United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 98-1494
                                 ___________

Donald James Gralike,                  *
                                       *
        Plaintiff-Appellee,            *
                                       *
Mike Harman,                           *
                                       *
        Intervenor on Appeal,          *
                                       *
                v.                     *
                                       *
Rebecca McDowell Cook,                 *
                                       *   Appeal from the United States
        Defendant-Appellant.           *   District Court for the
-----------------------------------    *   Western District of Missouri
                                       *
Professor Kris W. Kobach,              *
                                       *
        Amicus on Behalf of Appellant. *
                                       *
League of Women Voters of the United *
States; League of Women Voters of      *
Missouri,                              *
                                       *
        Amici on Behalf of Appellee.   *

                                 ___________

                           Submitted: November 16, 1998

                               Filed: August 31, 1999
                                ___________
                                    ____________

Before McMILLIAN, FLOYD R. GIBSON and HANSEN, Circuit Judges.
                           ___________

McMILLIAN, Circuit Judge.


       Appellant Rebecca McDowell Cook, in her official capacity as Secretary of State
of the State of Missouri, appeals from a final order entered in the United States District
Court1 for the Western District of Missouri granting summary judgment in favor of
appellee Donald James Gralike, and invalidating as unconstitutional the 1996 Missouri
ballot initiative concerning term limits for members of the United States Congress,
codified at Article VIII, Sections15-22 of the Missouri Constitution.2 See Gralike v.
Cook, 

(W.D. Mo. 1998)(Gralike III). For reversal, Cook argues that
the district court erred in granting summary judgment for appellee because the
amendment does not violate the First Amendment or Articles I or V of the United
States Constitution. For the reasons discussed below, we affirm the judgment of the
district court.

       Jurisdiction in the district court was proper based upon 28 U.S.C. §§ 1331, 1343.
Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291. The notice of appeal
was timely filed pursuant to Fed. R. App. P. 4(a).



      1
        The Honorable D. Brook Bartlett, United States District Judge for the Western
District of Missouri.
      2
      In this order, the District Court referred to its January 29, 1998 order, 

(W.D.Mo. 1998), for the legal analysis supporting its decision that the
amendment was unconstitutional on Article I, Free Speech, Article V, and vagueness
grounds.

                                           -2-
                                    I. BACKGROUND

        In November 1996 the voters of Missouri passed an amendment to Article VIII
of the Missouri Constitution (hereinafter “Missouri Amendment” or "Amendment") to
limit the number of terms any individual may serve in the United States Congress. The
Amendment seeks to limit congressional service to three terms in the House of
Representatives and two terms in the Senate.3 See MO. CONST. Art. VIII, § 16. To
achieve this goal, the Missouri Amendment orders members of Missouri’s
congressional delegation to use their authority to amend the United States Constitution


      3
        Similar initiatives were on the ballot in thirteen other states in November 1996.
In Alaska, Arkansas, Colorado, Idaho, Maine, Nebraska, Nevada and South Dakota
voters approved the initiatives, while in Montana, North Dakota, Oregon, Washington,
and Wyoming they rejected them. See Robert Pear, The 1996 Elections: The
States–The Initiatives, N. Y. Times, Nov. 7, 1996, at B7.

       As of the writing of this opinion, the initiatives in Arkansas, Colorado, Idaho,
Maine, Nebraska, South Dakota, and Missouri have been invalidated in federal and
state courts on various state and federal constitutional grounds. See Miller v. Moore,

(8th Cir. 1999) (Nebraska initiative invalidated on Article V and right
to vote grounds); Barker v. Hazeltine, 

(D.S.D. 1998) (invalidated
on Article V, First Amendment, Speech and Debate, and Due Process grounds); League
of Women Voters of Maine v. Gwadosky, 

(D. Me. 1997) (invalidated
on Article V grounds); Donovan v. Priest, 

(Ark. 1996) (a pre-election
challenge, initiative invalidated on Article V grounds); Morrissey v. Colorado, 

(Colo. 1998) (invalidated on Article V grounds); Simpson v. Cenarrusa, 

(Idaho 1997) (invalidated on First Amendment, Speech and Debate Clause, and
state constitutional grounds.); In re: Initiative Petition No. 364, State Question No. 673,

(Okla. 1996) (invalidated on Article V and state constitutional
grounds).

      Yet another similar initiative was passed in California in June 1998. The
Supreme Court of California invalidated it on Article V and state initiative law grounds.
See Bramberg v. Jones, 

, 1054-64 (Cal. 1999).

                                           -3-
to impose the term limits in § 16 on Congressional service. See 

       If a Missouri Representative or Senator fails to comply with this order, the
Missouri Amendment dictates that the label “DISREGARDED VOTERS’
INSTRUCTION ON TERM LIMITS” be printed next to his or her name on all ballots
during the next election. 

Amendment defines a failure to comply with
the instructions as: (1) failure to vote in favor of a term limit amendment conforming
with § 16; (2) failure to second it if a second is lacking; (3) failure to propose or
otherwise bring to a vote a term limit amendment conforming with § 16; (4) failure to
vote favorably on measures to bring such an amendment before committee; (5) failure
to vote against all measures to delay, table, or otherwise prevent a vote by the full
body; (6) failure to vote against amendments allowing longer terms of Congressional
service than § 16 allows; (7) sponsoring or cosponsoring an amendment with longer
terms than those in § 16; and (8) failure to ensure that all votes on term limits are
recorded and available to the public. See 

Amendment requires non-incumbent candidates to take a pledge
to use their authority to amend the United States Constitution to impose the term limits
in § 16 if elected. It orders that those who do not take the pledge have the label
“DECLINED TO PLEDGE TO SUPPORT TERM LIMITS” printed next to their
names on the ballot. 

To avoid being labeled on the ballot, non-incumbent
candidates must take the following pledge:

      I support term limits and pledge to use all my legislative powers to enact
      the proposed Constitutional Amendment set forth in the Term Limits Act
      of 1996. If elected, I pledge to vote in such a way that the designation
      “DISREGARDED VOTERS’ INSTRUCTION ON TERM LIMITS” will
      not appear adjacent to my name.

§ 18(3).




                                          -4-
       For both incumbent and non-incumbent candidates, the Missouri Amendment
requires the Secretary of State to decide whether a label will be printed on the ballot
and to consider public comment in making that determination. See 

(1-4). It
allows individual voters to appeal the Secretary of State’s decision not to print the label
by a candidate’s name directly to the Missouri Supreme Court, in which case the
Secretary of State must produce clear and convincing evidence that the candidate
conformed with the initiative or took the pledge. It also permits a candidate, whom the
Secretary of State decides shall have the label appear next to his or her name on the
ballot, to appeal this decision to the Missouri Supreme Court, in which case the
candidate must produce clear and convincing evidence why the label should not be
printed on the ballot. See 

(5, 6). In addition, the Missouri Amendment
automatically repeals itself if and when the United States Constitution is amended to
conform with the § 16 term limits. See 

It also grants the Missouri Supreme
Court original jurisdiction to hear challenges to the Amendment. See 

Finally,
it contains a severability clause. See 

       Soon after its passage, appellee initiated this action in federal district court
challenging the Missouri Amendment on several federal constitutional grounds.
Appellee is not currently a member of the Missouri congressional delegation, but he
was a candidate for the third district Congressional seat in 1998 and has issued a
declaration of his intent to run for the same seat in 2000. The district court issued three
memorandum orders addressing different motions by the parties. In the first order, the
district court denied in part and granted in part appellant’s motion to dismiss, finding
that appellee did have standing to sue, did meet the requirements for injunctive relief,
that appellant was not protected by Eleventh Amendment immunity, that the court need
not abstain from judgment since there were no unanswered questions of state law, and
that the court need not certify questions of federal law to the Missouri Supreme Court




                                           -5-
since that court has held that it lacks jurisdiction over such questions.4 See Gralike v.
Cook, 

(W.D. Mo. 1998) (Gralike I). In its second order, the district
court granted in part and denied in part appellant’s motion to dismiss for failure to state
a claim; it denied appellant’s motion to dismiss appellee’s claims that the Missouri
Amendment violates Article I, Article V, and the First and Fourteenth Amendments of
the United States Constitution, but granted her motion to dismiss appellee’s claim that
§ 21 of the Missouri Amendment violates the Supremacy Clause of the United States
Constitution. See 

901 (W.D. Mo. 1998) (Gralike II). In its final
order in this case, the district court granted appellee’s motion for summary judgment
on his Article I, Article V, and First Amendment Claims; the district court did not reach
plaintiff-appellee’s Due Process vagueness claim because it determined that the other
three claims were sufficient to dispose of the case. See 

917 (W.D.Mo.
1998)(Gralike III). The district court, in Gralike III, relied upon its earlier order in
Gralike II for the analysis supporting its decision to grant summary judgment for
plaintiff-appellee. Judgment was entered for appellee, and appellant timely appealed.

                                    II. DISCUSSION

         We review decisions to grant summary judgment de novo, reviewing the facts
in the light most favorable to the non-moving party. See Barnhart v. UNUM Life
Insurance Co. of America, No. 98-3350, Slip Op. at 7 (8th Cir. May 28, 1999). We
will affirm a grant of summary judgment if, viewed in the light most favorable to the
non-moving party, no genuine issue of material fact exists and the moving party is




      4
        The District Court cited Zeman v. V.F. Factory Outlet, Inc., 

, 108-
09 (1990) (discussing the Missouri Supreme Court’s order in Zeman v. V.F. Factory
Outlet, Inc., No. 72613 (Mo. July 13, 1990)(refusing to accept questions certified by
federal courts)). See Gralike v. Cook, 

, 901 (W.D. Mo. 1998)
(Gralike I).

                                           -6-
entitled to judgment as a matter of law. See, e.g., Hughes v. Ortho Pharmaceutical
Corp., No. 98-2218, Slip Op. at 4-5 (8th Cir. May 27, 1999).

                               A. FIRST AMENDMENT

       Appellant argues that the district court erred in holding that the Missouri
Amendment violates the First Amendment guarantee of free speech. First, she argues
that, because the Missouri Amendment imposes no sanction on candidates for United
States Congress for failure to speak, the district court erred in concluding that the
Missouri Amendment compels or coerces candidates to speak. Second, she argues that
the district court should not have analyzed the Missouri Amendment under strict
scrutiny review, but rather should have balanced candidates’ right to keep their views
on term limits secret with the electorate’s right to know the views of candidates.
Furthermore, she points out, the Amendment was the result of a popular election, and
the courts should be especially careful when considering legislation passed by direct
democracy. We agree with the district court's well-reasoned analysis, and reject
appellant's arguments.

                                1. Compelled speech

       It is well established that the First Amendment to the United States Constitution
bars not only state action which restricts free expression but also state action which
compels individuals to speak or express a certain point of view. See Wooley v.
Maynard, 

, 714 (1977) (Wooley); West Virginia State Board of Education
v. Barnette, 

, 642 (1943) (Barnette); see also Miami Herald Publishing
Co. v. Tornillo, 418 U.S. 241(1974) (Miami Herald); cf. Scope Pictures v. City of
Kansas City, 140 F.3d 1201(8th Cir. 1998); United States v. Sindel, 

(8th
Cir. 1995). Moreover, “[t]he burden upon freedom of expression is particularly great
where, as here, the compelled speech is in the public context.” Lehnert v. Ferris
Faculty Ass'n, 

, 522 (1991). We hold that the Missouri Amendment is an

                                          -7-
impermissible attempt by the State of Missouri to compel candidates to express a point
of view on term limits. Accord Barker v. Letellier, 

, 1096 (D.S.D.
1998) (Barker) (invalidating a nearly identical term limit initiative passed in South
Dakota on First Amendment grounds, in part); Simpson v. Cenarrusa, 

,
1375-76 (Idaho 1997) (Simpson)(invalidating similar term limit initiative in Idaho on
First Amendment grounds, among other grounds).

       In Wooley, the Supreme Court invalidated the conviction of a New Hampshire
couple who covered the state motto "Live Free or Die" on their license plate,
concluding that "the right of freedom of thought protected by the First Amendment
against state action includes both the right to speak freely and the right to refrain from
speaking at 

; see also 

("If there is any
fixed star in our constitutional constellation, it is that no 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."). Since Wooley,
the Supreme Court has reaffirmed the prohibition on compelled speech and refined it
to apply to cases in which the government orders certain types of speech or speech
about certain topics. For example, in Riley v. Nat'l Fed. of the Blind of North Carolina,
Inc., 

, 786 (1988), the Court invalidated on First Amendment grounds a
North Carolina law which, among other things, required professional fund raisers,
before soliciting donations, to disclose what portion of donations they turned over to
the charities for which they solicited in the preceding twelve months. The Court
concluded that the state law violated the First Amendment prohibition on state-
compelled speech because "[t]he First Amendment mandates that we presume that
speakers, not the government, know best both what they want to say and how to say
it . . . . To this end, the government . . . may not substitute its judgment as to how best
to speak for that of speakers and listeners . . . ." 

see also Pacific Gas &
Electric Co. v. Public Utilities Comm'n of California, 

, 14-16 (1986)(Pacific
Gas)("the State is not free either to restrict appellant's speech to certain topics or views


                                            -8-
or to force appellant to respond to views that others may hold . . . . [T]he choice to
speak includes within it the choice of what not to say . . . .").

        The Missouri Amendment compels candidates to speak about term limits. First,
it attempts to force candidates to speak in favor of term limits by threatening them with
the ballot label if they fail to do so. Second, if a candidate refuses to speak in favor of
term limits, the label on the ballot forces him or her to speak in opposition to the
Amendment by noting that he or she failed to follow the voters' wishes. Either way, the
Missouri Amendment does not allow candidates to remain silent on the issue, which
is precisely the type of state-compelled speech which violates the First Amendment
right not to speak. First, the Missouri Amendment selects the topic for public debate:
term limits. Second, it chooses an approved position: favoring term limits. Third, it
provides the actual words which non-incumbent candidates shall speak: the pledge.
Finally, in the event its attempts to compel speech in favor of term limits fail, the
Missouri Amendment provides a mechanism to compel candidates to speak in
opposition: the ballot labels.

       Appellant attempts to distinguish the Missouri Amendment from other compelled
speech cases by arguing that the Missouri Amendment does not compel speech because
it imposes no criminal or monetary sanction for refusing to speak. Rather, the only
possible sanction the Missouri Amendment could impose, appellant argues, is the
exposure of candidates’ views and/or record on term limits. We disagree. As a
threshold matter, we note that the concept of compelled speech has never been limited
to those cases in which the state seeks to impose or compel speech through threat of
financial or criminal sanction. See, e.g., Miami 

("Even if a
newspaper would face no additional costs to comply . . . the Florida statute [compelling
speech] fails to clear the barriers of the First Amendment . . . ."). Nevertheless, we
believe that the Missouri Amendment in fact threatens a penalty that is serious enough
to compel candidates to speak--the potential political damage of the ballot labels. See


                                           -9-
Miller v. Moore, 

, 1125(8th Cir. 1999) (Moore); accord Barker, 3 F.
Supp. 2d at 1094-95.

        Contrary to appellant’s contentions that the labels only provide information about
the candidates' views, the labels do far more than advise voters of a candidates'
opposition to term limits.5 The labels are phrased in such a way they are likely to give
(and we believe calculated to give) a negative impression not only of a labeled
candidate’s views on term limits, but also of his or her commitment and accountability
to his or her constituents. See 

; accord 

; League of Women Voters of Maine v. Gwadosky, 

, 59-
61(D. Me. 1997)(Gwadosky); Donovan v. Priest, 

, 370(Ark. 1996)
(Donovan); Morrissey v. State, 

, 916(Colo. 1998) (Morrissey). The non-
incumbent label “DECLINED TO PLEDGE TO SUPPORT TERM LIMITS,” in light
of the preamble and § 16 of the Amendment which state that the people of Missouri
desire term limits, indicates that a candidate so labeled refused to promise to do the
people’s bidding. The incumbent label “DISREGARDED VOTERS’ INSTRUCTION
ON TERM LIMITS” indicates that, during the preceding term, the candidate failed to
act in accordance with his or her constituents' wishes. Each label implies that a labeled
candidate cannot be trusted to carry out the people's bidding, which in turn casts doubt
on his or her suitability to serve in Congress.

       The pejorative nature of the labels is heightened by the fact that there are no
labels for candidates who take the pledge or comply with the mandates of §17 while
in office. The only “information” the Missouri Amendment adds to the ballot is
derogatory labels for candidates who do not do what it requires. Furthermore, the


      5
       Thus the question of whether the label is damaging does not turn so much on the
impact of voter reaction to the fact that a candidate opposes or supports term limits, as
appellant suggests, but more so on the language in the label that advises the voters of
the candidate’s purported opposition.

                                          -10-
labels are particularly harmful because they appear on the ballot, an official document
produced by the state.6 Thus, the labels appear to be an official denunciation of certain
candidates who are singled out by the state for their failure to speak in favor of term
limits or take all action that § 17 requires. 

("[the] ballot
labels effectively place the state's official stamp of disapproval on . . . [candidates]
whom the state disfavors because of their views on a single political issues. . ."; accord

, 

; 

("[the labels] are equivalent to an officially sanctioned recommendation by the
State. . . not to vote for such candidates because they disregarded the instructions and
wishes of the voters."). The ballot labels are a serious sanction, which we believe is
sufficient to coerce candidates to speak out in favor of term limits rather than risk the
political consequences associated with being labeled on the ballot. Moreover, the fact
that the label appears on the ballot compels candidates to speak because the labels
themselves constitute speech. Once the label is on the ballot, it ascribes a point of view
to the labeled candidate.

       Arguing that the First Amendment does not insulate candidates from the
electorate, appellant points out that individuals become subject to the Missouri
Amendment only if they chose to run for office. However, “[a] political candidate does
not lose the protection of the First Amendment when he [or she] declares himself [or
herself] for public office.” Brown v. Hartlage, 

, 53 (1982). An individual’s
choice to serve the public by seeking congressional office does not grant the state
licence to restrict or compel his or her speech. On the contrary, speech restrictions are
particularly destructive in the political arena, where the importance of free exchange
of ideas and information--a vital aspect of our democratic system--is at its zenith. See

identity of the speaker is not decisive in determining whether



      6
       Moreover, the labels appear at the critical instant of voting, during which the
labeled candidate cannot contact the voter to defend himself or herself against the label.

                                          -11-
speech is protected.” Pacific 

. Thus we reject appellee’s suggestion
that candidates for public office are afforded diminished First Amendment protections.

                          2. Application of Strict Scrutiny

       Appellant also argues that the district court erred in applying strict scrutiny
analysis to determine the constitutionality of the Missouri Amendment. She contends
that instead the district court should have applied a "balancing test" and upheld the
Amendment since the electorate’s right to know candidates’ views on term limits
outweighs that of candidates to remain silent on the issue. Appellee's Brief at 19
(hereinafter "App. Br."). We disagree.

       The District Court correctly determined that the Missouri Amendment is subject
to strict scrutiny review. First, as discussed above, the Amendment burdens
candidates’ right to free expression by compelling them to state or act in such a way
as to portray a position on the § 16 term limits proposal. This is an impermissible
restriction on core political speech, which subjects the Amendment to strict scrutiny
review. See Meyer v. Grant, 

, 425 (1988). However, even assuming for
purposes of analysis that the Missouri Amendment did not compel political speech,
strict scrutiny review is warranted because the Amendment is a content-based,
viewpoint-specific restriction on candidates' right to free speech. See Burson v.
Freeman, 

, 198 (1992) (Burson) ("[A] facially content-based restriction
on political speech in a public forum . . . must be subjected to exacting scrutiny); see
also Turner Broadcasting System v. FCC, 

(1994).

        The Missouri Amendment is content-based because it addresses the issue of term
limits, completely ignoring all other issues. In addition, it is content-based because it
compels candidates to speak about the issue of term limits, which they might not do
absent state action. See 

(state mandate of “speech that the
speaker would not otherwise make necessarily alters the content of the speech”).

                                          -12-
Furthermore, the Missouri Amendment is viewpoint-specific because the labeling
provisions single out individual candidates for punishment based only on their
opposition–actual or ascribed–to term limits.7 The Missouri Amendment only labels
those who, according to the Secretary of State, oppose the Amendment’s term limits
proposal, and does nothing to those who pledge to support it. As such, the Missouri
Amendment is a state-imposed, viewpoint specific restriction on candidates’ speech
which triggers strict scrutiny review. See Members of the City Council v. Taxpayers
for Vincent, 

, 804 (1984) ("The general principle that has emerged . . . is
that the First Amendment forbids the government to regulate speech in ways that favor
some viewpoints or ideas at the expense of others.")(citing Bolger v. Youngs Drug
Products Corp., 

, 65, 72 (1983); Consolidated Edison Co. v. Public Service
Comm'n, 

, 535-36 (1980); Carey v. Brown, 

, 462-63 (1980);
Young v. American Mini Theatres, Inc., 

, 63- 65, 67-68 (1976) (plurality
opinion); Police Department of Chicago v. Mosley, 

(1972)).




      7
        The point of view the labels ascribe to candidates may not even be accurate.
The Missouri Amendment assigns a label to non-incumbents who fail to pledge and to
incumbents who fail to do one of the seven enumerated actions, regardless of whether
the candidates in fact oppose term limits. For example, a candidate who believed that
terms should be limited to 12 years in the House rather than the six years the
Amendment requires would receive the label even though he or she actually supports
term limits in general. An incumbent candidate who supports term limits but failed to
vote for a proposed amendment because it was linked to unfavorable legislation, for
instance, could also be labeled on the ballot. Regardless of a candidate’s opinion about
term limits in general, if the candidate does not support the specific limit prescribed by
the Missouri Amendment or if he or she does not see it fit to pursue the amendment
process at any cost, he or she will be branded as an opponent to the Missouri
Amendment and to the wishes of the voters of Missouri. Such ascriptions of view point
are precisely the type of state-imposed speech from which individuals are protected by
the First Amendment. See, e.g., Wooley v. Maynard, 

(1977).

                                          -13-
        We hold that the district court correctly determined that the Missouri
Amendment should be subject to strict scrutiny review.8 To survive strict scrutiny
review, appellant must prove that the Missouri Amendment is narrowly tailored to
achieve a compelling government interest. See 

("The State
must show that the 'regulation is necessary to serve a compelling state interest and that
it is narrowly drawn to achieve that end.'") (quoting Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 

, 45 (1983)); Kirkeby v. Furness, 

, 659 (8th
Cir. 1996); see also 

(“Broad prophylactic rules in the area of
free expression are suspect. Precision of regulation must be the touchstone in an area
so closely touching our most precious freedoms.”) (quoting NAACP v. Button, 

, 438 (1963)).

      Appellant maintains that the Missouri Amendment ensures the electorate's right
to know candidates' views. We construe this to mean that voter education is the


      8
        Appellant urges us to determine the appropriate level of scrutiny by applying the
Supreme Court’s reasoning in Burdick v. Takushi, 

(1992) (Burdick).
Burdick was a voting rights case brought by an individual voter challenging Hawaii’s
absolute ban on write-in voting. The plaintiff alleged that the ban violated his First and
Fourteenth amendment rights. The Court advocated an inquiry into the degree of state
interference with First and Fourteenth Amendment rights to determine the level of
scrutiny to apply, stating that tate election regulations which severely restrict those
rights must be narrowly tailored to achieve a compelling State interest but that
regulations that impose only “reasonable, non-discriminatory restrictions” are generally
justified with important state interests. See 

       Although the present case differs from Burdick is significant regards, we believe
that applying the Burdick test also mandates strict scrutiny. The Missouri Amendment
is not a reasonable, nondiscriminatory restriction on candidates’ First and Fourteenth
Amendment rights, rather it is a content-based and viewpoint-specific interference with
candidates’ right to free speech. As such, Burdick would require a narrowly tailored
regulation to achieve a compelling state interest.


                                          -14-
compelling state interest the Missouri Amendment is meant to achieve. While we agree
that an informed electorate is important in our democratic system of government, we
hold that the Missouri Amendment fails strict scrutiny review because it is not narrowly
tailored to achieve the goal of voter education. First, the Missouri Amendment only
provides information about candidates views on term limits, neglecting every other
issue. Although the voters of Missouri obviously feel strongly about term limits, we
believe that a state measure that informs voters only of candidates' views on term limits
does not ensure an informed electorate. Second, the Missouri Amendment is not
narrowly tailored to achieve even the more limited goal of informing voters of
candidates' views on term limits, because it can falsely identify candidates. For
example, the Amendment could require the placement of a ballot label next to the name
of a term limits supporter who failed to comply with an aspect of §17(2). See also
supra note 7. Finally, there are less restrictive means to promote voter education,
which indicates that the Missouri Amendment is not narrowly tailored. See, e.g. Boos
v. Barry, 

, (1988). For example, Missouri could institute voluntary
programs, such as debates or voter information guides, to provide information about
candidates’ views on term limits and other important issues. Such programs advance
the State’s interest in informing voters without compelling candidates to speak or
restricting their right not to speak.
        Since appellant failed to prove that the labeling provisions of the Missouri
Amendment are narrowly tailored to achieve a compelling state interest, she has failed
to justify its infringement on candidates’ right to free speech. The label provisions of
the Missouri Amendment are barred by the First Amendment as applicable to the States
through the Fourteenth Amendment.




                                          -15-
                          B. SPEECH AND DEBATE CLAUSE 9

         A related issue, which applies more appropriately to incumbent candidates, is
whether the Missouri Amendment violates Article 1, section 6, clause 1 of the United
States Constitution--the Speech and Debate Clause, which states, in relevant part: ".
. . for any Speech or Debate in either House, they [Senators and Representatives] shall
not be questioned in any other Place." The Missouri Amendment contravenes this
guarantee because it establishes a regime in which a state officer--the secretary of state-
-is permitted to judge and punish members of Congress for their legislative actions or
positions. Accord 

; 

.
         The Missouri Amendment specifically vests in the secretary of state of Missouri
the responsibility to determine when the ballot label shall appear next to the name of
an incumbent candidate. See MO. CONST. art. VIII, § 19. In so doing, she is to accept
and consider public comments. See 

19(3). As we discussed above, the ballot
label "DISREGARDED VOTERS' INSTRUCTION ON TERM LIMITS" is a
pejorative label with politically damaging ramifications, which amounts to punishment.
Thus, the Missouri Amendment establishes a system by which Senators and
Representatives are questioned about and can be punished for speech, debate, and
actions in Congress. This system contradicts the protections of the Speech and Debate
clause, which is intended to allow Senators and Representatives to speak and vote their

      9
        Although the district court did not address this issue, we believe it is necessary
to demonstrate why the Missouri Amendment is invalid as applied to incumbent
candidates. Since the situation of incumbent candidates is somewhat different than that
of non-incumbent candidates, the First Amendment issues discussed in Section II A do
not apply as squarely to incumbent candidates. As such we exercise our discretion to
affirm the judgment on this ground, although it was not considered by the district court.
See United States v. Sager, 

, 1263 n.4 (8th Cir. 1984) ("We review
judgments, not opinions, and we may affirm on any ground supported by the record,
whether or not that ground was urged below or passed on by the district court."); see
also Wisdom v. First Midwest Bank, 

, 406 (8th Cir. 1999) (quoting
Stevens v. Redwing, 

, 543 (8th Cir. 1998).

                                           -16-
conscience without fear of retribution. See Gravel v. United States, 

, 616
(1972) ("The Speech or Debate Clause was designed to assure a co-equal branch of the
government wide freedom of speech, debate, and deliberation without intimidation or
threats . . . that directly impinge upon or threaten the legislative process").

      The portions of the Missouri Amendment dealing with labeling incumbent
candidates based on their legislative speech and actions violate of the Speech and
Debate clause. Accord Barker, 3 F Supp. at 1096; 

.

                            C. QUALIFICATIONS CLAUSE

       Appellant next contends that the district court erred in concluding that the
Missouri Amendment constitutes an impermissible qualification for candidacy for the
United States Congress in violation of the Qualifications Clause, Article 1 of the United
States Constitution. Appellant argues that the Missouri Amendment does no more than
provide information about candidates and does not constitute a qualification within the
meaning of Article I. We disagree.

       We believe that Qualifications Clause issues raised in this case were addressed
by the Supreme Court in U.S. Term Limits v. Thornton, 

(1995). In that
case the Court held that an amendment to the Arkansas Constitution, which banned the
names of incumbents who had served more than two terms in the United States Senate
or three terms in the United States House of Representatives from appearing on the
ballot, established an impermissible additional qualification for candidacy for Congress.
See 

After conducting a thorough historical review, the Court determined
that neither the Framers, the constructs of our democratic society, the text of the
Constitution itself, nor past Congressional action supported the contention that states
may impose additional or different qualifications than those set out in the Qualifications
Clause. See 

Rather, the Court stated, any state authority to set
qualifications for Congress was abrogated by the ratification of the Constitution, and

                                          -17-
the sole source of qualifications for Congressional office is contained in Article I. See

Thus, any attempt by a state to alter or add to these qualifications is clearly
proscribed by the Constitution.10



      10
        In US Term Limits v. Thornton, 

(1995) (US Term Limits) the
Supreme Court pointed out, there is unanimity among courts which have considered
whether states can add to or change Article I qualifications. The Court cited a litany
of cases which struck state-initiated attempts to alter Article I qualifications:

      Chandler v. Howell, 

, 

(1918); Eckwall v.
      Stadelman, 146 Ore. 439, 446, 

, 1040 (1934); Stockton v.
      McFarland, 

, 144, 

, 330 (1940); State ex rel.
      Johnson v. Crane, 

, 

(1948); Dillon v. Fiorina,
      

, 731 (D. N. M. 1972); Stack v. Adams, 

, 1297-1298 (N.D. Fla. 1970); Buckingham v. State, 

, 

, 905 (1944); Stumpf v. Lau, 

, 830, 

,
      123 (1992); Danielson v. Fitzsimmons, 

, 151, 

, 486 (1950); In re Opinion of Judges, 

, 587, 

, 234 (1962). Courts have struck down state-imposed qualifications
      in the form of term limits, see, e.g., Thorsted v. Gregoire, 

, 1081 (W.D. Wash. 1994); Stumpf v. 

, 839
      P.2d at 123, district residency requirements, see, e. g., Hellmann v.
      Collier, 

, 100, 

, 911 (1958); Dillon v. 

; Exon v. Tiemann, 

, 613 (Neb.
      1968); State ex rel. Chavez v. Evans, 

, 581, 

,
      448 (1968) (per curiam), loyalty oath requirements, see, e. g., Shub v.
      Simpson, 

, 199, 

, 341, appeal dism'd, 

(1950); In re O'Connor, 

, 421, 

, 760
      (Super. Ct. 1940), [**34] and restrictions on those convicted of
      felonies, see, e.g., Application of Ferguson, 

, 1043, 

, 176 (Super. Ct. 1968); Danielson v. 

, 44 N.W.2d at 486; State ex rel. Eaton v. Schmahl, 

, 220, 

(1918) (per curiam).

US Term 

.

                                           -18-
       Furthermore, the Court found that indirect attempts to modify Congressional
qualifications were equally infirm. Although the Arkansas Amendment did not prohibit
incumbents from service in Congress, the Court rejected the petitioner's contention that
the Arkansas Amendment did not impose an impermissible qualification because
incumbents could still be elected as write-in candidates. See 

The Court
determined that States cannot achieve by indirect means what is constitutionally
prohibited by direct means. See 

To identify impermissible indirect attempts
to alter qualifications for Congress, the Court devised a two-part test: “[]a state
amendment is unconstitutional when it has the likely effect of handicapping a class of
candidates and has the sole purpose of creating additional qualifications indirectly.” 

       The Missouri Amendment fails US Term Limit’s test. First, the Amendment
specifically targets a distinct class of candidates–those who oppose term limits, refuse
to take the term limits pledge, or fail to do one or more of the actions prescribed by the
Amendment while serving in Congress. This class of candidates is singled out on the
ballot with the damaging labels. The label provisions will have the likely effect of
coercing candidates to support the term limits mandate or removing candidates who fail
to do so by persuading voters not to elect them. As we discussed above, the ballot
labels cast doubt on labeled candidates' ability to represent constituents, since the labels
state that labeled candidates ignore their constituents' wishes. As such, the Missouri
Amendment is likely to handicap labeled candidates' ability to be elected.

      Second, as discussed above, the Missouri Amendment has the sole, expressed
purpose of adding the qualification to congressional service that candidates must have
served fewer than three terms in the House or two terms in the Senate. Sections 15 and
16 of the Missouri Amendment state that the people of Missouri seek to limit the
number of terms of service in Congress to three in the House and two in the Senate.
To attain this goal, the Missouri Amendment requires members of the Missouri
congressional delegation to pursue the Article V amendment process, and it enforces

                                           -19-
this mandate with the threat of the ballot labels. See MO. CONST. art. VIII, § 17. Thus,
adding the term limit qualification is the sole purpose of the Missouri Amendment. The
fact that the Missouri Amendment seeks to do so by compelling members of Congress
from Missouri to initiate, pursue, and support the Article V amendment process does
not change the analysis under US Term Limits, as it is still an indirect attempt to add
a qualification to those listed in the Qualifications Clause. Since the Missouri
Amendment seeks to impose an additional qualification for candidacy for Congress and
does so in a manner which is highly likely to handicap term limit opponents and other
labeled candidates, it fails the US Term Limits test.11 

.

                                    D. ARTICLE V

      Lastly, appellant argues that the district court erred in holding that the Missouri

      11
        Appellant attempts to demonstrate that the Supreme Court has rejected
Qualifications Clause challenges to State election practices, citing Tashjian v.
Republican Party, 

(1986) (Tashjian). However, appellant’s attempt to
draw parallels between Tashjian and the Missouri Amendment fail. Tashjian dealt with
the effect of the Qualifications Clause on the qualification of independent voters to
participate in the Connecticut Republican Party’s primary. The Court stated that the
Framers sought to prevent the disqualification of state voters from voting in federal
elections through the Qualifications Clause. See 

       Appellant would have us extend Tashjian to allow state-imposed qualifications
as long as they do not disqualify state residents from running for Congress; we decline
to do so. Tashjian dealt with the issue of qualification to participate in the political
process as voters. The Supreme Court held that the qualifications clause did not
demand symmetrical qualifications for voters in state and federal elections. The
Missouri Amendment, however, does not deal with the qualification of Missouri voters
to vote in federal elections, but their qualification as candidates in the election.
       Furthermore, appellant’s citation to Tashjian to support the argument that only
direct disqualifications violate the Qualifications Clause has already been rejected by
the Supreme Court in US Term Limits v. Thorton. US Term 

.


                                         -20-
Amendment violates Article V of the United States Constitution, which sets out the
process through which the Constitution may be amended. She contends that the
Missouri Amendment does not alter the Article V process. We disagree.

      Article V of the United States Constitution sets forth the two processes through
which the United States Constitution may be amended. Article V states in relevant
part:

      the Congress, whenever two thirds of both Houses shall deem it
      necessary, shall propose Amendments to this Constitution, or on the
      Application of the Legislatures of two thirds of the several States, shall
      call a Convention for proposing Amendments, which, in either Case, shall
      be valid to all Intents and Purposes, as Part of this Constitution, when
      ratified by the Legislatures of three fourths of the several States, or by
      Conventions in three fourths thereof, as the one or the other Mode of
      Ratification may be proposed by the Congress . . . .

U.S. CONST. art. V. Article V specifically delegates the amendment process to
legislative bodies, not the voters.

        Supreme Court precedent supports the conclusion that the people have a limited,
third-party role in the amendment process. In invalidating an Ohio constitutional
amendment which required ratification of the Eighteenth Amendment by popular
referendum, the Court held that the ratification of a constitutional amendment was a
federal function derived from Article V, which delineates the sole methods for
ratification. See Hawke v. Smith, 

, 230 (1920). In Leser v. Garnett, 

, 137 (1922), the Court held that the ratification of the Nineteenth Amendment
was not subject to state-imposed restrictions on the amendment process. The Court
again determined that state legislatures ratifying constitutional amendments assume a
federal function, which “transcends any limitations sought to be imposed by the people
of a State.” 

envisions legislatures acting as freely deliberative bodies in


                                          -21-
the amendment process and resists any attempt by the people of a state to restrict the
legislatures' actions.

       More recently, two state courts were confronted with voter-initiated attempts to
direct the Article V amendment process. The Supreme Courts of California and
Montana invalidated, on Article V grounds, voter initiatives that compelled the
California and Montana State legislatures to apply to Congress to call a constitutional
convention to consider a balanced budget amendment. See AFL-CIO v. Eu, 

(Cal.1984) (Eu); State ex rel. Harper v. Waltermire, 

(Mont. 1984)
(Waltermire). In each case, the initiative required State legislators to continue in
session without pay if they did not pass the necessary petitions within a specified
period. Both courts determined that such voter-imposed restrictions on legislators’
ability to deliberate the issues independently violated Article V. See 

; 

.

       Appellant maintains that Article V does not prohibit the electorate from directing
elected officials to amend the Constitution. He relies principally on Kimble v.
Swackhamer, 

(1978), to support this contention. In that case then-
Justice Rehnquist, sitting as Circuit Justice, denied an injunction against a non-binding
referendum in Nevada about the Equal Rights Amendment. Justice Rehnquist reasoned
that the referendum did not alter the Article V process because it only served to advise
legislators of the people's wishes and legislators were free to disregard it. See 

       However, the Missouri Amendment is far more than an advisory, non-binding
show of voters’ opinion on term limits. See, e.g., 

; 

; 

; 

;
Petition No. 

. But see 

(holding that
without the ballot labels, the term limit initiative is non-binding and thus permissible
under Kimble). By its own terms, the Missouri Amendment requires Senators and

                                          -22-
Representatives from Missouri to initiate and support the Article V process: "We, the
Voters of Missouri, hereby instruct each member of our congressional delegation to use
all of his or her delegated powers to pass the Congressional Term Limits Amendment."
MO. CONST. art. VIII, § 17(1) (emphasis added); see also 

(interpreting Nebraska term limits initiative to bind members of Congress to "'proceed
on a precise and inflexible course of action'") (quoting 

).
Furthermore, the Missouri Amendment seeks to coerce members of Congress to
comply with this mandate by threatening them with the politically-damaging ballot
labels if they fail to do so. Thus, unlike the Nevada legislators in Kimble, members of
Missouri’s congressional delegation are not free to disregard the instruction embodied
in the Amendment. See, e.g., 

; 

;

; 

; Petition No. 

. But see 

.

       We cannot accept appellant’s argument that the Missouri amendment does not
alter the Article V process. Voter initiatives which seek to coerce legislators into
proposing or ratifying a particular constitutional amendment violate Article V. As
discussed above, the Missouri Amendment’s ballot labels constitute such an attempt
by the voters to directly influence the Article V process by directing Senators and
Representatives from Missouri to support and pursue the proposal and ratification of
a term limits amendment to the United States Constitution.




                                         -23-
                                  III. CONCLUSION

      The record, viewed in the light most favorable to appellant, reveals no genuine
issue of material fact and that appellee is entitled to judgment as a matter of law
because the Missouri Amendment violates the First Amendment, the Speech and
Debate Clause, the Qualifications Clause, and Article V of the United States
Constitution.12


      12
          Judge Hansen dissents from our decision to strike the Missouri Amendment in
its entirety and argues that, instead, we should sever §§ 17-19 and leave the remainder
of the Amendment intact. If we followed Judge Hansen's recommendation, Article VIII
of the Missouri Constitution would state that the people of Missouri seek to amend the
United States Constitution by adding a term limit qualification for Congressional
service. Although there would no longer be a State-imposed punishment for candidates
who fail to support the proposed term limit, the Missouri Constitution would still
contain: (a) a direct attempt by the people to amend the US Constitution and (b) an
attempt by the State and people of Missouri to add a qualification to Article I. Because
we believe that both these attempts are unconstitutional, we cannot follow Judge
Hansen's suggestion, notwithstanding this court's decision in Miller v. Moore, 

(8th Cir. 1999).

        First, as we noted in Part IID, the people are not to play a direct role in the
Article V amendment process. While we agree with Judge Hansen that advisory
communication between the people and their elected officials is permitted, we believe
that the Missouri Amendment constitutes more than such merely advisory
communications, and, as such, is barred by Article V. Assuming for the purposes of
analysis that a Circuit Justice opinion for the Ninth Circuit is binding precedent in the
Eighth Circuit, we believe that Kimble is distinguishable. The referendum in Kimble
was initiated by the Nevada legislature and specifically stated that "the result of the
voting on this question does not place any legal requirement on the legislature or any
of its 

(quoting 1977 Nev. Stats., ch. 174, §§ 3, 5). If the
Missouri Amendment contained similar language, we would agree with Judge Hansen
that it is not coercive. However, in the absence of such language, we believe that the
memorialization in the Missouri Constitution of the people's intent to pass a specific
amendment to the United States Constitution departs from the expressly advisory, non-

                                          -24-
      Accordingly, we affirm the judgment of the district court.

HANSEN, Circuit Judge, concurring in part and dissenting in part.

       I readily concur with Part I of the opinion of the court and with those portions
of Part II which declare the labeling provisions (§§ 17, 18, and 19) of the Missouri
Amendment to be in violation of the Constitution. I write separately, however,
specifically to assert my view that §§ 15 and 16 of the Missouri Amendment are
severable pursuant to § 22 of the Amendment and are not independently
unconstitutional under the court's reasoning in Part II. Because I believe §§ 15 and 16
remain legitimate political expressions of the citizens of Missouri, I must respectfully
dissent from that portion of the court's opinion and judgment which sweeps away the
entirety of the Missouri Amendment.

      In Miller v. Moore, 

, 1126 (8th Cir. 1999), this court recently


binding referendum then-Justice Rehnquist found to be permissible in Kimble and
comes closer to the direct involvement the Supreme Court disallowed in Lesser and
Hawke. See Part IID, above.

       Second, as we noted in Part IIC, states cannot constitutionally add to or alter the
qualifications for federal office. See U.S. Const. art. I. Thus, §§ 15 and 16 are
arguably barred by Article I because they are an attempt by a State to add to or change
the qualifications for service in the United States Congress--as opposed to an Article
V petition for a Constitutional convention from a State legislature to consider amending
the United States Constitution.

       Finally, we refuse to sever the Missouri Amendment on jurisprudential grounds,
because if we choose to sever §§ 17-19, we must also sever portions of § 16 which are
unconstitutional or superfluous in the absence of §§17-19. Such micro-management
of the Missouri Constitution would entangle this court too much in State law issues.
As such, we opt to abstain from such action.


                                          -25-
held, while striking down several sections of a similar Nebraska term limits
amendment, that the section declaring the official position of the citizens of Nebraska
to be that their elected officials should enact a term limits amendment was severable
and constitutional. The principle established in Miller v. Moore is equally applicable
to the Missouri Amendment at issue in this case. Standing alone, §§ 15 and 16 are a
legitimate, nonbinding form of political expression by the citizens of Missouri
explaining their support for a specific term limits amendment to the United States
Constitution.

        The opinion of the court suggests that §§ 15 and 16 standing alone violate Article
V and Article I of the federal Constitution because they are, respectively, "a direct
attempt by the people to amend the US Constitution" and "an attempt by the State and
people of Missouri to add a qualification to Article I." See supra at 24 n.12. With
respect to the latter, I believe the people of Missouri indeed have the absolute right
under Article V to propose in a public pronouncement an addition to or an alteration
of the qualifications for congressional service found in Article I. Once §§ 17 through
19 are struck down, §§ 15 and 16 do not in any way add to or alter the current
qualifications for Missouri's congressional delegation, nor do they affect in any way
federal election procedures. Furthermore, § 15 could not be more explicit when it
states that the purpose of the voter-approved initiative is to "lead to the adoption of the
following U.S. Constitutional Amendment." Therefore, I see nothing unconstitutional
about these efforts (§§ 15 and 16) by the people of Missouri to secure an amendment
to Article I through the Article V process, and nothing in the decision in U.S. Term
Limits, Inc. v. Thornton, 

(1995), suggests otherwise.

       With respect to Article V, the "people" (that is, the citizenry) have more than "a
limited, third party role in the amendment process." See supra at 21. In fact, "We the
People" have at least as important a role in the process of amending the Constitution
as they did in creating it. It was, after all, the "people" who forced the first ten
amendments to be adopted. As the court correctly points out, the people have no

                                           -26-
formal role in the amendment procedures set out in Article V. However, the people
play a crucial, substantive role in the amendment process by bringing political pressure
to bear--through political speech, mobilization, and other activities--on those who under
the Constitution do control the formal procedures. Standing alone, §§ 15 and 16 are
nothing more than the people of the state of Missouri exercising their political right to
petition their elected representatives to enact a term limits amendment to the
Constitution. The only "coercion" involved in this form of political expression is
ordinary garden-variety political pressure, which certainly is not prohibited by the
Constitution. Nothing in §§ 15 and 16 restricts the formal amendment procedures of
Article V, and thus they should not be held to violate the Constitution.

       I know of no precedent that prohibits the people of a state from expressing their
political views through amendments to their state constitution, even if that expression
involves matters of interest to or under the control of federal legislators, so long as the
amendment is advisory and does not coerce elected officials into acting a certain way.
See Kimble v. Swackhamer, 

, 1387-88 (1978) (Rehnquist, Circuit
Justice). The court's opinion attempts to distinguish the principle in Kimble by arguing
that the Missouri Amendment contains no specific language making it clear that it does
not bind representatives. Whether the Amendment specifically states that it is
nonbinding or not, the effect is the same--it is nonbinding. Once the labeling provisions
found in §§ 17 through 19 are struck down, there are no longer any improper penalties
imposed on elected officials and there is no longer an enforcement mechanism other
than through the basic political process. It is true that §§ 15 and 16 still may be
politically persuasive because they represent the views of a majority of the voters who
voted on the issue. Because §§ 15 and 16 standing alone are not binding, however,
they are not unconstitutional and should be allowed to stand as a democratically
determined expression of the political will of the people of Missouri.




                                           -27-
       Finally, I see no reason why upholding §§ 15 and 16 is improper federal court
micro-management of the Missouri Constitution. At most, the last clause of § 16 may
be superfluous, but superfluity does not equal unconstitutionality. Nothing remaining
in § 16 is unconstitutional, and I think the entire section could remain without severing
any part of it. Furthermore, out of respect for the people of Missouri and their Missouri
Constitution, I believe we become less entangled in state law issues by striking down
only those portions of the Missouri Amendment that are clearly unconstitutional.

       Accordingly, I respectfully dissent from that portion of the court's opinion that
strikes down §§ 15 and 16 of the Missouri Amendment.



      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -28-