Supreme Court appears skeptical of ‘scarlet letter’ ballot labels

Tuesday, November 7, 2000

The Supreme Court yesterday appeared ready to do further damage to
efforts to impose term limits on candidates for federal office.

The justices seemed poised during oral arguments to strike down
provisions of the Missouri Constitution that instruct the state’s congressional
delegation to work toward a constitutional amendment imposing term limits on
members of Congress. Any candidate who doesn’t do so would be labeled on the
next ballot as having defied the voters’ instructions.

The so-called “scarlet letter” provisions were enacted as state
constitutional amendments in 1996 after the U.S. Supreme Court rejected a more
direct effort by Arkansas to impose term limits on its congressional
delegation. In that decision, U.S. Term Limits v.
, the justices said a federal constitutional amendment
would be needed to add qualifications such as term limits on federal

The Missouri provisions at issue in the
argued yesterday, Cook v. Gralike
were struck down last year by the 8th U.S. Circuit Court of Appeals on a
variety of grounds, including the First Amendment. Candidate Donald Gralike
challenged the provisions as a form of government-compelled speech that
violated his free-speech rights.

James McAdams, chief counsel for litigation in the Missouri attorney
general’s office, offered a spirited defense of the Missouri amendments as
“non-binding instructions” that provide “valuable information” to voters in the
same way that a ballot lists a candidate’s party affiliation.

But several justices were skeptical. Justice David Souter sternly said
the Missouri scheme “goes beyond information,” amounting to “in effect a
judgment by the state that particular candidates have done something wrong.”
Justice Stephen Breyer said the state was “biasing the election” by treating
candidates in a way that is not evenhanded.

When McAdams argued that the ballot label was merely informative and
not punitive, Justice Anthony Kennedy said, “it would be very difficult to
accept” that it did not disadvantage candidates who refused to go along with
the state’s expressed preference.

Justice Sandra Day O’Connor asked hypothetically whether a state could
attach similar labels to candidates who refused to state a preferred view on
“any other hot-button issue” such as abortion or school prayer. When McAdams
replied yes, O’Connor was dubious and said, “That certainly would change the
election process.”

McAdams made only brief reference to the extensive history of ballot
instructions that were common in the early days of the republic, noting that
the Bill of Rights was approved in large part by legislators who had been
instructed to do so by voters. But it was clear that the justices were not

Jonathan Franklin, who argued on behalf of candidate Gralike, said the
ballot labels would have a “chilling effect” on the speech of candidates like
his client and “undermine a free and fair election.”

The Clinton administration also weighed in against the Missouri
“scarlet letter” laws. Deputy Solicitor General Barbara Underwood said the laws
“purpose and effect are to disadvantage a candidate… and interfere with
the relationship between the national government and its citizens.”

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