U. S. Term Limits, Inc. v. Thornton – Oral Argument – November 29, 1994

Media for U. S. Term Limits, Inc. v. Thornton

Audio Transcription for Opinion Announcement – May 22, 1995 in U. S. Term Limits, Inc. v. Thornton

del

William H. Rehnquist:

We’ll hear argument now in Number 93-1456, U.S. Term Limits, Inc., v. Ray Thornton, 93-1828, Consolidated, Winston Bryant v. Bobbie E. Hill.

General Bryant.

J. Winston Bryant:

Thank you, Mr. Chief Justice and may it please the Court:

The State of Arkansas is before this Court today defending its constitutional authority to encourage rotation in office of its congressional delegation.

Amendment 73, which would have accomplished that objective was ruled unconstitutional by the Arkansas supreme court.

The court held that Amendment 73 amounted to a qualification and, further, that the State of Arkansas could not add additional qualifications to those listed in Article I, sections 2 and 3.

We disagree with that ruling.

Amendment 73 is not a qualification, but even if it is a qualification, the State of Arkansas has the authority to add additional qualifications to those listed in Article I, sections 2 and 3.

Our Founding Fathers envisioned a Congress of citizen legislators who would serve awhile, return and xx with the people, and not stay in office indefinitely, and during the 18th and 19th Centuries, voluntary rotation was a common practice.

During the 20th Century, we have seen a dramatic increase in the number of long-term, entrenched incumbents.

Entrenched incumbency makes for an electoral system that is less fair, less competitive, and less representative.

Amendment 73 was adopted in 1992 by the people of Arkansas overwhelmingly, by a 60 percent to 40 percen majority.

Twenty-two States now have some form of term limit proposals or ballot access initiatives on their books.

Thirty-seven States have term limits that limit the terms of the executive branch officials of those States or the legislative branch officials of those States.

Anthony M. Kennedy:

Is the theory that by this rotation the policy that the legislators adopt will be different one system than in the other system?

That is to say, are there policy implications electing an incumbent as opposed to a nonincumbent?

J. Winston Bryant:

Yes, Your Honor, that is correct.

That issue is not before this Court, however, but the people of Arkansas, by Amendment 73, have decided to encourage rotation in office to make the election process more fair and more competitive.

Anthony M. Kennedy:

Well, but you’re explaining the rationale for the limitation, and I’m asking if part of that rationale is that rotated representatives will vote differently than incumbents would have, would shape public policy in a different way.

J. Winston Bryant:

Your Honor, they would be more beholden to the people under the theory of Amendment 73 because they would not be career politicians.

They would be more responsive to the people.

Anthony M. Kennedy:

So there would be a difference in the kind and the shape and the policies of the legislation that they would enact.

J. Winston Bryant:

There could be, Your Honor.

Anthony M. Kennedy:

Well, is that the justification for the rule, or isn’t it?

J. Winston Bryant:

Yes, Your Honor.

Amendment 73 provides for strict term limits for certain State elected officials in Arkansas.

It denies ballot access to multiterm congressional incumbents, but does allow those incumbents, after serving a maximum number of terms allowed by Amendment 73, to run as a write-in candidate.

David H. Souter:

But once they’re denied the ballot access, they’re denied it for life, is that right?

J. Winston Bryant:

That is correct, Your Honor.

David H. Souter:

Doesn’t the permanency of the denial carry a suggestion of what we would normally refer to as a qualification?

J. Winston Bryant:

No, Your Honor.

The definition of a ballot access proposal like Amendment 73 as opposed to a qualification is put forth in our brief, and that is, a qualification is something that absolutely prohibits a candidate from serving even if elected.

David H. Souter:

Well, I realize that’s your position, but in any case, your position would take us beyond Storer, wouldn’t it?

J. Winston Bryant:

No, Your Honor.

David H. Souter:

Well, in Storer… maybe my recollection is wrong.

In Storer, I thought there wasn’t a lifetime disqualification.

J. Winston Bryant:

That is correct, Your Honor.

David H. Souter:

I mean, if you… you know, had been party-affiliated within a certain period of time, you couldn’t be there as an independent, but the next election was coming, and that was a new day.

Isn’t that right, in Storer?

J. Winston Bryant:

That is correct, Your Honor.

David H. Souter:

So Storer didn’t have that implication of permanence which is in fact a feature of the Arkansas system.

J. Winston Bryant:

That is correct, Your Honor, but the State’s position is that Amendment 73 is consistent with Storer, the difference being that under Amendment 73 a candidate can actually serve a couple of terms in the Senate, or three terms in the House, so it does not absolutely prohibit a candidate from serving.

After that candidate reaches a maximum number of terms, then obviously that candidate is denied access to the ballot.

Sandra Day O’Connor:

General–

Ruth Bader Ginsburg:

–precedent, any case where a group based on past experience, past lawful experience, has been categorically hobbled in this way.

It’s not simply a handicap in the race if the only access they have is as a write-in, is it?

J. Winston Bryant:

Your Honor, to answer your question, the State does not take the position that Amendment 73 is an absolute handicap, because we’re dealing with multiterm incumbents who would have great name recognition, resources available to them that ordinary challenges would not have.

Ruth Bader Ginsburg:

I’m trying to contrast a mere handicap from a hobbling, and it seems to me this falls in the latter category.

J. Winston Bryant:

No, Your Honor.

The State’s position is that Amendment 73 will allow a candidate to serve even if elected, and under that scenario, under that definition that we put forth to this Court, would amount to only a ballot access regulation.

Sandra Day O’Connor:

Well, General Bryant, a good many States have passed so-called term limit measures that just disable a candidate from appearing on the ballot for a short period of time, isn’t that correct?

J. Winston Bryant:

That is correct, Your Honor.

Sandra Day O’Connor:

And Arkansas has a very different provision in that it extends for the rest of that particular candidate’s life.

J. Winston Bryant:

That is correct, Your Honor.

Sandra Day O’Connor:

Do you think that there may well be, even if you are correct that it is seen as a ballot access measure, that there may be First Amendment issues at stake here, the associational rights, for instance, of the political party that might want to have the candidate on the ballot as its candidate?

J. Winston Bryant:

Yes, Your Honor, there are–

Sandra Day O’Connor:

And are those issues issues that were resolved in the courts below?

J. Winston Bryant:

–No, Your Honor.

Sandra Day O’Connor:

So that would be open on remand, I assume, even if we agreed with you it were a ballot access measure?

J. Winston Bryant:

That is correct, Your Honor.

J. Winston Bryant:

That is correct.

William H. Rehnquist:

Those… you say the First Amendment issue were presented to the supreme court of Arkansas but not decided by it.

J. Winston Bryant:

That is correct, Your Honor.

Amendment 73 is also consistent with this Court’s jurisprudence.

In Burdick v. Takushi, a case from Hawaii, in that particular case, the State of Hawaii had adopted a statutory scheme that allowed write-in voting to be completely banned.

In this–

Sandra Day O’Connor:

Yes, and what about a State like Hawaii that has no write-in voting allowed at all?

J. Winston Bryant:

–Your Honor–

Sandra Day O’Connor:

Would it become a qualification then?

J. Winston Bryant:

–It would become a qualification at that point, if there is no write-in provision, but even assuming–

Antonin Scalia:

How is that?

I’m not sure how that makes it a qualification.

It seems to me the test for whether it’s a qualification is whether, when a person has been supposedly elected and reports to Congress, Congress can sit in judgment and say, this person is not qualified.

Now, if that should happen, what disqualification would there be?

J. Winston Bryant:

–Your Honor, under that scenario, Congress can consider the… obviously can consider under Article I, section 5, the qualifications, and under the position of the State in this particular case, a pure write-in, a pure term limits proposal–

Antonin Scalia:

Let’s assume in Hawaii the person gets on the ballot by mistake, or in Arkansas.

An incumbent who has no right to be on the ballot is put on the ballot and gets elected, all right.

J. Winston Bryant:

–If–

Antonin Scalia:

Reports to Congress.

Now, could Congress sit in judgment and exclude that person?

J. Winston Bryant:

–Yes, Your Honor.

Under Article I, section 5, if the person were not properly qualified, yes.

Antonin Scalia:

Well then it is a qualification in Arkansas.

Do you say that if somebody gets on the ballot by mistake in Arkansas and is elected, Congress can exclude that person?

J. Winston Bryant:

Your Honor, I was considering it under a pure term limits proposal.

Antonin Scalia:

I’m not talking about–

J. Winston Bryant:

Under Amendment–

Antonin Scalia:

–I’m talking about, Hawaii exclusion from the ballot system.

It’s not a term limit proposal, it’s just exclusion from the ballot, but entirely.

No write-in allowed, either, and the Arkansas system.

J. Winston Bryant:

–And under the Arkansas system, Your Honor, the Congress could not consider the Amendment 73 proposal as a qualification under that scenario.

Antonin Scalia:

It seems to me they couldn’t with respect to Hawaii, either.

Hawaii doesn’t say you shall not serve, it just says you shall not get on the ballot, and people will not be able to vote for you.

J. Winston Bryant:

That is correct.

Antonin Scalia:

And if that happens, you’re not unqualified.

J. Winston Bryant:

That is correct, Your Honor.

Antonin Scalia:

Could I ask you… you say that this is not a qualification.

Is it a time, place or manner restriction?

J. Winston Bryant:

Yes, it is, Your Honor.

Antonin Scalia:

It is.

Is there such a thing as something that is neither the one nor the other, it is neither a qualification nor a time, place and manner restriction?

J. Winston Bryant:

Neither a qualifica… no, Your Honor.

Antonin Scalia:

It’s either one or the other.

J. Winston Bryant:

It’s either one–

Antonin Scalia:

Everything falls into one or the other category.

J. Winston Bryant:

–According to our–

John Paul Stevens:

Which category would a law providing that you only count half the votes of a candidate fall?

Would that be a qualification or a time, place and manner?

[Laughter]

Or maybe something different?

J. Winston Bryant:

–That would probably fall under time, place, and manner, Your Honor, but–

John Paul Stevens:

Time, place, and manner?

Which of the three?

Is it time, place, or manner?

[Laughter]

J. Winston Bryant:

–It would be the manner.

John Paul Stevens:

The manner, okay.

J. Winston Bryant:

But, Your Honor, that would have to undergo First and Fourteenth Amendment scrutiny if that proposal were adopted by the State.

Antonin Scalia:

If it’s time, place, and manner, this means, of course, that the current Congress, composed mainly of incumbents, can simply revise the Arkansas law right?

J. Winston Bryant:

That is correct, Your Honor.

Antonin Scalia:

And indeed, the current Congress could revise those laws that don’t provide for term limitations or don’t provide for exclusion from ballot access to incumbents.

J. Winston Bryant:

Yes, Your Honor,–

Antonin Scalia:

So in effect you could have the Federal legislature doing something that discourages… that discourages incumbency.

J. Winston Bryant:

–Yes, Your Honor, under Article 1, section 4.

William H. Rehnquist:

What could the Federal legislature do?

J. Winston Bryant:

The Federal legislature, Your Honor, is given authority under Article I, section 4, to override anything the States do in the area.

William H. Rehnquist:

Yes, but are you suggesting that it could do… the Federal legislature could do anything more than simply negate a State regulation?

J. Winston Bryant:

Yes, Your Honor.

William H. Rehnquist:

And what would be the authority for that?

J. Winston Bryant:

Article I, section 4 would give Congress that authority, Your Honor.

William H. Rehnquist:

To do more than just negate a State regulation?

J. Winston Bryant:

Yes, Your Honor.

William H. Rehnquist:

And what part of the language is it of that section that–

J. Winston Bryant:

The term 4, has a very broad, expansive meaning, and during the ratification debates the States were concerned about the fact that under Article I, section 4, Congress was being given the authority which the States concluded would allow Congress to override anything the States did in the area.

The Article I, section 4 clause was sold on the basis that Congress needed the authority or power to preserve its… the Union, if necessary, and so Article I, section 4 has a… is very broad in its meaning, and would authorize Congress to adopt legislation in the area.

William H. Rehnquist:

–So that even though, perhaps, a State hasn’t acted, Congress could, by law, make regulations governing the time, place, and manner?

J. Winston Bryant:

Yes, Your Honor, and in fact Congress could override amendment 73 if Congress so desired.

William H. Rehnquist:

But what if Arkansas had made no provision for term limits at all, could Congress step in and make a provision for term limits?

J. Winston Bryant:

Yes, Your Honor, under Article I, section 4, Congress could do that.

Ruth Bader Ginsburg:

You’ve mentioned that there were qualifications that don’t come from the Constitution itself.

You started out your argument by saying the States could add qualifications.

Now you’ve told us that there are only two categories, there’s qualifications, and there’s time, place, and manner, but you see two categories of qualifications, I gather, because you’ve told us that some come from the Constitution, and then there are others the States can add.

So what’s the category of qualifications, extra-Constitution, that the State can add that are not time, place, and manner regulations?

J. Winston Bryant:

Your Honor, the qualifications that the States could add would all be time, place, and manner under Article I, section 4.

Also the State could, if there are some enumerated… if Article I, section 4 does not cover some particular areas, Amendment 10 would allow the States to act in that particular area, but the States have always added additional qualifications.

In fact, when the Constitution was adopted by the States, the State of Virginia had a property qualification as well as a residency requirement.

James Madison–

Anthony M. Kennedy:

If you call those qualifications, can the State override them?

J. Winston Bryant:

–No, Your Honor.

Anthony M. Kennedy:

So the–

J. Winston Bryant:

I’m sorry–

Anthony M. Kennedy:

–Pardon me, can the Congress override them?

J. Winston Bryant:

–Yes, Your Honor, the Congress could under Article–

Anthony M. Kennedy:

So anything the State adds as either a qualification or a time, place, and manner can be overridden by the Congress?

J. Winston Bryant:

–Your Honor, the specific provisions that can be overridden by Congress are the Article I, section 4 grants of authority to the States by–

Anthony M. Kennedy:

Well, are there some qualifications that the State can add, and I… this was suggested by Justice Ginsburg’s question, that cannot be overridden by the Congress?

J. Winston Bryant:

–None comes to mind, Your Honor.

The States–

John Paul Stevens:

General Bryant–

–Well, why–

–the Congress can’t impose any qualifications, can it?

J. Winston Bryant:

–Yes, Your Honor.

John Paul Stevens:

Oh.

J. Winston Bryant:

Congress can impose additional qualifications.

John Paul Stevens:

What’s the source for that?

Where do you find the authority for that?

J. Winston Bryant:

Article 1, section 4.

John Paul Stevens:

That doesn’t talk about qualifications.

That talks about time, place, and manner.

J. Winston Bryant:

Yes, Your Honor, but under our definition the Congress can add additional qualifications based on Article 1, section 4 authority, and Congress has done so since the very first Congress.

In the very first Congress–

John Paul Stevens:

You think Congress could pass a statute saying every Senator must be at least 50 years old?

J. Winston Bryant:

–Congress could pass–

John Paul Stevens:

What’s your answer?

J. Winston Bryant:

–Yes.

Yes, Your Honor, they could pass such a statute sub… of course, it would be subject to First and Fifth Amendment.

Antonin Scalia:

Now, where do you get that?

You don’t get that from the Tenth Amendment.

Where does that come from?

J. Winston Bryant:

That comes under Article I, section 4 authority, Your Honor.

Antonin Scalia:

But that’s time, place, and manner, not qualifications.

I thought you make a distinction between the two.

You make no distinction between time, place, and manner and qualifications?

J. Winston Bryant:

Yes, we make a distinction, Your Honor.

The… the narrow–

Antonin Scalia:

Well, you must be… 50 has nothing to do with time, place, and manner of elections at all.

It has to do purely with qualifications.

J. Winston Bryant:

–The narrow issue before this Court is whether or not Amendment 73 amounts to a ballot access regulation.

If it amounts to a qualification, the States as well as Congress can add additional qualifications to those listed in Article–

Antonin Scalia:

Well, I can understand why you argue the States can on the basis of the Tenth Amendment.

I don’t know where the Congress gets the power to do that.

J. Winston Bryant:

–And that is under Article 1, section 4, Your Honor.

Antonin Scalia:

But that doesn’t relate to qualifications, that relates to time, place, and manner.

Is there no qualification that is not a time, place, and manner provision?

Every qualification is a time, place, and manner provision?

J. Winston Bryant:

Yes, Your Honor, that would be consistent with the State’s position.

Antonin Scalia:

Every qualification–

J. Winston Bryant:

Under that–

Antonin Scalia:

–is a time, place, and manner provision.

J. Winston Bryant:

–Under that theory we advance.

David H. Souter:

How is the age qualification a time, place, and manner?

How would a qualification that every elected Senator must have a college degree, how is that a time, place, and manner qualification or condition?

J. Winston Bryant:

Oh, Your Honor, that is a time, place, and manner because if the State of Arkansas or Congress did that, that would be… that is constitutional, according to our position, under Article I, section 4.

However, it would have to pass constitutional muster, and that is the test.

Under the ballot access–

David H. Souter:

That is a manner condition, as it were?

J. Winston Bryant:

–Yes, Your Honor.

That could be considered a manner condition under Article I, section 4.

Sandra Day O’Connor:

Well, General Bryant, this is a very remarkable proposition–

–and… does your argument depend in any way on this most unusual interpretation?

Sandra Day O’Connor:

[Laughter]

J. Winston Bryant:

Your Honor, the State’s argument is that Amendment 73 amounts to a ballot access regulation.

That is the narrow issue that this Court can reach.

If Amendment 73 does in fact amount to a qualification as determined by this Court, then it’s the State’s position that the State of Arkansas can add additional qualifications under Article I, section 4 to those enumerated in the Constitution.

Anthony M. Kennedy:

But what we’re interested to know is, does it follow from that that the Congress could not override that qualification?

Where does the Constitution give the Congress authority to override qualifications?

J. Winston Bryant:

Because, Your Honor, that qualification would be adopted under Article I, section 4.

Anthony M. Kennedy:

Well, but then we’re right back where we’re–

J. Winston Bryant:

Yes.

Anthony M. Kennedy:

–Let’s assume that we tell you that under the Constitution we think there are two things, two semantic, two juridical categories, one qualifications and the other time, place, and manner.

Now, if you say, and if you assume that we hold that term limit is a qualification, we are exploring whether or not the Congress could override that, and you say, oh, well, they can go under section 4, but we’ve just stipulated this is a qualification, and that doesn’t apply to section 4.

J. Winston Bryant:

Under that–

Anthony M. Kennedy:

And the gravamen of the argument is it would be very strange to allow Congress to override a time, place, and manner regulation, but not to override a greater restriction, which is a qualification, and you’re not answering that argument because you keep resorting to Article I, section 4, but that’s a very odd interpretation.

J. Winston Bryant:

–Your Honor, under that scenario, then the States would have the authority under Amendment 10.

Congress would not have the authority under your scenario to add additional qualifications.

David H. Souter:

On that assumption, may we put the question directly that Justice Kennedy alluded to?

Isn’t there something very odd in a scheme in which the… we’ll say the comparatively less important conditions that fall under time, place, and manner can be overridden by Congress, and yet the presumably more fundamental conditions known as qualifications would be left entirely to the States?

If they couldn’t trust the States on time, place, and manner, wouldn’t it be odd if they trusted the States on qualifications?

J. Winston Bryant:

That is correct, Your Honor.

Under the jurisprudence of this Court, ballot access jurisprudence, the States can erect barriers or limitations to limit the field of candidates, and so long as that passes constitutional muster, then the States have the authority to do that.

Antonin Scalia:

Or you might have responded that perhaps they were willing to trust the Federal Congress with respect to the relatively minor matters of time, place, and manner–

[Laughter]

–but not willing to trust the Federal Congress with respect to the greater matter of qualifications.

That’s a possibility, isn’t it?

J. Winston Bryant:

Yes, Your Honor.

[Laughter]

William H. Rehnquist:

Mr. Kester, we’ll hear from you.

John G. Kester:

Thank you, Mr. Chief Justice, and may it please the Court:

I’d like to start out, I think, by introducing–

Sandra Day O’Connor:

Mr. Kester, do you adopt the same argument as your predecessor here about everything is either a qualification or a time, place, and manner?

John G. Kester:

–No, not precisely, Justice O’Connor.

I think that the question that several members of the Court have been putting really illuminates the constitutional structure that we’re talking about here, and the argument that is being made by the opponents of Amendment 73, first of all skipping over and pretending that it’s a legal incapacity when it’s nothing of the kind… it’s a less restrictive alternative that the State has adopted, but skipping over that and accepting the pretense that this is a limitation on service in the Congress, you’re then put to the task of fitting together some provisions of the Constitution.

What does the Constitution say with respect to the power of Congress to adopt, say, a term limits provision and apply it to the States?

I think the answer to that has to begin by looking at the sources of power of Congress and of the States, and they are very different.

Congress has power only insofar as it is granted in the Constitution, and the only grant of power to Congress to legislate in this area has to come from Article I, section 4, or, I quickly amend, the Necessary and Proper Clause, which is also part of Article I, section 4, and nowadays section 5 of the Fifteenth Amendment, which has received a very, very broad interpretation, and I don’t think that we need to address that at this time, but we recognize that that’s very broad.

The sources of power of the State are very, very different, and particularly when you have legislation, a constitutional amendment that the people of Arkansas adopted and imposed on themselves.

They’re not reaching out… this is not a State trying to regulate interstate commerce in other States.

This is a law which, if anything, hurts the people of Arkansas.

Sandra Day O’Connor:

Well, Mr. Kester, let me ask you this, do you this Congress has the power under Article I, section 4, to adopt precisely the kind of law that Arkansas has applicable to all States?

John G. Kester:

No.

My answer would be no, it does not, for the following reason.

I would say, in the first instance, if you take the words of Article I, section 4, “make or alter”, and say that those are of equal force, and I’m not sure that you have to do that at all, I would say Congress has the power to knock out any State law with respect to elections that Congress doesn’t like.

It’s very, very clear that that’s why Article I, section 4 was put in the Constitution.

But once you have the law passed, once you have the authority of Congress to do that exercise, that’s not the end of the exercise, that’s just the beginning.

This Court pointed that out in Williams v. Rhodes.

There may be power there, but then, has the power been properly exercised?

First of all, it would obviously be subject to attack under the Fifth… the equal protection aspects of the Fifth Amendment, just like a Fourteenth Amendment case, which is what this really is.

Secondly, you would have to test it under the Tenth Amendment, because this Court recognized in cases like New York v. United States, Gregory and Ashcroft, that there is a certain core of State authority that really is sacrosanct.

And finally–

Antonin Scalia:

More specifically, gives you the power to override that State authority if it exists under 10.

Section 4 says specifically that Congress can make or alter such regulations.

John G. Kester:

–Right, but we’re talking now, as I understood it, Justice Scalia, we’re talking about Congress just acting in the first instance, and I’m saying the reason Congress could not do this just by itself in the first instance, say we’re going to pass a statute imposing term limits, is furthermore that you have another provision which we haven’t talked about yet this morning, and that’s Article I, section 2, Clause 1, and that says the people shall choose their representatives in the House of Representatives.

If Congress did that, Congress would be acting diametrically opposed to what the people have done.

Now, this is all hypothetical.

Antonin Scalia:

Let me ask you about the Tenth Amendment, before we get–

John G. Kester:

Surely.

Antonin Scalia:

–too far away from that.

John G. Kester:

Surely.

Antonin Scalia:

If that is the source of the State’s power that you assert would justify this piece of legislation, then I assume that the State could also say that the State’s electors shall not vote for a President who, in addition to having the qualifications set forth in Article II of the Constitution, has certain other qualifications.

Could the State do that?

John G. Kester:

Now we’re talking about a different provision of the Constitution.

That’s Article II.

Antonin Scalia:

Yes, we are–

John G. Kester:

Right.

Antonin Scalia:

–but the Tenth Amendment hasn’t changed.

It’s still there.

John G. Kester:

Right, but I–

Antonin Scalia:

If they can add conditions to whom its citizens may vote for for their representatives, why may it not add conditions to the person for whom its electors may vote for as President?

John G. Kester:

–Justice Scalia, I would say that the Tenth Amendment applies differently in different situations, and you have to–

Antonin Scalia:

Oh, that’s very convenient, but I don’t know why.

[Laughter]

John G. Kester:

–Because the question would be, in your case of the presidential electors, it’s like the case of Williams v. Rhodes.

Ohio came in there and said, we have very broad authority on how we select presidential electors, don’t tell us how we do it, we’ll decide that, and this Court said, wait a second, there are other provisions of the Constitution, and the Fourteenth Amendment is generally sufficient.

The important thing is that the State’s authority draws on several sources, not just Article I, section 4.

It draws on the Tenth Amendment.

The States started out with the authority to do this.

They didn’t have to be granted it at all.

They started it out.

It was reserved.

They also were the people of the State, and remember, it’s the people who acted here.

This was–

Ruth Bader Ginsburg:

But the test of whatever the State does, did I understand you to say that it could be overridden by Congress, but Congress has to come second?

John G. Kester:

–The Congress–

Ruth Bader Ginsburg:

Whether the State is acting under the Tenth Amendment, or whatever source.

John G. Kester:

–I believe, Justice Ginsburg, that the proper understanding of section 4 is that was the check that the Framers intended to place on the States.

They were very worried about what kind of election laws the States would pass.

Ruth Bader Ginsburg:

Well then, time, place, and manner is not a limitation, as you see it.

It includes what one might think of as time, place, and manner, plus qualifications, including age 60 is the limit–

John G. Kester:

Any of those things which would be Fourteenth Amendment issues, yes.

Manner was a word that essentially was unlimited, and that was why Article I, section 4 was so controversial.

Ruth Bader Ginsburg:

–So we should forget all about the way we use time, place, and manner in the context of the First Amendment where it’s a limited category of things that don’t go to the core of free expression, but here you say it covers everything.

John G. Kester:

Here we’re construing specific language in the Constitution, and it’s different, and the power given to Congress was broad enough to do whatever was necessary to keep the States from passing inappropriate legislation.

David H. Souter:

But I don’t see why it isn’t also broad enough to authorize Congress to act in the first instance.

John G. Kester:

It is… Justice Souter, in the first instance, it may well be, but then Congress is checked in a number of ways, and in some ways that the State isn’t, particularly if you look–

David H. Souter:

You mean by other provisions of the–

John G. Kester:

–By other provisions.

David H. Souter:

–Yes.

John G. Kester:

And in particular, Article I, section 2, Clause 1, which here is a source of the State’s power, an independent source of the State’s power, but when Congress acts, it becomes a restriction, if anything, on Congress’ power, because there you have Congress going in and saying to the people of the State, you can’t do what you want.

Antonin Scalia:

Well, if that is a restriction, it just negates… it just negates section 4.

John G. Kester:

To that… to that–

Antonin Scalia:

Whatever the people–

John G. Kester:

–If–

Antonin Scalia:

–do is okay, so… right?

John G. Kester:

–No.

No, not at all, sir.

Antonin Scalia:

You can’t possibly read it that broadly, or it negates section 4.

John G. Kester:

No.

In that particular case it might, yes.

Antonin Scalia:

So long as the people of a State vote for this time, place, and manner restriction, Congress can’t do anything about it.

John G. Kester:

We’re… no, no, no, no.

I’m sorry, I–

Antonin Scalia:

That’s what I thought you were saying.

John G. Kester:

–I did not express myself clearly, then.

Antonin Scalia:

Or I didn’t understand clearly, I guess.

John G. Kester:

Well, whatever–

[Laughter]

Congress has power, I would urge upon the Court, and I think that this is very, very clear when you look at the history of Article I, section 4.

Congress has power granted there, controversial power… a lot of them didn’t like it… to go in and say, we don’t like your State election law.

They don’t even have to say it’s unconstitutional.

All they have to say is, we–

John Paul Stevens:

May I ask this question to be sure I understand your theory?

I understand you’re saying, if it’s a time, place, and manner regulation adopted by the State, the Congress can modify it.

Now, supposing it’s a qualification.

There are two ways we can look at the Arkansas law, and assume they take it to be a qualification rather than a ballot access matter, could Congress amend that?

John G. Kester:

–Well, yes, I think they could, because otherwise you’re driven, and this is where some of the argument–

John Paul Stevens:

But then you’re adopting the Attorney General’s position that a manner includes a qualification.

John G. Kester:

–What I’m saying is, yes, manner is the broad word… that’s the hook–

John Paul Stevens:

Which includes qualifications?

John G. Kester:

–Surely.

It has to, because otherwise as I believe Justice–

John Paul Stevens:

Well, it doesn’t have to.

One can say qualifications are things like being over 50, and manner things like where you hold your elections and the like.

One doesn’t have to say that, but I can understand that.

But that’s your view of the word manner.

John G. Kester:

–Otherwise Article IV, the power of Congress in Article IV would make no sense, because then you’d be in a position, and this is where the Solicitor General’s argument leaves you, is saying that Congress would have the power to override minor State laws but not huge–

Antonin Scalia:

It would make no sense unless there is a prohibition upon additional qualifications, in which case it would make perfect sense.

John G. Kester:

–And… and–

Antonin Scalia:

It only would make no sense under your theory of the Constitution.

[Laughter]

John G. Kester:

–And… but I submit that my theory of the Constitution, Justice Scalia, has historical validity and makes sense when you–

William H. Rehnquist:

Under your theory, Mr. Kester, could Congress say that no person shall be a Senator who is not over the age of 25 and have that the controlling qualification?

John G. Kester:

–I… if Congress or the States passed a law that was absolutely flat-out contrary to those provisions in Article I, if they’ve made it contrary to it, then that would be unconstitutional just on the face of it.

William H. Rehnquist:

How about saying no person over 50 under 50, saying… you know, Congress obviously was… the Framers were concerned about age, 35, and you know, we’re also concerned about age.

We think it should be 50.

Could that override the 35-year-old provision?

John G. Kester:

I think there you’ve got legislation going right at the heart of provisions that were put in the Constitution, and it could be that those are minimum qualifications, or it could be that they could be enhanced with respect to age or district residence.

William H. Rehnquist:

So what’s your answer, under your theory?

John G. Kester:

My answer, sir, is that it would never stand up under the Fifth Amendment, under Article I, section 2.

That–

William H. Rehnquist:

But it could stand up under the framework we’re talking about now, Article I?

John G. Kester:

–Possibly in the first instance, but it hardly matters because it would so clearly violate those other provisions.

John Paul Stevens:

Why would it violate those other provisions?

Perfectly reasonable to change the age from 35 to 40, 45.

Why would that violate the Fifth Amendment?

John G. Kester:

Well, I think–

John Paul Stevens:

I just don’t understand that.

John G. Kester:

–Well–

William H. Rehnquist:

We’ve held age is not a suspect classification.

John G. Kester:

–I think in that case it would be, and in looking at it as a suspect–

John Paul Stevens:

Well, then the constitutional provision is invalid, the 35-year thing is irrational under your approach.

I don’t understand why 40 is any more irrational than 35.

John G. Kester:

–Well, it would have to be judged.

It would have to be judged under the Equal Protection part of the Fifth Amendment.

John Paul Stevens:

And not under the Qualifications Clause?

John G. Kester:

The Qualifications Clauses are there… if a law is enacted that this Court believes contradicts those qualifications, that would be unconstitutional.

John Paul Stevens:

No, it’s just merely what I thought was your basic position, that the State has every right to impose additional qualifications if it wants to.

John G. Kester:

Yes.

John Paul Stevens:

And I don’t know why 40 years is any different than being an incumbent.

John G. Kester:

Oh, but my position is not that the State can come in and impose any qualification it wants to, it’s that the State–

John Paul Stevens:

Well, any reasonable qualification.

John G. Kester:

–Well, any qualification that doesn’t violate the other restrictions on the States, the Fourteenth Amendment.

I mean, this–

John Paul Stevens:

I just have to say, I don’t see why the 40-year thing would violate the Fourteenth or Fifth Amendment.

John G. Kester:

–I defer to your judgment on that, but the analysis, Justice Stevens, would be an analysis–

John Paul Stevens:

Well, if the analysis takes you to the conclusion it does not violate the Fourteenth, then you’d have to face up to the question–

John G. Kester:

–Yes.

John Paul Stevens:

–whether they can have an additional qualification, which is what I thought this case was all about, but you seem to say they cannot have certain additional qualifications.

John G. Kester:

No, I said… I said if they have one that’s absolutely contradictory, but if it’s not–

John Paul Stevens:

Well, why is 40 contradictory to 35?

It just supplements it–

John G. Kester:

–I’ll defer to Your Honor on that.

Ruth Bader Ginsburg:

–Mr. Kester, let’s take an age… you can’t run after the age of 70, instead of upping the age from 35, a mandatory retirement.

Wouldn’t that get you out of your Equal Protection problem?

John G. Kester:

Well, it would be very much like Gregory and Ashcroft, wouldn’t it, because that was upheld, a mandatory retirement was held not to violate the Fourteenth Amendment.

Basically–

Ruth Bader Ginsburg:

So if that was the qualification, nobody can run in this State after the age of 70, the State could do that, and that would be a qualification–

John G. Kester:

–The States have done things like that for 200 years.

That’s our point.

The States at the beginning said, not only do you have to be a resident of the State, you have to be a resident of the district.

Now, that’s a supplementation, that’s a qualification.

Ruth Bader Ginsburg:

–There are States that have said you can’t run after the age of so-and-so for Congress?

John G. Kester:

Mm-hmm, and–

Ruth Bader Ginsburg:

You said States have done that for years, put–

John G. Kester:

–Oh, not… not that, but States have added qualifications since the very beginning, and incidentally, they called them time, place, and manner regulations.

William H. Rehnquist:

–Thank you, Mr. Kester.

John G. Kester:

Thank you, Mr. Chief Justice.

William H. Rehnquist:

Mr. Cohen, we’ll hear from you.

Louis R. Cohen:

Thank you, Mr. Chief Justice, may it please the Court:

My theory of the Constitution, which I think is also Madison’s and Hamilton’s theory of the Constitution on this point, is that the Constitution deals comprehensively with the filling of the office of the Congress that it created, that it prescribes fixed qualifications that may not be supplemented by either Congress or the States, and that it gives both the States and Congress the power to set time, place, and manner regulations so as to assure fair and orderly elections, but that that is an essentially procedural power, leaving the people at each election to choose whom they please to govern them.

Antonin Scalia:

Why didn’t they put it differently, then, Mr. Cohen?

The briefs here have been referring to this as a qualifications clause.

It’s really not a qualifications clause, it’s a disqualifications clause.

They could have said, every person shall be eligible to serve in the House of Representatives who shall attain to the age of 25 years, shall have been 7 years a citizen of the United States, and shall not when elected… and shall be when elected an inhabitant of that State in which he shall be chosen, a very easy way to say it.

Louis R. Cohen:

Well, of course–

Antonin Scalia:

But they took the circuitous route of saying, no person shall be a representative who shall not have attained the age of 25 years, been 7… in other words, you can’t, unless you have these conditions, but that isn’t to say that just because you meet these conditions you are eligible.

It does not say that, and John Randolph–

Louis R. Cohen:

–I agree that the constitutional–

Antonin Scalia:

–pointed this out in the first congressional debate on the matter.

Louis R. Cohen:

–I agree that the constitutional text doesn’t resolve the issue because it phrases it that way.

One reason why it may phrase it that way is because there are other disqualifications in the Constitution itself, and there was contemplation, of course, of further possible disqualifications, but when Madison and Hamilton came to explain what the Constitution did, when the House Committee on Elections in 1807 studied the meaning of that clause, they concluded that the intention was to make those qualifications exclusive.

William H. Rehnquist:

Well, you say the House Committee on Elections, Mr. Cohen.

Was the House committee’s view accepted by the full House?

Louis R. Cohen:

The full House didn’t adopt the report, but I think it did accept the House committee’s view.

It voted to seat Congressman McCreary, and it voted to seat Congressman McCreary after a point in the debate when it becomes clear that the dissenter, Mr. Randolph of Virginia, recognized that he was about to lose, and diverted the House debate to a more neutral resolution.

William H. Rehnquist:

Well, that’s very speculative, isn’t it?

I mean, couldn’t the full House’s result have been also because some people thought that he was in fact a resident of Baltimore, that he complied with the State regulation?

Louis R. Cohen:

We don’t know–

William H. Rehnquist:

We simply–

Louis R. Cohen:

–of course, why anyone voted.

We do know that the understanding at the time, the scholarly understanding of what had been resolved in the McCreary episode was that the–

William H. Rehnquist:

–Well, what… how does the fact that the scholarly understanding… does that elevate what actually happened into something different?

[Laughter]

Louis R. Cohen:

–No, of course not.

Of course not this Court reviewed this history in the Powell case starting with the fact that on August 10, 1787, the question that was being voted on on the floor of the convention was whether to give Congress the power to add a property qualification or to add other qualifications.

This Court said on that day the Court faced and rejected the possibility that the legislature… and it was clearly talking about legislation, and not merely about a judging power… the legislature would have the power to usurp the right of the people to return whom they thought proper.

William H. Rehnquist:

Well, now you’re not talking about the McCreary case.

Louis R. Cohen:

Well, I’m… I’m leading up to it.

The Court then went on–

William H. Rehnquist:

We’ve only got 40 minutes.

Louis R. Cohen:

–Okay.

[Laughter]

I will… let me move on.

But the Court reviewed Hamilton’s statement in the Federalist Number 60 that the qualifications were unalterable by the legislature, Madison’s statement to the same effect in Number 52, where he is clearly talking about State power to add qualifications.

William H. Rehnquist:

More clearly than Hamilton, isn’t he?

Louis R. Cohen:

Well, I think Hamilton, when he referred to the legislature, was referring to Congress, but I think Madison is talking about the States.

David H. Souter:

What was the… do you remember the phrase in 52?

I can’t remember the text that you’re referring to.

You said it clearly refers to the States.

Louis R. Cohen:

Well–

Antonin Scalia:

If it does, he was making a mistake, wasn’t he, because he also was excluding the States’ power to change the qualifications of electors–

Louis R. Cohen:

–No.

Antonin Scalia:

–which it obviously could.

Louis R. Cohen:

No.

What he was doing in 52 was explaining how the Constitution had fixed both the qualifications for voters and the qualifications for the elected.

It fixed the qualifications for voters by delegating that to the States subject to the most numerous branch compromise requirement.

Antonin Scalia:

That’s not much of a fixing.

The fact is, the States could change it so long as they were willing to change it for their most numerous branch of the legislature.

Louis R. Cohen:

Madison uses the word 52–

Antonin Scalia:

Why say it’s a mistake?

Louis R. Cohen:

–in relation to… in relation to the State constitutional provisions on this point, and he says that… in effect that these are fixed because the States and the people of the States won’t allow changes in State provisions for voting for the most numerous branch of the State legislature, so we’ve dealt with that problem.

I would like to move on to the State’s principal contention, which is, we didn’t do that.

We just barred these people whom–

Ruth Bader Ginsburg:

Before you do that–

Louis R. Cohen:

–we’d like to disqualify–

Ruth Bader Ginsburg:

–Mr. Cohen, may I ask whether in your view we owe any kind of precedential respect to the interpretation of history in Powell v. McCormack?

We’re not dealing here with a new discovery by Professor Warren, we’re dealing with what has already gone over.

Mr. Kester has told us that… that perhaps some of the statements there, some of the conclusions weren’t quite right, that there was room for other interpretations.

Louis R. Cohen:

–I think that Powell is a very persuasive opinion, and the Court should find it persuasive.

I also think there is substantial additional evidence on our side of this point that wasn’t reviewed or reached in Powell.

I think–

David H. Souter:

Did Powell at this point purport to go beyond the decision whether Congress or a House of Congress could act?

It seems to me that it did not–

Louis R. Cohen:

–It seems to me–

David H. Souter:

–and it seems to me that that’s the limitation… with the possible exception of your reference to 52, which I’m not sure of, that seems to me the problem with some of the, or at least the limitation on the cites to the debate text and say, Federalist 60.

It’s clearly referring, by legislature, to the national legislature, and it seems to me that you’re supporting legislative history, as it were, doesn’t take you beyond the limitation on Congress.

Louis R. Cohen:

–The… it seems to me that Powell rests on the proposition that the qualifications were fixed in the Constitution and could not be supplemented legislatively.

William H. Rehnquist:

Well, I think you’re mistaken on that, Mr. Cohen.

The holding of Powell clearly has to be that a single House of Congress cannot add to the qualifications otherwise legitimately set.

Louis R. Cohen:

Yes, but as this Court explained in the Judge Nixon case, the basis for that holding was not an aspect of the judging power as such, it was the fact that the… or that Article I, section 2, fixed qualifications that could be applied.

There are two questions here.

Louis R. Cohen:

One is, vis-a-vis Congress, are we talking only about a judging power, or are we also talking about the power to legislate additional qualifications?

It seems to me every point in argument that was made in Powell goes to the power to legislate, not to the power to judge, although the ultimate question was only whether Congress could judge.

William H. Rehnquist:

And so the ultimate holding, wasn’t it?

Louis R. Cohen:

The ultimate holding, I agree, but the logical foundation was that, and it then seems to me that the extension to the States is straightforward.

In the first place, some of the examples that the Court used in Powell were State additions of qualifications, or attempts by States to add qualifications.

Antonin Scalia:

But it can’t possibly be straightforward, because Congress would need to have been given the power to make the alteration.

That power would have had to be found within the Constitution.

With respect to the States, that is not true.

With respect to the States you have the main thing that’s relied on here, the Tenth Amendment.

There’s nothing in Powell about the Tenth Amendment, is there?

We didn’t even consider the Tenth Amendment.

Louis R. Cohen:

I agree that I need to go on to talk about those points.

I don’t think that the Tenth Amendment reserves–

Antonin Scalia:

We’re going to have you do that, but you’re trying to not have to do it by saying–

Louis R. Cohen:

–No–

Antonin Scalia:

–we’ve decided it–

Louis R. Cohen:

–No, no, no.

Antonin Scalia:

–already in Powell.

Louis R. Cohen:

No.

I’m only saying that I think Powell did dispose of additional qualifications.

I don’t think the… and I think that if you read the admittedly not clear and dispositive constitutional text as a preclusive list, there’s simply no logical reason to think that it is preclusive vis-a-vis Congress and not preclusive vis-a-vis the States.

But I think this is not a Tenth Amendment case, because the Constitution doesn’t leave the States or Congress the power to bar or to officially and materially prefer some qualified candidates over others.

Sandra Day O’Connor:

Well, Mr. Cohen, we have Storer, for example, which certainly prevented a candidate from appearing on a ballot at least for a period of time.

We did not treat that as a qualification, did we?

Louis R. Cohen:

That’s right.

Storer–

Sandra Day O’Connor:

And so in theory this provision may not be a qualification at all.

Louis R. Cohen:

–No.

The fact that Storer said that the States have power to regulate access to the ballot in order to provide for fair and orderly elections, or as in that case, in order to preserve the integrity of the various routes to the ballot so as to give people a choice, doesn’t mean that the States may impose ballot access limitations based on place of birth or civil profession or prior service in the State legislature or prior service in Congress, or being under the age of 70.

The Constitution–

Antonin Scalia:

Those things, if you do it on those bases it converts itself from a time, place, and manner restriction to a qualification?

Louis R. Cohen:

–Yes.

I think the–

Antonin Scalia:

If it’s a qualification, I assume that the House would sit in judgment of whether that qualification was met.

Louis R. Cohen:

–I do not think that either the States or Congress may add qualifications.

I’m happy to use the term qualification in the sense in which you suggested earlier, Justice Scalia, which is qualifications is something that–

Antonin Scalia:

You can’t serve if you don’t have it.

Louis R. Cohen:

–that says you can’t serve if you don’t have it.

Antonin Scalia:

And that’s not the case here.

Louis R. Cohen:

That is not the case here, but the State also may not keep off the ballot in order to disadvantage somebody who lacks a substantive personal characteristic because the Constitution leaves those questions to the voters every second year.

Antonin Scalia:

Well, maybe, but certainly not because the State is adding an additional qualification.

I mean, it may be bad, but not for the reason that it’s violating the presumably exclusive Qualifications Clause.

Louis R. Cohen:

I will accept that with this exception.

I think the Arkansas supreme court was justified in saying here this measure is impermissible for essentially the same reason.

That is to say, the lawmakers of Arkansas, the people, were told, and then they said in the measure that they adopted, that the measure limited the terms of public officials, and the Arkansas supreme court simply rejected the argument that something that did that, that tried to impose a qualification, if you will, could be saved on the argument that it just might not achieve its stated purpose because of a loophole, the write-in loophole that has no significant history of working.

David H. Souter:

May I just go back to Storer for a moment?

Could you just state for me the criteria, the standard on which you would have us distinguish the Storer disability, we’ll say, from this disability?

Louis R. Cohen:

Yes.

Storer involved a legitimate time, place, and manner regulation designed to produce a fair and orderly election with a manageable ballot so that the people of California could choose by saying people who want to run in a prim… to be in a party in connection with a particular election must run in that party’s primary and be the party’s candidate.

People who want to run as independents must leave a party early enough to assure the genuineness of their independence and the nonfracturing of the party.

David H. Souter:

Orderly elections.

It’s orderly elections that’s–

Louis R. Cohen:

It’s orderly elections.

Now, it’s quite different from… it’s… if I can use a metaphor, it’s like the difference between saying that someone must run in his assigned, qualifying heat in order to get into the finals of the 100-yard dash, and saying that somebody who won the medal last time must start 50 yards behind the others because we want to pass the medals around.

One involves procedural regulation that the Constitution authorizes the States to do, and the other involves a State substantive preference for one class of candidates over another that I think is not part of the entire scheme that is spelled out in some detail in the Constitution.

William H. Rehnquist:

–You justify sore-loser statutes on the basis that they are procedural.

Louis R. Cohen:

Yes, and there’s a good deal of, in addition to text, legislative history that supports this reading.

If you read, particularly the Federalist 59 and 60.

Now, petitioners aren’t very clear, to say the least, about whether the State’s supposed power here is… is a power granted by the Time, Place, and Manner Clause or by the Tenth Amendment.

I suggest the reason that they’re not very clear is that neither argument works.

Louis R. Cohen:

The Constitution explicitly gives Congress the superior power to make election regulations or to alter those of the States, but it plainly, in doing so, means to limit the power of both the States and Congress to procedural matters.

It seems to me that the argument that a State can impose ballot access restrictions under some power outside the Time, Place, and Manner Clause is answered in the clause itself, which contains the phrase, “make or alter”, and incidentally, the primary reason for that phrase was a fear that the States might not set up the machinery for congressional elections at all, and so the “make” part of the “make or alter” phrase is an important part of it.

The convention deliberately gave Congress the power to make or alter State regulations because Hamilton said an exclusive power of regulating elections for the national Government in the hands of the State legislatures would leave the Union entirely at their mercy.

That’s the Federalist Number 59.

Antonin Scalia:

Mr. Cohen, what is your view as to whether something can be neither the one nor the other, neither a qualification nor a time, place, and manner restriction?

Is there some–

Louis R. Cohen:

I don’t… if you mean by that something–

Antonin Scalia:

–Some restriction that is–

Louis R. Cohen:

–permissible–

Antonin Scalia:

–Something… no, not permissible.

Louis R. Cohen:

–Well–

Antonin Scalia:

Something that… whether it’s permissible or not, is there anything that does not fall within one or the other category?

I gathered from your answer to my earlier question that you thought that there wasn’t.

This might, indeed, be it.

Louis R. Cohen:

–No, I think–

Antonin Scalia:

You say it’s impermissible, but not because it is technically a qualification.

Louis R. Cohen:

–That’s right.

That’s right.

I think there can be–

Antonin Scalia:

But it’s also not a time, place, and manner.

Louis R. Cohen:

–That’s right.

That’s right.

Antonin Scalia:

So it is a third something-or-other, but an impermissible third–

Louis R. Cohen:

That’s right.

I think for a State to say, on the whole we don’t think people over 70 ought to continue to serve unless their constituents really want them, and so we’ll keep them off the ballot, but if they can win by a write-in that’s okay.

I think that is not a valid time, place, and manner regulation.

I also would not urge that anyone call it a qualification for the reason you point out, that it is merely keeping someone off the ballot.

I would then carve out an exception for that point for the–

John Paul Stevens:

–Are you abandoning the position of the Arkansas supreme court that it was a qualification?

Louis R. Cohen:

–I think what… I’m–

John Paul Stevens:

Yes or no.

Louis R. Cohen:

–I’m–

John Paul Stevens:

Because that was part of the rationale of their decision.

Louis R. Cohen:

–I am… I am reading… if that’s the premise as to what it says, my answer’s no.

As to what Arkansas said, my answer is yes, I disagree with that.

John Paul Stevens:

You’re conceding that this is not a qualification in this case?

Louis R. Cohen:

I am arguing that it was appropriate for the Arkansas supreme court to say is does–

John Paul Stevens:

I understand that, but are you conceding that it’s not a qualification?

Louis R. Cohen:

–I’m willing to… yes.

Yes.

John Paul Stevens:

It’s a rather major concession.

Anthony M. Kennedy:

That’s not, as I–

Antonin Scalia:

–It’s a very reasonable one, Mr. Cohen.

[Laughter]

Anthony M. Kennedy:

That’s not how I understood your brief.

Your first argument is the Constitution bars States and Congress from adding to the qualifications for service in Congress.

Louis R. Cohen:

I think that’s important, and I don’t think that I’ve made a significant concession.

We argue in the second section of the brief that whether something is a qualification is not technically what’s at issue here.

The Constitution bars adding qualifications.

It also bars doing essentially the same thing indirectly, and I think that is the essence of what the Arkansas supreme court held, that–

Anthony M. Kennedy:

Well, but you begin with the major premise that a qualification cannot be added.

Louis R. Cohen:

–Yes.

Anthony M. Kennedy:

And then you say… and then you say, and this is so like a qualification that it must be invalid.

Is that–

Louis R. Cohen:

Yes, but I also say… but I also say that even if it is not a qualification, it is something that the States have no power to do, because the States have, as Congress has, only the power that is granted to them under the Time, Place, and Manner Clause, and the Time, Place, and Manner Clause does not… and the Time, Place, and Manner Clause does not authorize States to draw this kind of substantive distinction in the course of setting procedures for elections.

Anthony M. Kennedy:

–I take it your position is, is that the State can require, or the State can be forbidden from requiring its officeholders to have the same qualifications as its electors?

Louis R. Cohen:

Yes.

I think it’s clear that the Constitution gave the States power to determine the qualifications of electors that it did not give to determine the qualifications of officeholders, of Federal officeholders.

Anthony M. Kennedy:

So that a State could bar a felon from voting but not for running for office?

Louis R. Cohen:

Yes, because one is a matter of the State’s business, and the other is not, not for running from office… not for running from Federal office.

Louis R. Cohen:

There was a period of time when I was qualified to be President of the United States, but as a resident of the District of Columbia I wasn’t qualified to vote for one.

Sandra Day O’Connor:

Mr. Cohen, what about a law that just prohibits ballot access for one election, for example?

Louis R. Cohen:

I think–

Sandra Day O’Connor:

Do you make exactly the same argument?

Do you make no distinction between such a law and the one here?

That is, a lifetime inability?

Louis R. Cohen:

–I make a distinction, but the distinction I would draw is that it seems to me the lifetime inability demonstrates the falsity of the suggestion that this has something to do with incumbents.

I think that a bar for a single election would run afoul of the same principle that I am asserting here, which is, again, that the Constitution gave that choice to the people every second year, and gave the States only a limited and fundamentally procedural role.

Mr. Bryant says that all the examples of–

Sandra Day O’Connor:

Well, I don’t know what kind of a line you end up with in examining Storer and knowing what is time, place, and manner regulation and what isn’t.

It’s difficult for me to draw a clear line from what you say.

Louis R. Cohen:

–Well, there may be some difficult cases in drawing lines.

In the speech area the Court had to wrestle with whether a sound limitation on a rock band was a time, place, and manner limitation or, as a applied to that band, a content limitation.

This is a clear case.

This is an easy case.

The Court has… the State has singled out people based on a personal characteristic, and if they can do this under the Time, Place, and Manner Clause, Congress could under the Time, Place, and Manner Clause, it seems to me, keep off the ballot for the Senate anybody who hasn’t served in the House, and so on.

The State has singled out for this burden people based on a substantive qualification that does not relate, a substantive characteristic that does not relate to the election process or their compliance with reasonable procedures established by the State under its power under the Time, Place, and Manner Clause.

Antonin Scalia:

Mr. Cohen, maybe you think this is a clear case.

Some aspects of it at least I find very close, where you have Thomas Jefferson and Joseph Story on opposite sides of the issue, for example, whether the States have any power to add qualifications.

That’s a close case in my mind.

Louis R. Cohen:

Story only… I mean, Jefferson only in one letter in 1814, but okay.

Antonin Scalia:

A letter he never retracted.

Story–

[Laughter]

In any case, just posit… posit that I think on that question at least it’s very hard and very close, and in situations like that I am inclined to credit the practice that has been engaged in from the time when the Constitution was written, and there have, indeed, been a considerable number of State additional qualifications, I guess the most common being that in order to run for office you have to be qualified as a voter, which brings in all sorts of qualifications.

You can’t be a felon, and so forth.

What is your response to that?

In addition to some property qualifications in Virginia, in the early days.

Louis R. Cohen:

I think actually, if you sort through the lengthy appendices attached to the petitioner’s briefs, there’s very little there.

The single, most telling episode is that in 1789 Pennsylvania calls a Constitutional Convention to eliminate a difference between its constitution and the Federal Constitution and conflicts, and repeals its term limits for service in Congress while keeping them for State officers.

Louis R. Cohen:

The only property qualification that I’m aware of is that Virginia had the word “freeholder”.

Other States that had property qualifications for State offices didn’t impose them on… for Federal officers.

Antonin Scalia:

District resident qualifications.

Louis R. Cohen:

District resident qualifications strike me as the kind of thing that somebody might… they certainly were imposed.

They’re the sort of thing that a State might fall into in making the arrangements.

Under the Time, Place and Manner Clause they are unconstitutional, as the Committee on Elections determined in 1807 in the McCreary case and as several courts have determined.

Antonin Scalia:

But there were quite a few of them, and they persist.

They’re still out there, aren’t they, these horrible things?

Louis R. Cohen:

It’s possible that not every State went back and read the annals to see the McCreary episode and immediately repealed its statute.

I think they are, and would be held, and have been held unconstitutional because the voters of a State can, if they choose, pick candidates who come from another district.

William H. Rehnquist:

By what authority?

You say they’ve been held unconstitutional.

Louis R. Cohen:

By several State and lower Federal courts.

William H. Rehnquist:

Recently, or–

Louis R. Cohen:

Actually, yes, I think most of the cases are fairly recent.

–The Constitution gave the Federal Government only delegated powers to govern people’s lives and activities, but it seems to me, again, that it dealt comprehensively with filling the offices that the Constitution itself created.

There’s an overall design to give We, the People, every 2 years the power to select who will represent them in Congress, subject only to fixed qualifications and reasonable, fundamentally procedural regulations that the State has given power to adopt subject to congressional supersession.

If now congressional term limits are not a fad but are considered national judgment, the way to impose them is in Article V.–

William H. Rehnquist:

–Thank you, Mr. Cohen.

Louis R. Cohen:

Thank you.

William H. Rehnquist:

General Days, we’ll hear from you.

Drew S. Days, III:

Thank you, Mr. Chief Justice, and may it please the Court:

I want to reinforce the extraordinary and anomalous nature of petitioner’s argument in terms of the power of Congress.

We think that a fair reading of Powell v. McCormack and the Nixon case are that Congress may not add to the textual qualifications set out in the Constitution with respect to service in Congress.

William H. Rehnquist:

You agree that was not the holding of the Powell case.

Drew S. Days, III:

I do, Mr. Chief Justice, but I also want to underscore the fact that this Court, after an exhaustive review of the preconstitutional… the constitutional convention, the ratification, and the post-ratification history, concluded that those requirements were fixed in the Constitution.

I think that’s the reading of Powell and Nixon together.

William H. Rehnquist:

That’s dicta, is it not?

Drew S. Days, III:

Yes, Mr. Chief Justice.

William H. Rehnquist:

And we don’t… we are not bound by dicta.

Drew S. Days, III:

That is correct, but I think that this case does not necessitate this Court’s reviewing the history that it found in Powell v. McCormack, and much of the evidence that’s been brought forward was addressed by this Court here.

William H. Rehnquist:

Well, how about the McCreary episode, where now it appeared apparently to the Powell court that the committee report had the same validity as another committee report which was adopted by the full… now it appears this report was not adopted by the House.

Doesn’t that cast some doubt on the historical abilities of the Powell court?

Drew S. Days, III:

Well, Mr. Chief Justice, that’s one piece, and I think my cocounsel is correct.

William H. Rehnquist:

Well, falsus in uno, falsus in omnibus.

[Laughter]

Drew S. Days, III:

Well, I… Mr. Chief Justice, I would be the last person to suggest that this Court was in error when it reviewed the history in Powell v. McCormack.

Antonin Scalia:

We’re all in big trouble if that maxim is going to be applied, I must say.

[Laughter]

Drew S. Days, III:

Let’s look at the argument that the petitioners have put forward.

They seem to rely principally upon the times, places, and manner provision, Article I, section 4, but we have to remember that the power there is one shared coextensively by Congress.

Where does that lead the petitioners with respect to their arguments?

If it is a qualification, then the States may add, and the Congress may add.

If that’s what they’re relying upon, this creates an interesting situation that I think Justice Scalia and Justice Souter were alluding to.

That is, if the States can set qualifications, then presumably, under Article I section 5, Congress can judge those qualifications not against the constitutional, textual qualifications, but the potentially myriad qualifications that States could set up along the lines of the ones that have been provided by Amendment 73.

If it is a manner, then the States may bar access to the ballot, but Congress also may bar access to the ballot, and it is not a power in Congress that has to await action by the States.

The term is 73 imposes.

But we would suggest that this is not a manner.

This is not times, places, and manner.

This is a qualification.

With due respect to my cocounsel, I think it’s unavoidable that this is a qualification.

Let me suggest why that is so.

First of all, the times, places, and manner requirement, as my cocounsel has set out, was designed to ensure the fairness and the efficiency and the accuracy of the legislative process, the electoral process.

Justice Ginsburg, you pointed out that in our First Amendment jurisprudence it is a procedural cast that the Court has given to the concept of time, place, and manner.

Ruth Bader Ginsburg:

And I believe listed the language from section 4.

Drew S. Days, III:

Yes.

I always wondered where that came from, and now, with further study, I understand that.

But how do we know that it’s a qualification as opposed to a manner?

Justice Souter, you asked that question.

I think Justice O’Connor also asked the question, and I think the answer lies in the fact that Storer v. Brown was focused on one election cycle.

Drew S. Days, III:

That is, the burdens that were imposed upon the would-be candidates in Storer v. Brown were based upon their failure during the election cycle to do the types of things that California law required.

Our view is that any burden placed on a candidate for Congress based upon conduct that has not occurred during the election cycle in question is a qualification.

Antonin Scalia:

If it’s a qualification, Congress has to be able to judge it.

Now, let’s assume that somebody gets elected without complying with the qualification.

Somehow his name gets on the Arkansas ballot accidentally, by a mistake or by some corrupt act, and he gets elected, and he appears before the House, and the committee is to judge his qualifications.

Can they exclude him?

Drew S. Days, III:

If Congress can rely only upon the textual qualifications, then they cannot exclude him.

Antonin Scalia:

No, no, no, no, no.

I mean, assuming that this is a qualification, and a valid qualification.

Drew S. Days, III:

Yes.

Antonin Scalia:

Assuming it’s a qualification, and a valid qualification, I don’t see how any congressional committee could possibly exclude him.

He’s entitled to serve.

He’s been elected.

Drew S. Days, III:

I agree with you, Justice, Souter–

Antonin Scalia:

He is not–

Drew S. Days, III:

–that there would be no–

Antonin Scalia:

–disabled from serving.

Drew S. Days, III:

–There would be no point of reference.

Congress, a House of Congress, could not, under Article I, section 5, do very much at all.

It certainly could try, but I agree with you that they would have no standard–

Antonin Scalia:

I suggest the reason is because it is not a qualification.

Arkansas has not said, this person may not serve.

It’s simply said, this person may not run for office and be listed on the ballot.

If he accidentally gets listed on the ballot, he may serve.

Drew S. Days, III:

–Justice Scalia, I–

Antonin Scalia:

That seems to me to say it’s not a qualification.

It’s something.

Maybe you can argue, as Mr. Cohen does, it has the same effect and therefore it’s bad–

Drew S. Days, III:

–Well, I do argue that–

Antonin Scalia:

–but you’re trying to argue that it is itself a qualification, and that just flies–

Drew S. Days, III:

–It doesn’t really make any difference, Justice Scalia–

Antonin Scalia:

–Okay.

Well, I’ll… fine.

Drew S. Days, III:

–Because… because–

Antonin Scalia:

That argument I can understand.

Drew S. Days, III:

–All right, fine.

[Laughter]

Whatever that unidentified flying object is that’s neither a qualification nor a time, place, and manner restriction is unconstitutional, because States cannot derive from the constitution the power to impose whatever we want to call it.

John Paul Stevens:

But if you make that argument, what do you do about the Tenth Amendment, with these–

Drew S. Days, III:

I would agree with my cocounsel–

John Paul Stevens:

–Why doesn’t the Tenth Amendment preserve the right of the States to use all the flying objects it wants?

[Laughter]

Drew S. Days, III:

–Justice Stevens, I think this Court has made very clear that the Tenth Amendment restates divisions of authority that are provided elsewhere in the Constitution, and the very idea that the Tenth Amendment could give the States the power somehow to fill in the gaps with respect to the Federal structure when we’re talking about provisions that do not grant Congress explicitly the power to address them, or deny to the States explicit power to deal with them, that somehow the Tenth Amendment provides that power.

I think if anything the Tenth Amendment is reinforced by the times, places, and manner provision.

That might be viewed as something that the Tenth Amendment reinforces, or vice versa, but I don’t see how the Tenth Amendment could come into place under these circumstances.

It is truly an anomalous reading of the Tenth Amendment and this Court’s jurisprudence.

I wanted to touch upon–

Stephen G. Breyer:

Before you leave that–

Drew S. Days, III:

–Yes, Justice Breyer.

Stephen G. Breyer:

–could I go back to what I think is Justice O’Connor’s question, which is, I take that your basic position is that no additional qualifications can be provided by States.

Drew S. Days, III:

That is correct.

Stephen G. Breyer:

All right.

It says they shall choose whoever they want, the Constitution, subject to certain listed disqualifications.

Drew S. Days, III:

That is correct.

Stephen G. Breyer:

Birth would be no good, property would be no good, being… service in the legislature would be no good, term limits would be no good, and being a pre… and being a member of a political party such as being chosen by the Democrats or Republicans would be no good.

Drew S. Days, III:

That’s correct.

Stephen G. Breyer:

Right.

All right.

But then in Storer, I take it it’s okay to, through this back door, insist on one of the qualifications, namely, being chosen by the party.

Drew S. Days, III:

Yes.

Stephen G. Breyer:

But why, then, isn’t it okay to insist on this other one, namely the term limits one.

Drew S. Days, III:

Well, as I indicated, Justice Breyer, I think–

Stephen G. Breyer:

That… I mean you… I just want to get a very clear–

Drew S. Days, III:

–Well, there’s a temporal quality here.

The requirement with respect to being a member of the party, or if you wanted to run as an independent, not being a member of a party, is related to the integrity of the electoral process, and it focuses on that election cycle.

The people who were disqualified in Storer can, in the next election cycle, prepare themselves to qualify according to the rules of California.

Under Amendment 73, once a Member of Congress has served three terms in the House of Representatives or two terms in the Senate, there is nothing that that person can do to conform his or her behavior.

Sandra Day O’Connor:

–Well, would your answer be different, then, in a State which has just adopted a one-time interruption of the ballot access, as some have?

Drew S. Days, III:

It would not be different–

Sandra Day O’Connor:

I didn’t think you were relying on that distinction.

Drew S. Days, III:

–I’m not.

You asked about the lifetime disqualification.

I don’t think it makes any difference whether it’s for a few years, or a lifetime disqualification.

It still–

Sandra Day O’Connor:

That’s what you were just arguing in response to Justice Scalia.

Drew S. Days, III:

–I didn’t understand myself to be responding in that fashion.

I–

David H. Souter:

Don’t you also, or wouldn’t you also in that case accept the point that Mr. Cohen made, that there was a justification in Storer based on a demand for orderly election procedure, and that compliments the point that you’ve also made about the significance of the permanence of the disqualification in this case?

Drew S. Days, III:

–Yes, exactly.

Exactly so.

Ruth Bader Ginsburg:

I take it you did not mean to concede that a State could say you have to be a Republican, or you have to be a Democrat, that you could be an independent–

Drew S. Days, III:

Well, that–

Ruth Bader Ginsburg:

–you have to be independent early enough to make it persuasive.

Drew S. Days, III:

–That’s right.

I mean, the requirements, what obviously you want to file under those circumstances, are First and Fourteenth Amendment criteria, so I was not suggesting that they would fly under those circumstances.

I just wanted to address a couple of other points that were raised during the argument, and that is that Justice Scalia, you talked about the disqualification clause.

This Court in Powell canvassed the history of that particular formulation and locution, and I think what the Court concluded was, it was done by the Committee of Style, and the Committee of Style had no authority to change the substance, and indeed, during that period it was quite often the case that alternative formulations were used that had no substantive significance.

Antonin Scalia:

Did people who voted for this Constitution know that?

Drew S. Days, III:

I’m sure some of them did.

Antonin Scalia:

I mean–

Drew S. Days, III:

They were a very learned bunch.

[Laughter]

Antonin Scalia:

–I don’t care what the committee said and what the committee changed.

I mean, it was the Constitution as written that was promulgated to the people, and they adopted it, reading it as it was written.

I don’t think they knew what happened in the Committee of Style.

Drew S. Days, III:

That’s certainly–

Antonin Scalia:

Or, you know, I’m not sure that we do.

I mean, we’re taking James Madison’s word for it all, I guess.

[Laughter]

Drew S. Days, III:

–Well, he’s a fairly credible source–

Antonin Scalia:

We could do worse, couldn’t we?

Drew S. Days, III:

–Mr. Justice Scalia.

[Laughter]

We could do worse, I think, Justice Souter, was your point.

Chief Justice Rehnquist, you asked about residency requirements, and Justice Scalia, you asked about various limitations.

There have been some recent decisions, one in 1968, Exon v. xx in the District of Nebraska, where residency requirements were struck down.

This was also the case in Chavez v. Evans in 1968 in New Mexico, where the courts concluded that States did not have the power to impose those types of restrictions.

Mr. Chief Justice, and the other members of the Court, Amendment 73 is unconstitutional.

It is not a qualification in the sense that if it is a qualification it violates the Constitution, and it does not fit into the time, place, or manner powers granted to States under the Constitution.

It seems to me that if what Arkansas is done here can be done not only by other States but by Congress, we have closed the door that Madison had in mind that would be open to merit of every description with respect to service in the United States Congress.

We urge this Court to affirm the judgment below.

Thank you very much.

William H. Rehnquist:

Thank you, General Days.

Mr. Bryant, you have 7 minutes remaining… General Bryant.

J. Winston Bryant:

Thank you.

John Paul Stevens:

General Bryant, before you start, how many terms did Senator McLellan serve?

J. Winston Bryant:

The Honorable Senator McLellan served at least five terms, and was probably into his sixth term.

John Paul Stevens:

Thank you.

J. Winston Bryant:

Two points, Your Honor.

First is the Respondents… Mr. Cohen has conceded that Amendment 73 does not amount to a qualification.

J. Winston Bryant:

Under that scenario, it is the State’s position, as I originally stated, that Amendment 73 is a ballot access regulation clearly permissible under Article I, section 4 of the Constitution, and the Arkansas court held that Amendment 73 was, in fact, a qualification.

Under that scenario, we request the Court… this Court to reverse the Arkansas court and remand–

Stephen G. Breyer:

But if it were a qualification, then would you lose?

J. Winston Bryant:

–No, Your Honor.

Stephen G. Breyer:

But why, if we’re thinking on qualification, I take it if the States can pass qualification such as the one at issue, they also could pass qualifications setting requirements of birth, or property, or previous service in the State legislature, or add on to the list almost indefinitely, and why should we think that the Constitution, particularly with Hamilton and Madison, intended to give the States the power to create that kind of Congress?

J. Winston Bryant:

Your Honor, under your scenario, Article… the States can add additional qualifications.

That is our position.

Any qualifications added, of course, would be subject to First and Fourteenth Amendment scrutiny, so any scenario that the State came up with that violated the First and Fourteenth Amendment would, in fact, not pass constitutional muster.

The Tenth Amendment gives the States the authority to adopt additional qualifications, and as has already been pointed out here, the States, all the States in this Union have a number of qualifications on their books.

Arkansas requires a candidate for Congress to be a registered voter.

A registered voter cannot be a felon or a mental incompetent.

Arkansas… the Arkansas constitution prohibits a Senator who is appointed from running for reelection, so Arkansas has a number of laws on its books, both statutory and constitutional, that amount to qualifications under the Respondent’s theory, and if qualifications–

Stephen G. Breyer:

But my question actually was why would Hamilton or Madison, who, after all, were writing before the Fourteenth Amendment was passed, think that it was possible that this Constitution would permit qualifications for the Congress based upon birth or property, and why would we today think that a State could pass a rule saying to be in Congress you have to be a previous member of the State legislature, for example?

J. Winston Bryant:

–Your Honor, our position is that Madison and Hamilton did not preclude the State from adding additional qualifications under the Tenth Amendment.

Stephen G. Breyer:

So therefore Hamilton and Madison, when they wrote the Federalists and said to the people, don’t worry about creating a Government of birth or property, that they were wrong in that?

J. Winston Bryant:

Your Honor, no, Your Honor, because under the State’s position any qualification that went to the point you suggested would be unconstitutional under the First and Fourteenth Amendments.

Stephen G. Breyer:

This was before–

J. Winston Bryant:

Yes–

Antonin Scalia:

–I guess that Madison and Hamilton and the people they were writing for weren’t worried about their State legislatures.

They felt that their State legislatures were responsive to the people.

They were worried about whether this new animal that was being created would be responsive to the people, and they weren’t about to give it vast powers to impose qualifications that their own people didn’t like.

That’s the only explanation for the fact that in all of this discussion there’s no… in the debates there’s no categorical mention about this issue about the States adding qualifications.

They weren’t worried about the States.

The States were the people as far as they were concerned.

Isn’t that the response to why–

J. Winston Bryant:

–Yes, Your–

Antonin Scalia:

–Madison and Hamilton–

J. Winston Bryant:

–Yes.

Yes, Your Honor, that is correct.

[Laughter]

Anthony M. Kennedy:

–Are you aware of any case in which we have said that a State may impose a burden or restriction by reason of the fact that someone has previously exercised a Federal right or privilege?

J. Winston Bryant:

I’m not sure I follow the question, Your Honor.

Anthony M. Kennedy:

Are you aware of any case in which we have said that a State may impose a burden or restriction on a person by reason of his or her having exercised a Federal right or privilege?

J. Winston Bryant:

If I understand your question, Your Honor, yes, I think the Storer case fit that, I think the Burdick case fit that, and the test in those cases, those cases stood for the proposition that a State can’t add additional qualifications or barriers–

Ruth Bader Ginsburg:

What was the addition… what was the Federal right or privilege exercised in Storer, which was someone who had signed up as a member of a party and didn’t quit early enough?

J. Winston Bryant:

–Your Honor, in Storer, the Federal right or privilege would have been the candidate attempting to run for Congress as an independent candidate, but was precluded from doing so by California law, and in that particular instance, the State had erected a barrier, but by the same token under the First and Fourteenth Amendment analysis, the State… that barrier passed constitutional muster, and we submit that Amendment 73 falls in that category and is clearly authorized–

Ruth Bader Ginsburg:

It’s the most temporal of limitations, though.

It’s kind of like you have to be living in a State a certain amount of time before you can get a divorce.

It was… it’s very transient.

J. Winston Bryant:

–I’m… if I understand your question correctly, those prohibitions were temporary in that the candidate could run subsequently, but by the same token, Amendment 73 allows a candidate to serve for a certain number of terms before Amendment 73 comes into effect.

William H. Rehnquist:

Thank you, General Bryant.

J. Winston Bryant:

Thank you.

William H. Rehnquist:

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.