Could Idaho put a 'Signed TERM LIMITS pledge' or 'Broke TERM LIMITS pledge' legend next to a congressional candidate's name on the ballot, after the Supreme Court struck down state-imposed term limits on Congress?

Plain-English summary

Idaho's certificate-of-review process under Idaho Code § 34-1809 lets the AG flag legal problems with proposed initiative petitions before they collect signatures. Donna Weaver filed an initiative on June 26, 1997, that would have authorized congressional candidates to sign a written pledge limiting themselves to three House terms or two Senate terms. Once signed, the Secretary of State would have been required to print "Signed TERM LIMITS pledge to serve no more than [three terms] [two terms]" or "Broke TERM LIMITS pledge" next to the candidate's name on every ballot and in all state-sponsored voter education material.

Deputy AG Matthew J. McKeown, writing for AG Alan G. Lance, raised four substantive concerns. First, the constitutionality of ballot legends generally was an open question pending the Idaho Supreme Court's decision in Simpson v. Cenarrusa, the challenge to the 1996 term-limits legend initiative. Second, section 5's requirement to post the pledge form in polling places potentially conflicted with Idaho Code §§ 18-2318(1)(b) (no circulating cards or handbills within 100 feet of a polling place) and 18-2323 (no placards in voting booths intended to call voters' attention to a candidate); the initiative needed an explicit precedence clause. Third, section 6's "service in office for more than one-half of a term shall be deemed service for a term" rule risked colliding with U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), which barred states from adding qualifications to federal offices beyond those in the U.S. Constitution. Fourth, section 7 purported to give the initiative's sponsors standing to defend it in court, but Idaho Code § 67-1401 makes the Attorney General responsible for defending state laws; if the sponsors meant to displace the AG, they had to say so explicitly.

The certificate did not endorse or reject the initiative. It did its statutory job: identify the issues a court would later have to resolve.

Currency note

This opinion was issued in 1997. 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

Why was the ballot legend constitutionally problematic?

The U.S. Supreme Court in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) had struck down a state-imposed congressional term limit as an unconstitutional addition to the qualifications for federal office in Article I, sections 2 and 3. After Thornton, term-limits proponents pivoted to "scarlet letter" ballot legends: legends that put pressure on candidates to pledge term limits without formally adding to the qualifications for office. The legal question was whether those legends amounted to a backdoor qualification or burdened the right to vote. Idaho's Simpson v. Cenarrusa litigation, then awaiting decision in the Idaho Supreme Court, was about exactly that question, so the AG flagged that this initiative's fate likely turned on Simpson's outcome.

What was the polling-place posting problem?

Idaho Code § 18-2318(1)(b) makes it unlawful for any person to "circulate cards or handbills of any kind" within 100 feet of a polling place, and § 18-2323 prohibits placards in voting booths "intended or likely to call the attention of the voter to any candidate, or to urge the voter to vote for any particular candidate." Section 5 of the initiative required election officials to post a copy of the term-limits pledge "in a conspicuous place in every polling location," which arguably ran afoul of both sections. The AG's fix: write a precedence clause saying section 5 controls over the conflicting statutes.

What did section 6's deemed-service rule actually try to do?

It said any candidate who served more than half a term would be charged with serving a full term for purposes of the pledge. The problem was that section 6 effectively reshaped the contours of what a "term" meant for federal office, which the Thornton court had treated as a state qualification dressed up as something else. A reviewing court would likely refuse to enforce section 6 if it concluded the rule reached too close to congressional qualifications.

Why did the AG flag the standing-to-defend section?

Because Idaho Code § 67-1401 designates the AG (or the AG's designee) as the officer responsible for defending state laws against challenges in court. If the initiative's sponsors meant to relieve the AG of that duty and take over defense themselves, the initiative had to say so directly. Without express language, the AG would still have been responsible for defending the initiative in court regardless of what section 7 said about sponsor standing, although the Idaho Rules of Civil Procedure would likely have allowed the sponsors to intervene as defendants.

Background and statutory framework

Idaho's initiative review process under Idaho Code § 34-1809 is advisory by design. The AG is required to review every proposed initiative for "form, style and matters of substantive import" within a strict statutory timeframe and to communicate concerns to the petitioner; the petitioner is "free to accept or reject [the recommendations] in whole or in part." The output is a "certificate of review," and these certificates form a window into how the AG's office reads ongoing political and legal developments in real time.

This certificate was one of several issued in mid-1997 in the wake of the U.S. Supreme Court's 1995 Thornton decision and the Idaho Supreme Court's pending Simpson v. Cenarrusa case. Idaho voters had passed a 1994 term-limits act that included congressional term limits; Thornton had invalidated the federal-office portion. The 1996 election cycle saw a "term limits legend" initiative designed to identify candidates who refused to support a congressional term limits constitutional amendment, which Simpson challenged on right-to-vote and ballot-integrity grounds. The 1997 initiatives, including the pledge-based proposal addressed in this certificate, were the next-generation attempts to keep pressure on federal candidates without crossing the Thornton line.

Citations

• Idaho Code §§ 18-2318, 18-2323, 34-1809, 67-1401
• Simpson v. Cenarrusa, Supreme Court No. 23526 (argued May 7, 1997)
• U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S. Ct. 1842 (1995)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C070897.pdf

Original opinion text

July 8, 1997
The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED
Re: Certificate of Review Initiative Regarding Congressional Term Limits Pledges

Dear Mr. Cenarrusa:

A proposed initiative petition was filed with your office on June 26, 1997. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. It must be stressed that, given the strict statutory timeframe in which this office must respond and the complexity of the legal issues raised in this petition, our review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only," and the petitioners are free to "accept or reject them in whole or in part."

BALLOT TITLE

Following the filing of the proposed initiative, our office will prepare short and long ballot titles. The ballot titles should impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure.

MATTERS OF SUBSTANTIVE IMPORT

The proposed initiative authorizes candidates for either the United States House of Representatives or the United States Senate to sign a "term limits pledge." Section 2 of the proposed initiative contains the following pledge form language:

I voluntarily pledge not to serve in the United States [House of Representatives for more than three (3) terms] [Senate more than two (2) terms] after the effective date of this provision. I understand that informing the voters that I have taken this pledge is important to voters. I therefore authorize, instruct and ask the Secretary of State to notify the voters of this action by placing the applicable ballot information, "Signed TERM LIMITS pledge to serve no more than [three (3) terms] [two (2) terms]" or "Broke TERM LIMITS pledge" next to my name on every election ballot and in all state sponsored voter education material in which my name appears as a candidate for the office to which the pledge refers.

Once the candidate signs the pledge, sections three and four of the proposed initiative require the Idaho Secretary of State to place the applicable term limits legend next to candidates' names in every election ballot and in all state-sponsored voter education material.

The constitutionality of ballot legends of any kind is still an open question in Idaho. In Simpson v. Cenarrusa, Supreme Court No. 23526 (argued May 7, 1997) (challenge to the 1996 term limits legend initiative), one of the arguments presented by the petitioners was that ballot legends are an unconstitutional infringement on the right to vote. The Idaho Supreme Court is likely to rule on that question in the near future. If the Idaho Supreme Court rules in favor of the Simpson petitioners on the issue of ballot legends, the provisions authorizing the congressional term limits pledges will probably be invalidated by a reviewing court.

Section Five

Section five of the proposed initiative requires the secretary of state, or other designated election officials, to "post in a conspicuous place in every polling location a copy of the Term Limits Pledge." Currently, Idaho Code § 18-2318(1)(b) prohibits any person from "circulating cards or handbills of any kind" within one hundred feet of a polling place. In addition, Idaho Code § 18-2323 prohibits the placing of placards in voting booths that are "intended or likely to call the attention of the voter to any candidate, or to urge the voter to vote for any particular candidate." Since section five of the proposed initiative has the potential to conflict with Idaho Code §§ 18-2318 and 18-2323, it should be revised to specify that section five takes precedence over other potential conflicting statutes.

Section Six

Section six of the proposed initiative states that, "service in office for more than one-half of a term shall be deemed service for a term." In U.S. Term Limits v. Bryant, --- U.S. ---, 115 S. Ct. 1842 (1995), the United States Supreme Court ruled that states may not impose qualifications for offices of the United States Representative or United States Senator in addition to those set forth by the Constitution. Therefore, a reviewing court will probably refuse to implement section six if it is deemed to conflict with the United States Constitution.

Section Seven

Section seven states that the "state recognized proponents and sponsors of this initiative have standing to defend this initiative against any challenge in any court." Idaho Code § 67-1401 states that the Idaho Attorney General, or his designee, is responsible for defending state laws against challenges in court. If it is the intention of the sponsor to relieve the Office of the Attorney General from the obligation of defending the proposed initiative in court, then that intention should be specifically incorporated into section seven. Even without section 7, the Idaho Rules of Civil Procedure probably give the initiative sponsors the ability to intervene as a defendant in any action challenging the proposed initiative.

Section Eight

Section eight of the proposed initiative authorizes the secretary of state to promulgate rules in order to implement the proposed initiative.

Section Nine

Section nine of the proposed initiative contains a severability clause.

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 by deposit in the U.S. Mail of a copy of this certificate of review.

Sincerely,
ALAN G. LANCE
Attorney General

Analysis by:
MATTHEW J. MCKEOWN
Deputy Attorney General