Could a 1996 Idaho ballot initiative require the Secretary of State to print 'DISREGARDED VOTERS' INSTRUCTIONS ON TERM LIMITS' next to the names of legislators and members of Congress who failed to support a federal term-limits amendment?

Plain-English summary

Donna Weaver filed an initiative on March 4, 1996 that would have done two things to nudge Idaho's congressional delegation and state legislators toward supporting a federal term-limits constitutional amendment. First, it would direct members of Congress to "use all of his or her delegated powers to pass a congressional term limits amendment" (three terms for House members, two for Senators). If a member failed to take certain specified actions (for example, voting in favor of a proposed amendment when it came before a committee), the Secretary of State would print "DISREGARDED VOTERS' INSTRUCTIONS ON TERM LIMITS" next to that member's name on the next election ballot. Second, non-incumbent congressional and state legislative candidates could sign a "Term Limits Pledge"; candidates who refused to sign would have "DECLINED TO PLEDGE TO SUPPORT TERM LIMITS" printed next to their names.

Deputy AG Thomas F. Gratton, writing for AG Alan G. Lance, concluded the initiative would likely be declared unconstitutional. Three lines of argument:

First, requiring the state to print pejorative legends next to candidates' names puts the state in the role of endorsing some candidates and penalizing others based on their political views. Brown v. Hartlage, 456 U.S. 45 (1982) and Mills v. Alabama, 384 U.S. 214 (1966) say "it is simply not the function of government to 'select which issues are worth discussing or debating' in the course of a political campaign." Bachrach v. Secretary of the Commonwealth, 415 N.E.2d 832 (Mass. 1981) struck down a Massachusetts law requiring the term "unenrolled" rather than "independent" on the ballot for non-affiliated candidates, holding that "the prohibition would be unlawful on much the same basis as a statute which might undertake to forbid political candidates in their campaigning to discuss a given subject." Gould v. Grubb, 536 P.2d 1337 (Cal. 1975) struck down "incumbent first" ballot listing as a procedural advantage that taints the electoral process.

Second, the initiative violates the principle of "government speech" limits. Keller v. State Bar of California, 226 Cal. Rptr. 448, 462 (Cal. Ct. App. 1986) acknowledged that government has legitimate interests in informing, educating, and persuading, and may add its voice to the marketplace of ideas, but said "it may not, in the guise of governmental speech, trammel the free speech rights of its citizens." West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943) is the foundational case: "[N]o official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." When government uses its monopoly over the ballot form to disfavor candidates with particular views, it crosses the Barnette line.

Third, the initiative is misleading. The phrase "DISREGARDED VOTERS' INSTRUCTIONS ON TERM LIMITS" assumes voters know what the instruction is and that the instruction is current; voters viewing the legend at an election years after the initiative passed would not necessarily know which way the legend cuts. The opinion gives examples: a member who voted against a proposed amendment in committee because he supported a more stringent version, or a member who was sick or absent for a key vote, would carry the "DISREGARDED" legend even though they had not actually disregarded anything.

The opinion noted historical precedent for ballot legends in Idaho (a 1909 statute permitting "Pledged to vote for party choice for U.S. Senator" legends predating the Seventeenth Amendment), but observed that nearly all the Equal Protection and First Amendment cases applying to such practices were decided after 1909 and would now control.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What was the constitutional theory against ballot legends?

Three overlapping theories. The First Amendment theory: government cannot use a forum (here, the ballot) to favor or disfavor speech based on content (Police Department of Chicago v. Mosley, 408 U.S. 92 (1972)). The Equal Protection theory: candidates have a right to "equal treatment in the voting process" (San Antonio Ind. School Dist. v. Rodriguez, 411 U.S. 1, 34 n.74 (1973)), and singling out some for adverse legends impairs that right. The right-to-vote theory in Idaho's own Constitution (Article 1, sections 2, 9, and 19): voters' choices should not be tilted by state-imposed legends that undercut some candidates relative to others.

Why are the universities-foundation and government-speech lines relevant?

Because the modern doctrine acknowledges that government can speak — it can run public-information campaigns, issue press releases, take positions in the marketplace of ideas. What it cannot do is use its monopoly over the ballot, which is "the climactic moment of choice" for voters (Rosen v. Brown), to tilt the playing field. Keller v. State Bar of California captured the line: government can add its voice but cannot "trammel the free speech rights of its citizens" through compelled or pejorative messaging at the ballot itself.

What was the practical voter-confusion problem?

The legend "DISREGARDED VOTERS' INSTRUCTIONS ON TERM LIMITS" assumes voters reading the ballot in 1998 or 2000 know that "voters' instructions" means a yes-vote on a 1996 initiative supporting term limits. But by then, voter sentiment may have shifted. And even within the framework of the initiative, the legend's accuracy depended on interpreting whether a particular legislator's vote, abstention, or absence counted as "disregarding" the instructions, a judgment the Secretary of State would have to make in many close cases. The opinion gave examples where legislators who substantively supported term limits could nonetheless end up with the legend.

Is there any historical basis for ballot legends in Idaho?

The opinion's footnote 1 acknowledges that before the Seventeenth Amendment (1913) put U.S. Senate selection in voters' hands, Idaho law (1909) allowed candidates for state legislature to sign a pledge that they would vote for the U.S. Senate candidate winning the special primary; the legend "Pledged to vote for party choice for U.S. Senator" appeared next to those who signed. The legal context, however, was very different: state legislators were the actual electors of senators, the legend was self-imposed (signing was voluntary), and nearly all the constitutional law constraining ballot legends developed after 1909.

Did Simpson v. Cenarrusa eventually settle the question?

The 1997 certificates discussed Simpson v. Cenarrusa as a then-pending Idaho Supreme Court challenge to the 1996 ballot legend initiative. The decision in Simpson would have been the most authoritative answer for Idaho law. Researchers should consult subsequent case law to see how Simpson came out and whether the analysis here was confirmed or modified.

Background and statutory framework

Idaho's certificate-of-review process under Idaho Code § 34-1809 lets the AG flag legal problems with proposed initiatives before they collect signatures. The certificates are advisory, but they shape the legal landscape because they often signal to the courts how the state's chief legal officer reads the constitutional posture of a measure.

This certificate sat at the intersection of two big political and legal currents. The political current was the post-Thornton (U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)) movement to use state ballot mechanisms to keep pressure on Congress for term limits, since Thornton had blocked direct state-imposed congressional term limits. The legal current was the long line of First Amendment and Equal Protection cases shaping what states can do with the ballot form: Mosley (content neutrality), Anderson v. Celebrezze (the link between candidate restrictions and voter rights), Brown v. Hartlage (limits on government regulation of campaign speech), Bachrach (Massachusetts ballot label case), and Gould v. Grubb (incumbent-first listing).

Citations

• U.S. Const. amends. I, XIV
• Idaho Const. art. 1, §§ 2, 9, 19
• Idaho Code § 34-1809
• Brown v. Hartlage, 456 U.S. 45 (1982); Mills v. Alabama, 384 U.S. 214 (1966)
• Anderson v. Celebrezze, 460 U.S. 780 (1983)
• Police Department of Chicago v. Mosley, 408 U.S. 92 (1972)
• West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943); Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977)
• Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992)
• Bachrach v. Secretary of the Commonwealth, 415 N.E.2d 832 (Mass. 1981)
• Gould v. Grubb, 536 P.2d 1337 (Cal. 1975); Moore v. Ogilvie, 394 U.S. 814 (1969)
• Keller v. State Bar of California, 226 Cal. Rptr. 448 (Cal. Ct. App. 1986)
• Hampel v. Mitten, 278 N.W. 431 (Wis. 1938)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C040196.pdf

Original opinion text

April 1, 1996
Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED
Re: Certificate of Review; Initiative Regarding Term Limits

Dear Mr. Cenarrusa:

An initiative petition was filed with your office on March 4, 1996. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments.

MATTERS OF SUBSTANTIVE IMPORT

The proposed initiative seeks to add a new section of Idaho Code which instructs the Idaho congressional delegation as well as state legislators and candidates for such offices to affirmatively support an amendment to the U.S. Constitution to impose term limits on members of Congress. If these elected officials or candidates for such offices engage in certain acts or omissions relating to said term limits amendment, certain language may be placed by their names on a ballot for their election or re-election.

Requiring the State of Idaho to print any of the above language on a ballot raises problems under several constitutional provisions including the freedom of speech, the Equal Protection Clause of the U.S. and Idaho Constitutions, and the right of suffrage provision contained in the Idaho Constitution.

The form and content of a ballot for the election of state legislators or members of Congress is generally left up to the states. Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992). However, "as soon as the State admits a particular subject to the ballot, and commences to manipulate the content, to legislate what shall and shall not appear, it must take account of the provisions of the Federal and State Constitutions regarding freedom of speech and association, together with the provisions assuring equal protection of the laws." Bachrach v. Secretary of the Commonwealth, 415 N.E.2d 832, 835 (Mass. 1981).

Requiring the state to place pejorative comments adjacent to a candidate's name on the ballot essentially places the state in a position of endorsing certain candidates and issues in the political arena. By favoring candidates who support term limits, the government is supporting certain political expression because of its content. Regulating content of speech is normally reviewed under a strict scrutiny analysis under the First Amendment.

In Brown v. Hartlage, 456 U.S. 45, 60 (1982), the U.S. Supreme Court held: "It is simply not the function of government to 'select which issues are worth discussing or debating' in the course of a political campaign." Similarly, the State of Idaho cannot select which issues should be promoted and supported by candidates for political office.

In Bachrach, the court analyzed a Massachusetts law which proscribed the use of the term "independent" on the ballot, requiring "unenrolled" instead. The court held the law unconstitutional because of its less favorable treatment of candidates who were not affiliated with a political party.

In Gould v. Grubb, 536 P.2d 1337 (Cal. 1975), the court struck down a city charter provision affording priority ballot listing for incumbents as well as alphabetical listing, holding that "all procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgment of the right to vote."

This is not to say that "government speech" has no role in our political culture. "Government has legitimate interests in informing, in educating, and in persuading, and it may add its voice to the marketplace of ideas on controversial topics. Nevertheless, it may not, in the guise of governmental speech, trammel the free speech rights of its citizens." Keller v. State Bar of California, 226 Cal. Rptr. 448, 462 (Cal. Ct. App. 1986).

In conclusion, in our opinion, the proposed initiative, if challenged, would be declared unconstitutional. The effect of placing unfavorable comments next to a candidate's name places the state in the role of endorsing candidates and issues in the course of a political campaign.

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style and matters of substantive import and that the recommendations set forth above have been communicated to petitioner Donna Weaver.

Sincerely,
ALAN G. LANCE
Attorney General

Analysis by:
THOMAS F. GRATTON
Deputy Attorney General