue in such a case that it would contravene the First Amendment because it would be a chilling effect on speech for the reasons essentially that George Washington stated, which is that the sense, but not the law of the district, may be given. This is unprecedented. We are not aware of any --

QUESTION: But it wouldn't be the law. There is no enforcement mechanism.

MR. FRANKLIN: It would still be the law, Your Honor.

QUESTION: It seems to me, though, we get a lot, we used to get a lot of things that we call upon our delegation in Congress to declare this National Pork Week. I mean, there are a lot of those. They are always passing things like that in state legislatures. Are all those unconstitutional?

MR. FRANKLIN: No. But they do not as --

QUESTION: But if they said we insist that you call this National Pork Week, I don't know if it's National Pork Week or National Port Week, but regardless, a lot of them come in. Now you're saying if they use the word insist, that it's unconstitutional?

MR. FRANKLIN: We are saying if they use the word instruct. But the word, the instructions are just, are not --

QUESTION: You don't have to reach that in this case?

MR. FRANKLIN: No. No. We do not. And the reason is because the instructions are part and parcel of the law which the Court of Appeals has said stand or falls on its own, and the principal reason that the law as a whole falls is because it does exceed the state's neutral power to serve as a, an administrator of federal elections and instead has the state putting its thumb on the electoral scale.

QUESTION: Tell us about party labels, Democrat and Republican?

MR. FRANKLIN: Yes. The reason that party labels would be permissible generally speaking is because they are integrally related to the conduct, the orderly conduct of an election which itself is organized around party lines. In Missouri, as in elsewhere, one does not come to be on the ballot strictly as an individual, but rather as the nominee in most instances of a party. It would be a different case if the state, and I understand it to be conceded here, if the state said to an individual who had achieved a ballot spot as an independent, that nevertheless, that person must disclose that they are, for example, a member of the communist party or the socialist party. That would not be related to the orderly conduct of an election organized around party lines because that would not have anything to do with how the person got on the ballot.

Second, a party label unlike the labels in this case, a neutral requirement that all party labels be listed is not related to the content of any individual's views on an issue. Any connotation that the voters draw between parties and viewpoints is imperfect at best, but more important, it's a connotation that the party and the candidate voluntarily associate themselves with in the process of running in an election which itself is organized around party lines.

Here, by contrast, the labels are both content and viewpoint based. They are content based because they single out only one issue, term limits, and say to the voters, that is the issue that we deem to be most important of your consideration, most worthy of your consideration. And second, even worse, they are viewpoint discriminatory. They are viewpoint discriminatory because the state is singling out one side of the issue and is labeling only one side and it is doing it in such a way that it is telling the voters that this person has disregarded or failed, pledged to follow a policy which the state deems to be the correct one. And --

QUESTION: I take it your First Amendment argument is an alternative argument to the first argument that the state simply lacks the power to do this?

MR. FRANKLIN: Yes. The first argument is the state lacks the power. It is an alternative argument under the First Amendment. It relies on many of the same principles, however. The elections clause is a limited delegation of authority to regulate only the times, the places, the manners of holding federal elections.

QUESTION: That particular argument wasn't put before Judge Bartlett. It was before the Eighth Circuit. Am I right about that?

MR. FRANKLIN: No, Your Honor. It was put before Judge --

QUESTION: The election clause was put before --

MR. FRANKLIN: Yes. Yes.

QUESTION: He didn't rule -- Bartlett didn't rule on that?

MR. FRANKLIN: Yes, he did, Your Honor. One can find the ruling at pages A-42 and 43 of the appendix of the petition, and A-45 and 46.

QUESTION: Was an issue ever -- just a technical point. Was an issue ever made of the fact that the, what was objected to here was done by a constitutional amendment rather than by the legislature which the clause itself refers to?

MR. FRANKLIN: No, Your Honor. That was not raised below, but it has been raised by all parties in this Court and has been briefed by all parties in this Court, but it was not raised below.

QUESTION: May I ask before you are finished, is a threshold standing question with respect to the initial Plaintiff here. In short, he said in the end, I'm getting out because of Gephardt, I don't want to be a competitor of Gephardt, so this is beside the point as to Gralike?

MR. FRANKLIN: Gralike. Yes. The Court, we believe that that case would still be capable of repetition, yet evading review under this Court's precedents. However, Mr. Harman did intervene as a respondent on appeal. Mr. Harman has the same interests as Mr. Gralike.

QUESTION: I noticed in his affidavit that he is running for the election in 2000. I assume that's tomorrow. He doesn't -- or am I wrong? But he doesn't say that he, as in Golden versus Wickler, that he intends to run again and it's likely that he will run again.

MR. FRANKLIN: Two points. First, Your Honor, he did run. He was not successful in the primary. He does intend to run again. He has run in the past. He intends to run again. But the Court's --

QUESTION: But is that in the affidavit before the Court? That's your representation to us now?

MR. FRANKLIN: It's my representation, but the Court's elections cases make clear that that is not a requirement in the Court's elections cases, and those are the cases that we have cited in our brief at footnote one, I believe in this context. But in any event, I will represent to you that he does intend to run again.

The state, as this Court has held, has the authority under the elections clause to enact procedural or mechanical regulations that are nondiscriminatory, evenhanded and politically neutral. It does not have the delegated power to single out one issue which it deems more worthy of voter consideration than others or to disadvantage candidates who hold disfavored views on that issue.

The State of Missouri, purportedly to maintain the integrity and the neutrality and the sanctity of the electoral process, prohibits candidates and their supporters from expressing any views to the voters within 25 feet of the polling place. Yet the state itself now seeks to be inside the voting booth to inject its own preferred views and viewpoints on the ballot. Such a manipulation of the ballot would in our view, if upheld, seriously undermine the system of free and fair Democratic elections that sets this nation apart from so many others in the world. Thank you.

QUESTION: Thank you, Mr. Franklin. Ms. Underwood, we'll hear from you.

Ms. Underwood, Section 1 of Section 17 says we the voters of Missouri hereby instruct each member of our congressional delegation to use all of his or her delegated powers to pass the congressional term limits amendment set forth above. If that stood by itself, would that have any constitutional flaw?

ORAL ARGUMENT OF BARBARA D. UNDERWOOD ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENT

MS. UNDERWOOD: Mr. Chief Justice, that would depend on the meaning of instruct. If it were binding law and unlawful for a Congressman to disobey it, then it would have many of the same flaws as this statute. If it were advisory, then it would not, but we know --

QUESTION: How do you determine whether it --

MS. UNDERWOOD: Well, one of the problems --

QUESTION: I mean, suppose there is just no sanction for it. We instruct you to do it, but there is no sanction whatever.

MS. UNDERWOOD: Well, the question would be whether it was meant to have binding effect, and whether, for instance, the legislature might, somebody might seek mandamus to enforce it, whether it was seen as enforceable or not.

QUESTION: Not enforceable. It's not enforceable.

MS. UNDERWOOD: Well, if it's completely unenforceable, I think you are saying it is advisory, in which case --

QUESTION: Well, but it says instruct.

MS. UNDERWOOD: Instruct is a word that can have many meanings and if it means advisory, then I think it would not be objectionable, but we --

QUESTION: It doesn't mean advisory. I mean, we really mean it. We instruct you, but you know, if you don't do it, there is nothing we can do about it.

MS. UNDERWOOD: Well, if you can say that the legislator was a lawbreaker, violated the law, did something unlawful, if that's the meaning of instruct --

QUESTION: Well, you can say he didn't take the instructions, if you consider that to be a violation of the law.

MS. UNDERWOOD: That's a different point. In Prince, this Court looked to instructions to sheriffs, for which there was no enforcement, and treated those as binding. I think the question would be what that hypothetical statute, which we don't have before us, means. This statute we know Missouri meant to make enforceable. We know that because it created an enforcement mechanism, and so the difficult question that you put, which would require determining what that hypothetical statute meant, isn't here.

QUESTION: Is it accurate to call it an enforcement mechanism? I mean, usually you enforce laws by punishing people who break them. You send them to jail. You do this or that. Here, the punishment is simply telling people that you ignored the instruction. Is that a punishment? I mean, leaving aside the, you know, the pejorative manner in which the announcement is made, if all you are doing is telling the people he chose not to take on instructions.

MS. UNDERWOOD: Well, it's still the case that it's, that it's an enforcement, one, because of the pejorative language, which you have asked me to set aside, but is present here. Two, because it is a decision by the state legislature to focus the attention of the voters and judge candidates on a single issue. And three, because it is done in the voting booth and not in a public forum where there is an opportunity to respond and to debate, so it is an effort, it has the intended purpose and the effect of disadvantaging a class of candidates, and that's something this court said in term limits that the state cannot use its elections clause authority to do. It interferes with, as Justice Kennedy said, the direct relationship between the national government and its citizens.

There is no other example of an effort to enforce an instruction with ballot labels in the case of a federal senator or representative, except for the -- the only one we have been able to find is the Arizona recall pledge. That went off the ballot in 1973. There is still a request to pledge, but it is no longer enforced by a ballot instruction. And of course, it doesn't involve a position on an issue. It doesn't involve a commitment to take a position on a particular issue in the legislature.

QUESTION: No. But it involves a commission to simply give up your job if the legislature recalls it.

MS. UNDERWOOD: It does. It's unique, as far as we have been able to tell, in the, in the history and the laws of this country, and it has never come before the Court.

QUESTION: Mr. McAdams' point was that the First Amendment arguments would apply equally to any state election. So then if, if that's important, the distinction you just drew, then I guess we are left with a time, place and manner clause.

MS. UNDERWOOD: Yes, I think the principal, the principal concern of the United States in this case is that the state has a limited authority under the elections clause and has improperly or either abused, misused its authority or exceeded its authority.

QUESTION: Then how would you draw the word manner? How would you explicate that? Which I take it what you would want to do is eliminate this, but then not reach the First Amendment question. You see?

MS. UNDERWOOD: It's not necessary to reach the First Amendment --

QUESTION: Yes. But how do you explicate the word manner?

MS. UNDERWOOD: The word manner, in the context of the time, place and manner clause, means the mechanics, the procedures of an election, neutral, evenhanded regulations that enable the orderly election process to occur, and what it particularly doesn't mean is putting a thumb on the scale to influence the result.

QUESTION: Of course that refers to the legislature, too, and not to this, not to this process, the state legislature?

MS. UNDERWOOD: Yes. There is a question as you have noted, about whether the time, place and manner authority that the Constitution gives to the state legislatures goes to any entity that the state gives legislative authority to, or whether it actually only goes to legislatures. We haven't -- in either case, even assuming that it isn't restricted to the legislature as such, it's our position that the power has simply been exceeded, doesn't go, doesn't authorize the making of nonneutral regulations that are designed to and have the effect of attempting to influence the outcome.

With respect to other labels that do sometimes appear on ballots, party labels and incumbency designations, those have, those are all understood as helping the voter identify the candidates. They are objective, identifying information. They don't, for one thing, involve a state official in assessing whether the label should apply or not, as this regulation does here. The secretary of state, subject to a state review process, has to determine whether the label applies, and the label is a judgmental label, not simply an identifying piece of information.

The other thing about parties, of course, is that party labels recognize the role political parties play in the electoral process, provide candidates with a reasonable level of community support, provide voters with a means of exercising their First Amendment right of political association, and the party label therefore reflects that the party is the mechanism that put the candidate on, on the ballot. It's quite different from a label that is designed to influence the election and also to constrain the behavior of the legislator having been elected as this, as this provision does.

I think, if there are no further questions --

QUESTION: May I ask, if you have a minute, the Court of Appeals gave us a whole bunch of reasons to come out the way they did. Which one do you think is the strongest?

MS. UNDERWOOD: The elections clause. The Court of Appeals actually didn't -- well, the elections clause has been in the case from the beginning because it is the provision that the state has used to defend its authority against all other attack. That is the argument, when the argument is made that this is a qualification, or this is an improper this or that, the state has said it's a proper exercise of its authority under the elections clause, and we say it is not. I think that's the simplest way to decide this case, even though there are a number of other issues that could also be reached.

QUESTION: Thank you, Ms. Underwood. Mr. McAdams, you have five minutes remaining.

REBUTTAL ARGUMENT OF JAMES R. McADAMS ON BEHALF OF PETITIONER

MR. McADAMS: Thank you, Your Honor. It Tashjian, this Court said, any claim that we enhance the ability of the citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism. This is precisely respondent's claim, and it should be viewed with considerable skepticism. As to the elections clause claim made by the respondent, the Court said in Smiley that the time, place and manner language are comprehensive words that embrace authority to provide a complete code for congressional elections. And in Tashjian they said state control over the election process for state officers is co-extensive with that grant to the states under the elections clause. It is a broad power.

The alleged damage done to congressional candidates because of the ballot label is something that needs to be analyzed under a punishment analysis. There is no evidence in the record that suggests this language is punishing, and that was respondent's burden. Under the qualifications clause, it was Respondent's burden to show that the sole basis for putting this on was to add a qualification indirectly. The language of the amendment itself indicates that it is not the sole basis to add a qualification indirectly. It is the sole purpose to one, inform the voters, and two, to amend the Constitution.

It was argued that the severance issue was waived. This is not so. This is contained in the response to the, or pardon me, to the reply to the cert. In point four, we say specifically because we use the word or in the first question, we preserve the severance question and we have already dealt with that in the reply suggestions.

If there are no further questions?

QUESTION: Thank you, Mr. McAdams. The case is submitted.

(Whereupon, at 12:00 noon, the case in the above-entitled matter was submitted.)