Text File

1 IN THE SUPREME COURT OF THE UNITED STATES

2 - - - - - - - - - - - - - - - x

3 REBECCA McDOWELL COOK, :

4 Petitioner, :

5 v. : No. 99-929

6 DON GRALIKE, :

7 Respondent. :

8 - - - - - - - - - - - - - - - x

9 Washington, D.C.

10 Monday, November 6, 2000

11 The above-entitled matter came on for oral

12 argument before the Supreme Court of the United States at

13 10:59 a.m.

14 APPEARANCES:

15 MR. JAMES R. McADAMS, ESQ., Chief Counsel for

16 Litigation, Office of the Attorney General, Jefferson

17 City, MO; on behalf of the Petitioner.

18 MR. JONATHAN S. FRANKLIN, Washington, D.C.; on behalf

19 of the Respondent.

20 MS. BARBARA D. UNDERWOOD, ESQ., Deputy Solicitor

21 General, Department of Justice, Washington, D.C. for

22 United States, as amicus curiae, supporting

23 Respondent

24

25

1

1 C O N T E N T S

2 ORAL ARGUMENT OF PAGE

3 JAMES. R. McADAMS, ESQ.

4 On behalf of the Petitioner 3

5 ORAL ARGUMENT OF

6 JONATHAN S. FRANKLIN, ESQ.

7 On behalf of the Respondent 23

8 BARBARA D. UNDERWOOD, ESQ.

9 On behalf of the Respondent 39

10 REBUTTAL ARGUMENT OF

11 JAMES R. McADAMS, ESQ.

12 On behalf of the Petitioner 46

13

14

15

16

17

18

19

20

21

22

23

24

25

2

1 P R O C E E D I N G S

2 [10:59 a.m.]

3 CHIEF JUSTICE REHNQUIST: Mr. McAdams.

4 ORAL ARGUMENT OF JAMES R. McADAMS

5 ON BEHALF OF PETITIONER

6 MR. McADAMS: Mr. Chief Justice, and may it

7 please the Court: There are three Democratic principles

8 at stake in this case. First, the people may instruct

9 their legislators. Second, the people may request

10 information and receive information on the ballot about

11 candidate behavior. And third, the people may put the

12 information called for by Article 8 on the ballot. None

13 of these activities violate any provision of the United

14 States Constitution.

15 With regard to the instruct provision first,

16 this is the issue that divided the panel opinion from the

17 dissent. The instructional provisions are contained in

18 Sections 15, 16, and 17, paragraph one, of Missouri's

19 Article 8. The Eighth Circuit said these instructions

20 violated Article 5 because the voters were third parties

21 to the amendment process. Article 5 doesn't say that.

22 Article 5 provides a specific mechanism by which

23 the Constitution can be amended, and it allocates

24 functions in Article 5 for certain branches of the

25 government to perform. The exclusion of the people from

3

1 any specific one of those functions does not exclude the

2 people from the right to communicate to their

3 representatives that they want the Constitution amended.

4 QUESTION: Mr. McAdams, precisely what is the

5 instruction provision? You say this is the first of the

6 three you are talking about?

7 MR. McADAMS: Yes. This is the first of the

8 three principles that I'm talking about, Your Honor.

9 QUESTION: Okay.

10 MR. McADAMS: And the instruction is physically

11 contained in Section 17, paragraph one of the proposed

12 amendment, and it relates to Sections 15 and 16 of the

13 amendment, Your Honor, Section 15 stating the intention of

14 the Missouri voters, and Section 16 specifically stating

15 the proposed constitutional amendment that the voters

16 support.

17 QUESTION: Well, are you arguing to us now on

18 the assumption that the instruction standing alone has no

19 teeth, no enforcement part, and you are going to get to

20 the enforcement part, the teeth part later?

21 MR. McADAMS: That is correct, Your Honor.

22 Standing alone, the instructions provisions, these three

23 sections, have no teeth. They are a nonbinding

24 instruction. And as we were instructed by then-Justice

25 Rehnquist's opinion in Kimble, the nonbinding instructions

4

1 and advice by the voters to a legislature does not violate

2 Article 5.

3 QUESTION: And this is the provision that Judge

4 Hansen voted to uphold?

5 MR. McADAMS: That is correct.

6 QUESTION: In doing his dissent?

7 MR. McADAMS: That is correct, Your Honor.

8 Although I should say, he did not specifically mention

9 Section 17.1. He only specifically mentioned 15 and 16.

10 The instruction provision of 17.1 would be included in his

11 logic.

12 QUESTION: But part 2 of the Missouri

13 constitutional Article 8, Section 17, is severable, is it?

14 MR. McADAMS: Yes, Your Honor.

15 QUESTION: The ballot proposition?

16 MR. McADAMS: Yes, Your Honor. Pursuant to

17 Section 22 of Article 8, any provision the Court would

18 find unconstitutional in Article 8 is severable from the

19 remainder.

20 QUESTION: And your point is just that

21 disregarding for the moment the provision that has to

22 appear on the ballot by a candidate's name, that the rest

23 of it doesn't violate Article 5?

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

25 Moving on to the second principle, Missourians

5

1 may request information and may receive information on the

2 ballot about congressional candidate behavior. This Court

3 has indicated and respondents do not contest that states

4 may provide information on the ballot.

5 QUESTION: I think their argument is that it

6 goes beyond information to the point of putting the thumb

7 on the scale, because essentially it uses pejorative

8 language. It's doing more than informing. It's saying,

9 you know, these people have, or this person has violated a

10 trust. And that's more than information. That's a kind

11 of conclusion of fault. That seems to be one of the points

12 of their objection. How do you respond to that?

13 MR. McADAMS: Well, Your Honor, there is nothing

14 that really goes to point three that I made in my opening,

15 that it goes to the specific ballot information and I

16 respond to that by saying, there is nothing that provides

17 voters valuable information that couldn't be used by those

18 voters as the basis for a decision to vote against a

19 candidate. There is no indication in this case, no

20 evidence in this case, that voters will be so overwhelmed

21 by the information contained in the ballot information

22 that they will have the will --

23 QUESTION: Well, it's not -- I don't know that

24 they have to make the case that the voters are going to be

25 overwhelmed. The case that they are making is simply that

6

1 the voters are being given something more than

2 information. The voters are being given in effect a

3 judgment by the state that the particular candidates have

4 referred to, have done something wrong, and that is more

5 than information.

6 MR. McADAMS: I simply disagree with that, Your

7 Honor. The voters are not being given any more than

8 information. The State of Missouri --

9 QUESTION: Mr. McAdams, can you point to any

10 other example? There have been examples in briefs

11 certainly of instructions that were given at the time of

12 the constitutional convention, but this has been labelled

13 a Scarlet Letter label. It's not the same as Democrat and

14 Republican. It says, disregarded voters' instruction. It

15 says, declined to pledge to support. Are there any other

16 such labels that go on a ballot at a time when the

17 candidate has no opportunity to answer back?

18 MR. McADAMS: Well, I would say that party

19 labels go on the ballot at a time when voters have, I mean

20 candidates have no opportunity to respond back. The

21 history of the country is such that party labels were

22 outcome determinative in numerous congressional districts,

23 Your Honor.

24 QUESTION: Well, I asked you, you gave the party

25 labels example. Is there anything comparable to

7

1 disregarded voters' instruction on issue X, declined to

2 pledge?

3 MR. McADAMS: Yes, Your Honor.

4 QUESTION: I don't know of anything comparable

5 to that.

6 MR. McADAMS: There is something comparable,

7 Your Honor. In the State of Nebraska, in the early 1900s

8 as the people became disaffected with Congress'

9 unwillingness to amend the Constitution to provide for the

10 direct election of senators, they placed labels on the

11 ballot about whether state legislative candidates --

12 QUESTION: Oh, but that's state legislative

13 candidates, and that's different. There is no federal

14 Constitutional control, except perhaps there might be a

15 First Amendment argument, but we are talking about here --

16 whatever the state wants to do vis-a-vis state

17 legislatures is different from what they can do, vis-a-vis

18 people who are in a national body and when they are there,

19 they are representing all the people.

20 MR. McADAMS: Well, First Amendment is one of

21 the claims that they make, Your Honor, and the First

22 Amendment claim would equally be evadable to a situation

23 like the State of Nebraska did. We would not have, for

24 example, a qualifications clause analysis that would apply

25 to the state.

8

1 QUESTION: Well, do you have any other example

2 of someone running for federal office, the House or the

3 Senate, where there is such a label?

4 MR. McADAMS: I believe there -- not exactly

5 like this label, Your Honor. There are situations where

6 federal candidates have, for example, their address

7 disclosed.

8 QUESTION: I think in Arizona, at least at one

9 time, candidates for the Senate and the House of

10 Representatives had to say they were pledged to recall,

11 which meant that if the state legislature recalled them,

12 they would have to resign. Because they all pledged, and

13 of course, it never happened, so --

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

15 Your Honor.

16 QUESTION: Excuse me. And that was shown on the

17 ballot in Arizona as well?

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

19 The rules would seem to provide states, the

20 election clause would seem to provide states an

21 opportunity to place information on the ballot.

22 QUESTION: Well, doesn't the information, given

23 the courts' cases here anyway, have to be generally

24 applicable and evenhanded, like all the regulation because

25 if it's not, that's -- I mean, that phrase comes from a

9

1 case called Anderson, but there are many of like tenor, it

2 seems to me, that if it's not generally applicable and

3 evenhanded, the state, for no legitimate regulatory

4 interest, is biasing the election, which, which hurts the

5 First Amendment rights of all those who happen to think

6 that term limits is not the most important issue in the

7 election, that would prefer the election were decided on

8 the basis of other issues.

9 MR. McADAMS: Well --

10 QUESTION: Whatever. The economy. The

11 environment. Whatever.

12 MR. McADAMS: There is nothing about providing

13 information that dictates that it is the basis upon which

14 voters will choose.

15 QUESTION: Well, of course, that's generally

16 true, and it's for that reason that when we get down to

17 the ballot itself, which normally, regulation of the

18 ballot is not for information providing purposes. It is

19 for fair vote purposes. And that's why it seems to me that

20 these cases have held when we come down to ballot

21 regulation, what we are interested in is whether the

22 state's regulation is generally applicable and evenhanded.

23 MR. McADAMS: Well, I think Timmons used the

24 phrase reasonable. The state could enact reasonable

25 regulations.

10

1 QUESTION: Yes. Reasonable in terms of such

2 purposes as the integrity of the electoral process,

3 preventing voter confusion, ensuring orderliness, and

4 ensuring fairness. Now, not, I haven't seen anything that

5 says reasonable in terms of providing information about

6 one issue but not other issues.

7 MR. McADAMS: Well, Your Honor, right now, we

8 have a situation where the state only provides information

9 about party affiliation.

10 QUESTION: Party affiliation is not -- the

11 candidate, I take it, voluntarily associates himself with

12 that and wants that on the ballot.

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

14 history --

15 QUESTION: Well, are there instances where the

16 affiliation was put on the ballot over the objection of

17 the candidate?

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

19 Your Honor.

20 QUESTION: I suppose in most of the south, until

21 maybe 25 years ago, I'm sure the Republican would not have

22 wanted his name on the ballot.

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

24 QUESTION: For his party affiliation on it.

25 MR. McADAMS: I'm quite certain that is true,

11

1 Your Honor, and I think that's true for third party

2 candidates today as well. In the example that the

3 respondents give about the one time this was done in

4 California, they give an example where a state legislative

5 candidate who had won a plurality in the party primary

6 came back in the run-off election and lost to someone who

7 did not have a label. It seems that what respondents are

8 offended by there is that the party label designation was

9 not the piece of information that controlled the electoral

10 result.

11 QUESTION: You can argue about whether a party

12 label is generally applicable and evenhanded. So my

13 question is, are you accepting the principle, but saying

14 that this label is just as evenhanded as a party label, or

15 are you denying the principle?

16 MR. McADAMS: I'm not denying the principle that

17 the state cannot mislead voters.

18 QUESTION: That wasn't the principle. The

19 principle I'm reading from the cases, which I have said a

20 lot of times, I just want to see if you accept it,

21 generally applicable and evenhanded.

22 MR. McADAMS: And I believe this is generally

23 applicable.

24 QUESTION: You accept the principle and the

25 issue of whether this is evenhanded?

12

1 MR. McADAMS: I am not aware of any basis for

2 disputing that principle, Your Honor.

3 QUESTION: Do you say that it's evenhanded?

4 MR. McADAMS: I do, Your Honor.

5 QUESTION: Could you call it the Scarlet Letter?

6 MR. McADAMS: I don't call it the Scarlet

7 Letter, Your Honor. People who apply a pejorative label

8 to this enactment call it a Scarlet Letter.

9 QUESTION: Could a Republican state label a

10 Democrat dirty Democrats?

11 MR. McADAMS: No, Your Honor.

12 QUESTION: No? Well, isn't that about what they

13 are doing here. Disregarded. Refused to pledge or

14 declined to pledge. That's why we get into the Scarlet

15 Letter analysis. We would be in a Scarlet Letter analysis

16 if the Republicans said dirty Democrats. I don't see

17 where you are going to draw the line.

18 MR. McADAMS: Well, in that situation the state

19 is expressing a judgment on the candidate that actually

20 invades the province of the voter. Here we are not doing

21 that. There are eight specific behaviors that are being

22 evaluated.

23 QUESTION: How does that invade the province of

24 the voter in a way that is not true here? I mean, what's

25 the distinction?

13

1 MR. McADAMS: Well, the distinction is that that

2 amounts to, in my mind, a recommendation to vote against

3 the candidate. It would be as if in this case we instead

4 of using the label disregarded voters' instructions

5 concerning term limits for this same behavior, we use the

6 phrase traitor. That is misleading. It would essentially

7 take away, I believe, and overbear the will of the voter

8 if they believe they were voting for a candidate who was a

9 traitor.

10 QUESTION: Well, if you are trying to tell us

11 that this does not disadvantage the candidate in any way,

12 I just find that very difficult to accept.

13 MR. McADAMS: And that is not what I'm saying,

14 Your Honor. This may disadvantage some candidates with

15 some voters.

16 QUESTION: But on your theory, I suppose --

17 QUESTION: But then it's not neutral.

18 MR. McADAMS: Well, it's just as neutral as

19 party labels, because party labels disadvantage

20 candidates. It is the equivalent --

21 QUESTION: Do you know any state that requires

22 you to put your party affiliation on the ballot when your

23 party affiliation is not the reason you are on the ballot?

24 MR. McADAMS: I do not know of any state that

25 does that, Your Honor.

14

1 QUESTION: In other words, you can get on the

2 ballot without a party affiliation, if you acquire enough

3 signatures, right?

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

5 QUESTION: But the state ballots have lines for

6 the major parties that in the last election got enough

7 votes, so the reason they show that is they are showing

8 you why you are on the ballot, and if you are on the

9 ballot for some other reason, you think they could make

10 somebody who got on the ballot by popular referendum or

11 signatures, you think they could make him declare a party

12 affiliation shown next to his name?

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

14 could.

15 QUESTION: That's right.

16 QUESTION: I'd like to ask you whether if we

17 were to uphold this kind of a provision, whether it

18 wouldn't then be possible for a state to have by

19 initiative or referendum a similar provision saying that

20 we instruct our members of Congress that they are to

21 support a constitutional amendment allowing prayer in

22 schools, or a constitutional amendment reversing an

23 abortion decision, or any other hot button issue where the

24 voters of the state decide they are going to instruct

25 members of Congress, and then under your theory, I

15

1 suppose, a provision could be inserted on the ballot

2 opposite the name of any candidate who refuses to express

3 a position or disavow that position that --

4 MR. McADAMS: That is --

5 QUESTION: -- informs the voters; is that

6 right?

7 MR. McADAMS: I'm sorry, Your Honor. Yes. That

8 is correct, if they did it through this mechanism, they

9 set forth the specific Constitutional provision that they

10 wanted enacted and the behaviors that they wanted to be

11 evaluated, so that there was no --

12 QUESTION: It certainly would change the

13 election process as we have known it, wouldn't it?

14 MR. McADAMS: Well, in footnote four of Foster

15 versus Love, this Court left open the question of whether

16 or not states must use conventional means to hold

17 elections. But I submit to you that we already know the

18 answer to that question. And we know it because the way

19 in which ballots have been distributed has changed

20 throughout history. Initially, we started out with nothing

21 but write-in ballots. Then parties were actually around

22 printing up ballots for people to cast and using that

23 mechanism to control and buy elections, and the states

24 came up with a mechanism which allowed the states to

25 prepare the ballot. So there is nothing that requires us

16

1 to use the conventional method.

2 QUESTION: But Mr. McAdams, the point has been

3 made very forcefully that this is a national legislature.

4 And you are saying you could freight down someone from a

5 state with all kinds of policies that may be preferred by

6 that state and that person would be laden with those

7 obligations, even though he or she is now a member of a

8 national, as opposed to a state body.

9 MR. McADAMS: Well, Your Honor, first of all, I

10 don't think they are obligations. I think they are

11 instructions, and they are nonbinding instructions.

12 QUESTION: But the list of things that the

13 person is supposed to do if you are going to be faithful

14 to that pledge, you have to do all those things. You have

15 to sponsor these measures, and you have to urge other

16 people to join you, and you have to take a very active

17 role.

18 MR. McADAMS: Your Honor, you only have to

19 propose if it's not otherwise been proposed. You only

20 have to sponsor if it's not otherwise been sponsored. And

21 there is nothing in the instructions that require you to

22 speak in favor of this proposed amendment.

23 QUESTION: But that interferes with the basic

24 point, that the relation between the congressmen and the

25 people is one that's direct and does not involve

17

1 intervention by the state. We have two sets of relations

2 in the federal system, each with its own duties and

3 responsibilities. One is between the Federal Government

4 and the citizen without the intervention of the state.

5 The other is between the state and the citizen without the

6 intervention of the Federal Government, except in certain

7 instances where an accommodation has to be made like

8 regulation of time, place and manner of elections, but

9 those are neutral.

10 MR. McADAMS: But this doesn't interfere with

11 that relationship, Your Honor. The only thing this does

12 is allows voters --

13 QUESTION: But it seeks to alter and to regulate

14 it.

15 MR. McADAMS: I disagree, Your Honor. This only

16 allows the people to evaluate candidate behavior. We have

17 in our country a tradition now where legislative

18 candidates obfuscate their record to the point where it is

19 difficult for the electorate to determine what they have

20 done.

21 QUESTION: But the purpose of doing this is to

22 control the conduct of the Congressman in office, and I

23 submit to you, there is simply no authority for the state

24 to do that. The voters can certainly do that.

25 MR. McADAMS: The last sentence of Section 16,

18

1 we, the people of the State of Missouri, have chosen to

2 amend the state Constitution to inform the voters

3 regarding incumbent and nonincumbent federal candidate

4 support for the proposed amendment. This is an

5 informational provision to the voters, so that they can

6 evaluate candidate behavior, and this is information they

7 have asked for. This is the kind of information that

8 could seriously improve the ability of the citizens to

9 engage in an educated electoral decision, and could

10 combat, I think rather effectively, voter disillusionment

11 with the system.

12 QUESTION: What about, there are a number of

13 districts within Missouri where the people were not in

14 favor of this proposition. And if the person is supposed

15 to represent, disregard voters' instruction, he might not

16 have disregarded the voters' instructions from his

17 district. His district may have been overwhelmingly

18 against this proposal.

19 MR. McADAMS: This proposal passed in every

20 congressional district in the State of Missouri. Now

21 there are 28 counties that it did not pass in.

22 QUESTION: All right. Someone is from one of

23 those counties.

24 MR. McADAMS: Well, the Federal Government

25 through the elections clause tells the states that the

19

1 state regulates the ballot. It is not inappropriate,

2 then, for the state to have consistent regulations across

3 the state regarding that proposal, Your Honor.

4 QUESTION: But I -- Justice Ginsburg posed a

5 hypothetical that I'm interested in. Suppose that,

6 hypothetical case, in a congressional district, the voters

7 are overwhelmingly against a certain proposition and a

8 state Constitution has this label providing they be

9 notified that they have voted to the contrary. What

10 result?

11 MR. McADAMS: The same result would apply

12 because the elections --

13 QUESTION: So you are, you are allowing the

14 state as an entity to interfere with the relations between

15 the Congressman, the Congresswoman, and those people in

16 the district.

17 MR. McADAMS: That's not true, Your Honor.

18 Because if the people in that district voted against term

19 limits, they will take a look at this ballot information

20 and they will not use it as a rational basis to vote

21 against a candidate unless their opinion has changed. If

22 their opinion has changed, then they will use this

23 information. But it does not interfere with the

24 relationship.

25 QUESTION: Certainly state legislatures before

20

1 the 17th amendment, if that was the one that provided for

2 direct election of senators, communicated a great deal

3 with their senators.

4 MR. McADAMS: Absolutely, Your Honor. There is a

5 lot of historical evidence that state legislators

6 instructed the state senators. In fact, the first --

7 QUESTION: You mean federal senators, well,

8 senators from the state.

9 MR. McADAMS: Yes. Senators from the state

10 impacted federal senators, and in fact, that is the

11 mechanism in large part which propelled the first 10

12 amendments and the 11th amendment to passage. After the

13 enactment of Article 5, the states directed that those be

14 passed. Eight of the original 13 colonies issued such

15 instructions for one of those 11 amendments.

16 QUESTION: This just applies to Congress

17 persons, though, doesn't it? It doesn't apply to

18 senators.

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

20 Honor.

21 QUESTION: Oh, it does.

22 QUESTION: There is something about this, the

23 perception, say, of a voter. We very carefully limit the

24 speech that's possible as you are approaching the poll.

25 No electioneering by the polls. And this Court has upheld

21

1 that against First Amendment challenge, and yet when they

2 get into the voting booth, this thing juts out at them in

3 capital letters, and that somehow seems inconsistent with

4 our notion that the voters should not be bombarded with

5 slogans for or against whatever issue when they go into

6 that ballot.

7 MR. McADAMS: Well, we have -- we have -- the

8 Court has held that elections -- pardon me -- people

9 cannot politic within so many feet of the polling place,

10 Your Honor. That is true. But the Court has never held

11 that the people cannot have the information in the voting

12 booth with them that they want.

13 QUESTION: We haven't held that people can't

14 politic. We have held that if a state doesn't want people

15 to politic, it's okay.

16 MR. McADAMS: That is true, Your Honor.

17 QUESTION: In your view, could they, in addition

18 to what's in the capital letters, could they add in the

19 following respects, and then quote the paragraphs that

20 were the failures, the basis for it?

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

22 Honor.

23 QUESTION: Does, in Missouri, do congressmen

24 take an oath to uphold the state Constitution?

25 MR. McADAMS: Do federal congressmen take such

22

1 an oath?

2 QUESTION: No. Do congressmen and senators in

3 Missouri take an oath to uphold the state Constitution?

4 MR. McADAMS: I'm not aware that federal

5 representatives and senators do that, Your Honor.

6 QUESTION: I would be very surprised if the

7 state could impose that requirement.

8 MR. McADAMS: I think that is true.

9 QUESTION: Well, doesn't that prove the point

10 here? That the state simply cannot interfere with the

11 relation between the congressmen and the voters directly?

12 MR. McADAMS: Absolutely not, Your Honor. There

13 is nothing that would suggest that the state couldn't ask

14 federal congressmen to take such a pledge, and if they

15 failed to do so, report that they declined to take such a

16 pledge. The federal candidates --

17 QUESTION: You think that the, that the state

18 can require congressmen and senators to support the state

19 Constitution by an oath?

20 MR. McADAMS: I think they can ask them if they

21 will. If I could reserve the remainder of my time.

22 QUESTION: Very well, Mr. McAdams. Mr. Franklin,

23 we will hear from you.

24 ORAL ARGUMENT OF JONATHAN S. FRANKLIN

25 ON BEHALF OF RESPONDENT

23

1 MR. FRANKLIN: Mr. Chief Justice, and may it

2 please the Court. The State of Missouri has attempted to

3 use its control over the ballot to determine the issues

4 upon which federal elections will be decided and to

5 influence voters to vote against candidates who do not

6 support a state preferred political viewpoint.

7 QUESTION: I don't know that that's true about

8 simply the 17-1 provision that Judge Hansen thought was

9 permissible, where it's simply the legislature instructs

10 members of Congress to try to push for a term limits

11 amendment. Nothing appears on the ballot at all.

12 MR. FRANKLIN: Two points, Your Honor. First,

13 clarification. Judge Hansen did not find that to be

14 constitutional.

15 QUESTION: Oh, I thought he did.

16 MR. FRANKLIN: No. On page A-23 of the appendix

17 to the petition, Judge Hansen clearly stated that he

18 agreed with the majority that Sections 17, 18, and 19 were

19 unconstitutional. He differed as to whether 15 and 16,

20 which is essentially the preamble, could be severed. The

21 severance question, Your Honor, is not before the Court.

22 It was addressed by the Court of Appeals. It has been

23 waived. The petitioner could have chosen if it had wanted

24 to present that issue in its petition or its brief. It

25 did not, and perhaps the reason it did not is the question

24

1 of severability is predominantly one of state law as to

2 whether under Missouri state law various provisions would

3 be severable from one another, whether the voters would

4 have voted for a preamble that didn't do anything. That

5 is a question of state law.

6 It was not presented in the petition. It was

7 not presented in the brief. If the Court had been

8 presented with it, it's likely the Court would decline to

9 consider a question of state law such as that one.

10 QUESTION: Well let me ask you this, then. Do

11 you think that the provision that instructs members of

12 Missouri's congressional delegation to use their powers to

13 pass an amendment is, stands on the same footing as the

14 ones that are, that are printed on the ballot?

15 MR. FRANKLIN: We believe first that it stands

16 together with this law. If, in a hypothetical --

17 QUESTION: I mean constitutionally.

18 MR. FRANKLIN: The answer is if there were a,

19 just instruction, nothing else, which is not what this

20 case is about, if there were, we would argue in such a

21 case that it would be in that case an impermissible

22 chilling effect on speech.

23 QUESTION: Well, but why can't that provision be

24 severed from the other two?

25 MR. FRANKLIN: The principal reason is because

25

1 the severance question is not before the Court. If --

2 QUESTION: Well, but the Petitioner argues here

3 that the Court of Appeals was wrong right across the board

4 in throwing these out. Now, if we were to conclude that

5 the Court of Appeals was wrong on one, but right on the

6 other two, that certainly is fairly raised by the

7 petition.

8 MR. FRANKLIN: I would say not, Your Honor, and

9 for the reason that the severability issue is one of state

10 law. However, if --

11 QUESTION: Well, why couldn't we say the

12 dissenter was right on that point. He said Article 15 and

13 16. Not 17.1, as you pointed out. But why wouldn't it be

14 open to us to say the dissenter was right on that point?

15 MR. FRANKLIN: I think it would be open to the

16 Court, had the issue been raised and briefed and we had

17 briefed the question under Missouri state law as to what,

18 what is or is not severable. However, one also needs to

19 look at the remedy in this case. The remedy is not that

20 certain provisions are excised from the Constitution.

21 What the remedy says is the State of Missouri is enjoined

22 from implementing or enforcing the provisions of the

23 Constitution, including Section 17, which contains both

24 the instructions and the labels through which they are

25 enforced. This Court need only affirm that judgment.

26

1 QUESTION: But if we agree with some of the

2 reasons they gave, that is, that some of the provisions

3 are bad, but we think that some of the other ones are

4 good, why -- we don't necessarily have to reach the

5 severability point ourselves. Why couldn't we remand and

6 leave it to the lower court to decide the severability

7 question in light of our disagreement with them that all

8 the provisions they said were unconstitutional were?

9 MR. FRANKLIN: Because the Court would be

10 reaching the severability issue in that case and remanding

11 it to --

12 QUESTION: No, we wouldn't. We would be saying

13 that we find that this is a difficult case. Some of these

14 provisions withstand constitutional attack. Others don't.

15 Let me remand it for you and then can you figure out the

16 state law.

17 MR. FRANKLIN: But the Court of Appeals did

18 address the severability question. In the last footnote

19 of its appeal, it held --

20 QUESTION: But I think several of us feel that

21 it isn't really an issue of severability that we would

22 decide here. We would simply say we disagree with one

23 phase of the Court of Appeals opinion on the

24 constitutional issue, we agree on two others or three

25 others, and send it back to the Court of Appeals. You

27

1 affirm in part and reverse in part without necessarily

2 getting to severability here.

3 MR. FRANKLIN: Well, let me then get into why

4 the Court, if the Court were just to consider the

5 instruction provision standing alone, which I understand

6 is the issue that was raised, we would argue, for the

7 first time today, if the Court were to, just to consider

8 that, it would have to hold that contrary to Judge

9 Bartlett's decision in this case, the instructions

10 provisions can be implemented or enforced, which is the

11 injunction that this Court, we are asking the Court to

12 affirm.

13 QUESTION: No. Would you tell us whether in

14 your view --

15 MR. FRANKLIN: Yes.

16 QUESTION: In a hypothetical case.

17 MR. FRANKLIN: Yes.

18 QUESTION: A state can simply instruct its

19 federal representatives, congressmen and senators, that it

20 wants them to work for a particular objective. That's all

21 it says. It seems to me that's a classic right of

22 petition on the part of the people.

23 MR. FRANKLIN: No, it is not. And it would be

24 in our view a violation of the Constitution. It would be

25 unprecedented and we have uncovered no historical evidence

28

1 to show that any, it has ever been tried before that an

2 instruction to a representative to vote and take other

3 legislative activities in a particular manner --

4 QUESTION: But certainly there was much

5 instruction to the senators at one time.

6 MR. FRANKLIN: The difference here, and it's an

7 important difference, is this instruction is codified as

8 law, is given the force of legal command, it is in the

9 Missouri Constitution. Every person in this --

10 QUESTION: Let's say they use the word advice.

11 We wish, we, the legislature of the State of Missouri,

12 wish our representatives to know that we think they should

13 work for the following objectives, term limits, whatever.

14 MR. FRANKLIN: It would be different, Your

15 Honor. And we have a quote from George Washington in our

16 brief in which --

17 QUESTION: So the difference is between

18 instruction and advice?

19 MR. FRANKLIN: Yes, Your Honor. And George

20 Washington said, and it's quoted at page 29 of our brief,

21 he said the sense -- with regard to instructions

22 specifically, he said the sense, but not the law of the

23 district may be given. It is different to say we advise

24 that you do this.

25 QUESTION: In what capacity was George

29

1 Washington speaking?

2 MR. FRANKLIN: He was in that case writing a

3 letter to his nephew who was a future justice of this

4 Supreme Court, Bushrod Washington. But he said that, and

5 we are not saying that that is a principle of law, but the

6 reasoning applies here and it applies for the following

7 reason. People take seriously their obligations to follow

8 the law. And I think that applies perhaps even more

9 strongly to members of Congress. A member of Congress who

10 is faced with a law that says we hereby instruct you as a

11 matter of Missouri constitutional law, codified as a

12 provision of law, given the force of legal command to do

13 this act in Congress.

14 QUESTION: But it's not a legal command. I mean,

15 if you are -- you don't have to say it's binding. If it's

16 a nonbinding instruction, it's not an instruction. I

17 mean, you can call it an instruction. Is that the vice of

18 this thing, misusing the word instruct, as opposed to

19 advise, even though everybody knows and they acknowledge

20 here that there is no enforceable mechanism on the

21 instruct?

22 MR. FRANKLIN: And all we are asking this Court

23 to do is to, as Judge Bartlett did, say that the state may

24 not implement or enforce the provision.

25 QUESTION: May I get -- the only implementation

30

1 or enforcement that I'm aware of is the implementation or

2 enforcement in the form of the ballot statements; is that

3 correct?

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

5 QUESTION: So that our case boils down to

6 whether in the whole context, all the provisions in the

7 Constitution, may the state include these, as you put it,

8 ballot disparagements. That's the only issue before us?

9 MR. FRANKLIN: Yes. No. The issue, the issue

10 before the Court is whether as the Court of Appeals held,

11 Article 8 of the Constitution may not be implemented or

12 enforced. Again, the Court held that.

13 QUESTION: Right. The only implementation or

14 enforcement that we are dealing with, and that the court

15 below dealt with, was the ballot statements?

16 MR. FRANKLIN: That is correct. And Judge

17 Bartlett was correct when he said that the remedy is, we

18 hereby enjoin the state from implementing or enforcing

19 Article 7, Section 17, which contains both the

20 instructions and the enforcement. To take a hypothetical,

21 if a law came before this Court where at Section whatever

22 of the statute and Section -- subsection A said no person

23 may criticize the president, subsection B said anyone who

24 violates subsection A will be given a $1,000 fine. The

25 remedy of such a case would be, as the remedy was here, to

31

1 enjoin or enforce, to enjoin the enforcement or

2 implementation of such a statute. That is all we are

3 asking the Court to affirm in this case.

4 QUESTION: Let me get this straight because

5 apparently, something may turn up that I don't fully

6 understand. Was there an injunction against -- was the

7 part that simply we have been talking about, instructs or

8 advise, was that declared invalid?

9 MR. FRANKLIN: There was no declaratory judgment

10 in this case. There was simply an injunction.

11 QUESTION: Well then, does the injunction have

12 any consequence with respect to that provision of the

13 Missouri Constitution?

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

15 sorry.

16 QUESTION: The provision that simply says the

17 legislature instructs.

18 MR. FRANKLIN: Yes. It is a consequence that

19 they may not implement or enforce that provision. The way

20 they do it, as Justice Souter mentioned, was -- is through

21 the instructions, through the labels. And the labels we

22 believe are unconstitutional for the principal reason that

23 they exceed the state's limited delegated authority under

24 the elections clause to regulate only the times, places

25 and manners of holding federal elections.

32

1 QUESTION: And I suppose you would say that the

2 injunction has importance and continuing significance in

3 the event the legislature attempts some other means of

4 enforcement?

5 MR. FRANKLIN: Certainly, Your Honor. A

6 decision by this Court that an instruction to a sitting

7 member of Congress to vote in a certain way may be

8 implemented or enforced, we believe would be contrary to

9 the Constitution. It would violate the First Amendment.

10 It would be a chilling effect on speech.

11 QUESTION: But what if Missouri had done nothing

12 but pass that part which said we instruct senators and --

13 there is no known prospect of enforcement at all.

14 MR. FRANKLIN: We would argue in such a case

15 that it would contravene the First Amendment because it

16 would be a chilling effect on speech for the reasons

17 essentially that George Washington stated, which is that

18 the sense, but not the law of the district, may be given.

19 This is unprecedented. We are not aware of any --

20 QUESTION: But it wouldn't be the law. There is

21 no enforcement mechanism.

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

23 Honor.

24 QUESTION: It seems to me, though, we get a lot,

25 we used to get a lot of things that we call upon our

33

1 delegation in Congress to declare this National Pork Week.

2 I mean, there are a lot of those. They are always passing

3 things like that in state legislatures. Are all those

4 unconstitutional?

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

6 QUESTION: But if they said we insist that you

7 call this National Pork Week, I don't know if it's

8 National Pork Week or National Port Week, but regardless,

9 a lot of them come in. Now you're saying if they use the

10 word insist, that it's unconstitutional?

11 MR. FRANKLIN: We are saying if they use the

12 word instruct. But the word, the instructions are just,

13 are not --

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

15 case?

16 MR. FRANKLIN: No. No. We do not. And the

17 reason is because the instructions are part and parcel of

18 the law which the Court of Appeals has said stand or falls

19 on its own, and the principal reason that the law as a

20 whole falls is because it does exceed the state's neutral

21 power to serve as a, an administrator of federal elections

22 and instead has the state putting its thumb on the

23 electoral scale.

24 QUESTION: Tell us about party labels, Democrat

25 and Republican?

34

1 MR. FRANKLIN: Yes. The reason that party

2 labels would be permissible generally speaking is because

3 they are integrally related to the conduct, the orderly

4 conduct of an election which itself is organized around

5 party lines. In Missouri, as in elsewhere, one does not

6 come to be on the ballot strictly as an individual, but

7 rather as the nominee in most instances of a party. It

8 would be a different case if the state, and I understand

9 it to be conceded here, if the state said to an individual

10 who had achieved a ballot spot as an independent, that

11 nevertheless, that person must disclose that they are, for

12 example, a member of the communist party or the socialist

13 party. That would not be related to the orderly conduct

14 of an election organized around party lines because that

15 would not have anything to do with how the person got on

16 the ballot.

17 Second, a party label unlike the labels in this

18 case, a neutral requirement that all party labels be

19 listed is not related to the content of any individual's

20 views on an issue. Any connotation that the voters draw

21 between parties and viewpoints is imperfect at best, but

22 more important, it's a connotation that the party and the

23 candidate voluntarily associate themselves with in the

24 process of running in an election which itself is

25 organized around party lines.

35

1 Here, by contrast, the labels are both content

2 and viewpoint based. They are content based because they

3 single out only one issue, term limits, and say to the

4 voters, that is the issue that we deem to be most

5 important of your consideration, most worthy of your

6 consideration. And second, even worse, they are viewpoint

7 discriminatory. They are viewpoint discriminatory because

8 the state is singling out one side of the issue and is

9 labeling only one side and it is doing it in such a way

10 that it is telling the voters that this person has

11 disregarded or failed, pledged to follow a policy which

12 the state deems to be the correct one. And --

13 QUESTION: I take it your First Amendment

14 argument is an alternative argument to the first argument

15 that the state simply lacks the power to do this?

16 MR. FRANKLIN: Yes. The first argument is the

17 state lacks the power. It is an alternative argument

18 under the First Amendment. It relies on many of the same

19 principles, however. The elections clause is a limited

20 delegation of authority to regulate only the times, the

21 places, the manners of holding federal elections.

22 QUESTION: That particular argument wasn't put

23 before Judge Bartlett. It was before the Eighth Circuit.

24 Am I right about that?

25 MR. FRANKLIN: No, Your Honor. It was put

36

1 before Judge --

2 QUESTION: The election clause was put before --

3 MR. FRANKLIN: Yes. Yes.

4 QUESTION: He didn't rule -- Bartlett didn't

5 rule on that?

6 MR. FRANKLIN: Yes, he did, Your Honor. One can

7 find the ruling at pages A-42 and 43 of the appendix of

8 the petition, and A-45 and 46.

9 QUESTION: Was an issue ever -- just a technical

10 point. Was an issue ever made of the fact that the, what

11 was objected to here was done by a constitutional

12 amendment rather than by the legislature which the clause

13 itself refers to?

14 MR. FRANKLIN: No, Your Honor. That was not

15 raised below, but it has been raised by all parties in

16 this Court and has been briefed by all parties in this

17 Court, but it was not raised below.

18 QUESTION: May I ask before you are finished, is

19 a threshold standing question with respect to the initial

20 Plaintiff here. In short, he said in the end, I'm getting

21 out because of Gephardt, I don't want to be a competitor

22 of Gephardt, so this is beside the point as to Gralike?

23 MR. FRANKLIN: Gralike. Yes. The Court, we

24 believe that that case would still be capable of

25 repetition, yet evading review under this Court's

37

1 precedents. However, Mr. Harman did intervene as a

2 respondent on appeal. Mr. Harman has the same interests

3 as Mr. Gralike.

4 QUESTION: I noticed in his affidavit that he is

5 running for the election in 2000. I assume that's

6 tomorrow. He doesn't -- or am I wrong? But he doesn't

7 say that he, as in Golden versus Wickler, that he intends

8 to run again and it's likely that he will run again.

9 MR. FRANKLIN: Two points. First, Your Honor,

10 he did run. He was not successful in the primary. He

11 does intend to run again. He has run in the past. He

12 intends to run again. But the Court's --

13 QUESTION: But is that in the affidavit before

14 the Court? That's your representation to us now?

15 MR. FRANKLIN: It's my representation, but the

16 Court's elections cases make clear that that is not a

17 requirement in the Court's elections cases, and those are

18 the cases that we have cited in our brief at footnote one,

19 I believe in this context. But in any event, I will

20 represent to you that he does intend to run again.

21 The state, as this Court has held, has the

22 authority under the elections clause to enact procedural

23 or mechanical regulations that are nondiscriminatory,

24 evenhanded and politically neutral. It does not have the

25 delegated power to single out one issue which it deems

38

1 more worthy of voter consideration than others or to

2 disadvantage candidates who hold disfavored views on that

3 issue.

4 The State of Missouri, purportedly to maintain

5 the integrity and the neutrality and the sanctity of the

6 electoral process, prohibits candidates and their

7 supporters from expressing any views to the voters within

8 25 feet of the polling place. Yet the state itself now

9 seeks to be inside the voting booth to inject its own

10 preferred views and viewpoints on the ballot. Such a

11 manipulation of the ballot would in our view, if upheld,

12 seriously undermine the system of free and fair Democratic

13 elections that sets this nation apart from so many others

14 in the world. Thank you.

15 QUESTION: Thank you, Mr. Franklin. Ms.

16 Underwood, we'll hear from you.

17 Ms. Underwood, Section 1 of Section 17 says we

18 the voters of Missouri hereby instruct each member of our

19 congressional delegation to use all of his or her

20 delegated powers to pass the congressional term limits

21 amendment set forth above. If that stood by itself, would

22 that have any constitutional flaw?

23 ORAL ARGUMENT OF BARBARA D. UNDERWOOD

24 ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE,

25 SUPPORTING THE RESPONDENT

39

1 MS. UNDERWOOD: Mr. Chief Justice, that would

2 depend on the meaning of instruct. If it were binding law

3 and unlawful for a Congressman to disobey it, then it

4 would have many of the same flaws as this statute. If it

5 were advisory, then it would not, but we know --

6 QUESTION: How do you determine whether it --

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

8 QUESTION: I mean, suppose there is just no

9 sanction for it. We instruct you to do it, but there is

10 no sanction whatever.

11 MS. UNDERWOOD: Well, the question would be

12 whether it was meant to have binding effect, and whether,

13 for instance, the legislature might, somebody might seek

14 mandamus to enforce it, whether it was seen as enforceable

15 or not.

16 QUESTION: Not enforceable. It's not

17 enforceable.

18 MS. UNDERWOOD: Well, if it's completely

19 unenforceable, I think you are saying it is advisory, in

20 which case --

21 QUESTION: Well, but it says instruct.

22 MS. UNDERWOOD: Instruct is a word that can have

23 many meanings and if it means advisory, then I think it

24 would not be objectionable, but we --

25 QUESTION: It doesn't mean advisory. I mean, we

40

1 really mean it. We instruct you, but you know, if you

2 don't do it, there is nothing we can do about it.

3 MS. UNDERWOOD: Well, if you can say that the

4 legislator was a lawbreaker, violated the law, did

5 something unlawful, if that's the meaning of instruct --

6 QUESTION: Well, you can say he didn't take the

7 instructions, if you consider that to be a violation of

8 the law.

9 MS. UNDERWOOD: That's a different point. In

10 Prince, this Court looked to instructions to sheriffs, for

11 which there was no enforcement, and treated those as

12 binding. I think the question would be what that

13 hypothetical statute, which we don't have before us,

14 means. This statute we know Missouri meant to make

15 enforceable. We know that because it created an

16 enforcement mechanism, and so the difficult question that

17 you put, which would require determining what that

18 hypothetical statute meant, isn't here.

19 QUESTION: Is it accurate to call it an

20 enforcement mechanism? I mean, usually you enforce laws

21 by punishing people who break them. You send them to

22 jail. You do this or that. Here, the punishment is

23 simply telling people that you ignored the instruction.

24 Is that a punishment? I mean, leaving aside the, you

25 know, the pejorative manner in which the announcement is

41

1 made, if all you are doing is telling the people he chose

2 not to take on instructions.

3 MS. UNDERWOOD: Well, it's still the case that

4 it's, that it's an enforcement, one, because of the

5 pejorative language, which you have asked me to set aside,

6 but is present here. Two, because it is a decision by the

7 state legislature to focus the attention of the voters and

8 judge candidates on a single issue. And three, because it

9 is done in the voting booth and not in a public forum

10 where there is an opportunity to respond and to debate, so

11 it is an effort, it has the intended purpose and the

12 effect of disadvantaging a class of candidates, and that's

13 something this court said in term limits that the state

14 cannot use its elections clause authority to do. It

15 interferes with, as Justice Kennedy said, the direct

16 relationship between the national government and its

17 citizens.

18 There is no other example of an effort to

19 enforce an instruction with ballot labels in the case of a

20 federal senator or representative, except for the -- the

21 only one we have been able to find is the Arizona recall

22 pledge. That went off the ballot in 1973. There is still

23 a request to pledge, but it is no longer enforced by a

24 ballot instruction. And of course, it doesn't involve a

25 position on an issue. It doesn't involve a commitment to

42

1 take a position on a particular issue in the legislature.

2 QUESTION: No. But it involves a commission to

3 simply give up your job if the legislature recalls it.

4 MS. UNDERWOOD: It does. It's unique, as far as

5 we have been able to tell, in the, in the history and the

6 laws of this country, and it has never come before the

7 Court.

8 QUESTION: Mr. McAdams' point was that the First

9 Amendment arguments would apply equally to any state

10 election. So then if, if that's important, the

11 distinction you just drew, then I guess we are left with a

12 time, place and manner clause.

13 MS. UNDERWOOD: Yes, I think the principal, the

14 principal concern of the United States in this case is

15 that the state has a limited authority under the elections

16 clause and has improperly or either abused, misused its

17 authority or exceeded its authority.

18 QUESTION: Then how would you draw the word

19 manner? How would you explicate that? Which I take it

20 what you would want to do is eliminate this, but then not

21 reach the First Amendment question. You see?

22 MS. UNDERWOOD: It's not necessary to reach the

23 First Amendment --

24 QUESTION: Yes. But how do you explicate the

25 word manner?

43

1 MS. UNDERWOOD: The word manner, in the context

2 of the time, place and manner clause, means the mechanics,

3 the procedures of an election, neutral, evenhanded

4 regulations that enable the orderly election process to

5 occur, and what it particularly doesn't mean is putting a

6 thumb on the scale to influence the result.

7 QUESTION: Of course that refers to the

8 legislature, too, and not to this, not to this process,

9 the state legislature?

10 MS. UNDERWOOD: Yes. There is a question as you

11 have noted, about whether the time, place and manner

12 authority that the Constitution gives to the state

13 legislatures goes to any entity that the state gives

14 legislative authority to, or whether it actually only goes

15 to legislatures. We haven't -- in either case, even

16 assuming that it isn't restricted to the legislature as

17 such, it's our position that the power has simply been

18 exceeded, doesn't go, doesn't authorize the making of

19 nonneutral regulations that are designed to and have the

20 effect of attempting to influence the outcome.

21 With respect to other labels that do sometimes

22 appear on ballots, party labels and incumbency

23 designations, those have, those are all understood as

24 helping the voter identify the candidates. They are

25 objective, identifying information. They don't, for one

44

1 thing, involve a state official in assessing whether the

2 label should apply or not, as this regulation does here.

3 The secretary of state, subject to a state review process,

4 has to determine whether the label applies, and the label

5 is a judgmental label, not simply an identifying piece of

6 information.

7 The other thing about parties, of course, is

8 that party labels recognize the role political parties

9 play in the electoral process, provide candidates with a

10 reasonable level of community support, provide voters with

11 a means of exercising their First Amendment right of

12 political association, and the party label therefore

13 reflects that the party is the mechanism that put the

14 candidate on, on the ballot. It's quite different from a

15 label that is designed to influence the election and also

16 to constrain the behavior of the legislator having been

17 elected as this, as this provision does.

18 I think, if there are no further questions --

19 QUESTION: May I ask, if you have a minute, the

20 Court of Appeals gave us a whole bunch of reasons to come

21 out the way they did. Which one do you think is the

22 strongest?

23 MS. UNDERWOOD: The elections clause. The Court

24 of Appeals actually didn't -- well, the elections clause

25 has been in the case from the beginning because it is the

45

1 provision that the state has used to defend its authority

2 against all other attack. That is the argument, when the

3 argument is made that this is a qualification, or this is

4 an improper this or that, the state has said it's a proper

5 exercise of its authority under the elections clause, and

6 we say it is not. I think that's the simplest way to

7 decide this case, even though there are a number of other

8 issues that could also be reached.

9 QUESTION: Thank you, Ms. Underwood. Mr.

10 McAdams, you have five minutes remaining.

11 REBUTTAL ARGUMENT OF JAMES R. McADAMS

12 ON BEHALF OF PETITIONER

13 MR. McADAMS: Thank you, Your Honor. It

14 Tashjian, this Court said, any claim that we enhance the

15 ability of the citizenry to make wise decisions by

16 restricting the flow of information to them must be viewed

17 with some skepticism. This is precisely respondent's

18 claim, and it should be viewed with considerable

19 skepticism. As to the elections clause claim made by the

20 respondent, the Court said in Smiley that the time, place

21 and manner language are comprehensive words that embrace

22 authority to provide a complete code for congressional

23 elections. And in Tashjian they said state control over

24 the election process for state officers is co-extensive

25 with that grant to the states under the elections clause.

46

1 It is a broad power.

2 The alleged damage done to congressional

3 candidates because of the ballot label is something that

4 needs to be analyzed under a punishment analysis. There

5 is no evidence in the record that suggests this language

6 is punishing, and that was respondent's burden. Under the

7 qualifications clause, it was Respondent's burden to show

8 that the sole basis for putting this on was to add a

9 qualification indirectly. The language of the amendment

10 itself indicates that it is not the sole basis to add a

11 qualification indirectly. It is the sole purpose to one,

12 inform the voters, and two, to amend the Constitution.

13 It was argued that the severance issue was

14 waived. This is not so. This is contained in the

15 response to the, or pardon me, to the reply to the cert.

16 In point four, we say specifically because we use the word

17 or in the first question, we preserve the severance

18 question and we have already dealt with that in the reply

19 suggestions.

20 If there are no further questions?

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

22 submitted.

23 (Whereupon, at 12:00 noon, the case in the

24 above-entitled matter was submitted.)

25

47