The aftermath of Thornton.

• Author: Rotunda, Ronald D.
• Position: U.S. Term Limits v. Thornton

1. INTRODUCTION

   While term limits on state officials are quite common,(1) and raise no serious federal constitutional problems,(2) term limits on federal legislators are a different matter. In US. Term Limits v. Thornton(3) the Supreme Court, by a narrow 5 to 4 majority, declared unconstitutional an Arkansas law limiting ballot access for incumbent U.S. Senators and Representatives after they had served two terms (in the case of Senators) or three terms (in the case of Representatives).

   What next? In considering the aftermath of Thornton, a primary question is whether it should be narrowly interpreted. It is interesting to note that the Arkansas law was written as a ballot access law, not as a permanent disqualification from office. It did not incapacitate or prohibit an incumbent from serving in the U.S. Senate for a third term after having served two terms; he or she was only disqualified from being listed on the ballot. During oral argument, counsel for the respondents agreed that the Arkansas law was not a "qualification," an admission that caused Justice Stevens to remark: "That's a major concession."(4) Consequently, Justice Stevens, who wrote the majority opinion, could not simply invalidate the Arkansas law: he had to show that it was really a "qualification." He concluded that it was a qualification because that was the "true intent" of the people of Arkansas; the law "has the sole purpose of creating additional qualifications indirectly."(5)

   This intent argument raises interesting questions, particularly if the state has several purposes in mind. For example, if another state enacts a ballot access restriction, could a lower court (or the Supreme Court) uphold the law as consistent with Thornton if the "true intent" is not solely to impose absolute and permanent term limits but only to level the playing field between incumbents and challengers?

   Justice Stevens' opinion explicitly approved of Storer v. Brown,(6) which upheld a California law that denied ballot access to any Congressional candidate running as an independent if the candidate had voted in the most recent party primary or had registered with a political party during the previous year. Suppose a state law, following Storer, provided that a candidate can be listed on the ballot for Senator no more than two elections out of every three. Or assume that a state law provides that if a two-term Senate incumbent remains on the ballot for a third consecutive time, then the incumbent's party must also nominate a second candidate to run for the same office. The state may be expected to argue that its "true purpose" is to level the playing field between incumbents and challengers, to give voters more choices in candidates, or to compensate for the incumbents' greater ability to raise campaign funds and their greater name recognition. The state will argue that it did not have the "sole purpose of creating additional qualifications." Moreover, both of these hypothetical laws affecting ballot access are, like the ballot access restriction in Storer (and unlike the law in Thornton), a temporary restriction, not a lifetime ban. While Justice Stevens did not explain how the Court would rule on this question, the way he wrote his opinion, with its reference to "true intent," suggests that Thornton will not end the term limit debate.

   However, I would like to leave to one side the question whether Thornton will be narrowly interpreted by later courts. Instead, let us focus on probable responses to Thornton even if the Court eventually decides to invalidate all ballot access laws that may serve to limit congressional terms, even if the law's "sole purpose" is not to create "additional qualifications."

   The Thornton majority announced that state efforts to impose term limits on federal legislators are unconstitutional because -

   allowing the several States to adopt term limits for congressional service would effect a fundamental change in the constitutional framework. Any such change must come not by legislation adopted either by Congress or by an individual State, but rather - as have other important changes in the electoral process - through the Amendment procedures set forth in Article V.(7)

   Is it historically correct that "fundamental change in the constitutional framework" must be effected only through the Amendment process? Certainly, one obvious response to the Supreme Court's decision in Thornton is to lobby for a constitutional amendment, but that alternative, which is always cumbersome, may not appear to be especially promising in this instance because Congress has already considered and rejected that option.

   However, history indicates that some amendments are eventually accepted even though initially rejected. Let us briefly turn to that history and look at two significant ways that the Constitution has been effectively amended, one dealing with the role of the Presidential electors (where there has never been a formal amendment) and the other dealing with the direct election of U.S. Senators (where a de facto change in the Constitution preceded what was later formalized as the Seventeenth Amendment). Both examples offer historical insight as to what might happen as the term limit debate moves into second gear.

2. PRESIDENTIAL ELECTORS

   Technically, we do not vote for the President or Vice President. We vote for electors, who in turn cast ballots for President and Vice President. I say "technically" because the modern election ballot does not even indicate that one does not really vote Clinton-Gore, or Bush-Quayle. The names of the candidates for Presidential electors do not appear on the ballot, they conduct no campaigns, and they are really unknown to the electorate.(8)

   The framers believed that members of the Electoral College, unencumbered by the voters' preferences, would exercise their judgment to decide who was the best person for the Presidency.(9) The framers foresaw many things, but...