1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - x 3 REBECCA McDOWELL COOK, : 4 Petitioner, : 5 v. : No. 99-929 6 DON GRALIKE, : 7 Respondent. : 8 - - - - - - - - - - - - - - - x 9 Washington, D.C. 10 Monday, November 6, 2000 11 The above-entitled matter came on for oral 12 argument before the Supreme Court of the United States at 13 10:59 a.m. 14 APPEARANCES: 15 MR. JAMES R. McADAMS, ESQ., Chief Counsel for 16 Litigation, Office of the Attorney General, Jefferson 17 City, MO; on behalf of the Petitioner. 18 MR. JONATHAN S. FRANKLIN, Washington, D.C.; on behalf 19 of the Respondent. 20 MS. BARBARA D. UNDERWOOD, ESQ., Deputy Solicitor 21 General, Department of Justice, Washington, D.C. for 22 United States, as amicus curiae, supporting 23 Respondent 24 25 1 1 C O N T E N T S 2 ORAL ARGUMENT OF PAGE 3 JAMES. R. McADAMS, ESQ. 4 On behalf of the Petitioner 3 5 ORAL ARGUMENT OF 6 JONATHAN S. FRANKLIN, ESQ. 7 On behalf of the Respondent 23 8 BARBARA D. UNDERWOOD, ESQ. 9 On behalf of the Respondent 39 10 REBUTTAL ARGUMENT OF 11 JAMES R. McADAMS, ESQ. 12 On behalf of the Petitioner 46 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 P R O C E E D I N G S 2 [10:59 a.m.] 3 CHIEF JUSTICE REHNQUIST: Mr. McAdams. 4 ORAL ARGUMENT OF JAMES R. McADAMS 5 ON BEHALF OF PETITIONER 6 MR. McADAMS: Mr. Chief Justice, and may it 7 please the Court: There are three Democratic principles 8 at stake in this case. First, the people may instruct 9 their legislators. Second, the people may request 10 information and receive information on the ballot about 11 candidate behavior. And third, the people may put the 12 information called for by Article 8 on the ballot. None 13 of these activities violate any provision of the United 14 States Constitution. 15 With regard to the instruct provision first, 16 this is the issue that divided the panel opinion from the 17 dissent. The instructional provisions are contained in 18 Sections 15, 16, and 17, paragraph one, of Missouri's 19 Article 8. The Eighth Circuit said these instructions 20 violated Article 5 because the voters were third parties 21 to the amendment process. Article 5 doesn't say that. 22 Article 5 provides a specific mechanism by which 23 the Constitution can be amended, and it allocates 24 functions in Article 5 for certain branches of the 25 government to perform. The exclusion of the people from 3 1 any specific one of those functions does not exclude the 2 people from the right to communicate to their 3 representatives that they want the Constitution amended. 4 QUESTION: Mr. McAdams, precisely what is the 5 instruction provision? You say this is the first of the 6 three you are talking about? 7 MR. McADAMS: Yes. This is the first of the 8 three principles that I'm talking about, Your Honor. 9 QUESTION: Okay. 10 MR. McADAMS: And the instruction is physically 11 contained in Section 17, paragraph one of the proposed 12 amendment, and it relates to Sections 15 and 16 of the 13 amendment, Your Honor, Section 15 stating the intention of 14 the Missouri voters, and Section 16 specifically stating 15 the proposed constitutional amendment that the voters 16 support. 17 QUESTION: Well, are you arguing to us now on 18 the assumption that the instruction standing alone has no 19 teeth, no enforcement part, and you are going to get to 20 the enforcement part, the teeth part later? 21 MR. McADAMS: That is correct, Your Honor. 22 Standing alone, the instructions provisions, these three 23 sections, have no teeth. They are a nonbinding 24 instruction. And as we were instructed by then-Justice 25 Rehnquist's opinion in Kimble, the nonbinding instructions 4 1 and advice by the voters to a legislature does not violate 2 Article 5. 3 QUESTION: And this is the provision that Judge 4 Hansen voted to uphold? 5 MR. McADAMS: That is correct. 6 QUESTION: In doing his dissent? 7 MR. McADAMS: That is correct, Your Honor. 8 Although I should say, he did not specifically mention 9 Section 17.1. He only specifically mentioned 15 and 16. 10 The instruction provision of 17.1 would be included in his 11 logic. 12 QUESTION: But part 2 of the Missouri 13 constitutional Article 8, Section 17, is severable, is it? 14 MR. McADAMS: Yes, Your Honor. 15 QUESTION: The ballot proposition? 16 MR. McADAMS: Yes, Your Honor. Pursuant to 17 Section 22 of Article 8, any provision the Court would 18 find unconstitutional in Article 8 is severable from the 19 remainder. 20 QUESTION: And your point is just that 21 disregarding for the moment the provision that has to 22 appear on the ballot by a candidate's name, that the rest 23 of it doesn't violate Article 5? 24 MR. McADAMS: That would be correct, Your Honor. 25 Moving on to the second principle, Missourians 5 1 may request information and may receive information on the 2 ballot about congressional candidate behavior. This Court 3 has indicated and respondents do not contest that states 4 may provide information on the ballot. 5 QUESTION: I think their argument is that it 6 goes beyond information to the point of putting the thumb 7 on the scale, because essentially it uses pejorative 8 language. It's doing more than informing. It's saying, 9 you know, these people have, or this person has violated a 10 trust. And that's more than information. That's a kind 11 of conclusion of fault. That seems to be one of the points 12 of their objection. How do you respond to that? 13 MR. McADAMS: Well, Your Honor, there is nothing 14 that really goes to point three that I made in my opening, 15 that it goes to the specific ballot information and I 16 respond to that by saying, there is nothing that provides 17 voters valuable information that couldn't be used by those 18 voters as the basis for a decision to vote against a 19 candidate. There is no indication in this case, no 20 evidence in this case, that voters will be so overwhelmed 21 by the information contained in the ballot information 22 that they will have the will -- 23 QUESTION: Well, it's not -- I don't know that 24 they have to make the case that the voters are going to be 25 overwhelmed. The case that they are making is simply that 6 1 the voters are being given something more than 2 information. The voters are being given in effect a 3 judgment by the state that the particular candidates have 4 referred to, have done something wrong, and that is more 5 than information. 6 MR. McADAMS: I simply disagree with that, Your 7 Honor. The voters are not being given any more than 8 information. The State of Missouri -- 9 QUESTION: Mr. McAdams, can you point to any 10 other example? There have been examples in briefs 11 certainly of instructions that were given at the time of 12 the constitutional convention, but this has been labelled 13 a Scarlet Letter label. It's not the same as Democrat and 14 Republican. It says, disregarded voters' instruction. It 15 says, declined to pledge to support. Are there any other 16 such labels that go on a ballot at a time when the 17 candidate has no opportunity to answer back? 18 MR. McADAMS: Well, I would say that party 19 labels go on the ballot at a time when voters have, I mean 20 candidates have no opportunity to respond back. The 21 history of the country is such that party labels were 22 outcome determinative in numerous congressional districts, 23 Your Honor. 24 QUESTION: Well, I asked you, you gave the party 25 labels example. Is there anything comparable to 7 1 disregarded voters' instruction on issue X, declined to 2 pledge? 3 MR. McADAMS: Yes, Your Honor. 4 QUESTION: I don't know of anything comparable 5 to that. 6 MR. McADAMS: There is something comparable, 7 Your Honor. In the State of Nebraska, in the early 1900s 8 as the people became disaffected with Congress' 9 unwillingness to amend the Constitution to provide for the 10 direct election of senators, they placed labels on the 11 ballot about whether state legislative candidates -- 12 QUESTION: Oh, but that's state legislative 13 candidates, and that's different. There is no federal 14 Constitutional control, except perhaps there might be a 15 First Amendment argument, but we are talking about here -- 16 whatever the state wants to do vis-a-vis state 17 legislatures is different from what they can do, vis-a-vis 18 people who are in a national body and when they are there, 19 they are representing all the people. 20 MR. McADAMS: Well, First Amendment is one of 21 the claims that they make, Your Honor, and the First 22 Amendment claim would equally be evadable to a situation 23 like the State of Nebraska did. We would not have, for 24 example, a qualifications clause analysis that would apply 25 to the state. 8 1 QUESTION: Well, do you have any other example 2 of someone running for federal office, the House or the 3 Senate, where there is such a label? 4 MR. McADAMS: I believe there -- not exactly 5 like this label, Your Honor. There are situations where 6 federal candidates have, for example, their address 7 disclosed. 8 QUESTION: I think in Arizona, at least at one 9 time, candidates for the Senate and the House of 10 Representatives had to say they were pledged to recall, 11 which meant that if the state legislature recalled them, 12 they would have to resign. Because they all pledged, and 13 of course, it never happened, so -- 14 MR. McADAMS: I was not aware of that example, 15 Your Honor. 16 QUESTION: Excuse me. And that was shown on the 17 ballot in Arizona as well? 18 MR. McADAMS: I'm not aware of that, Your Honor. 19 The rules would seem to provide states, the 20 election clause would seem to provide states an 21 opportunity to place information on the ballot. 22 QUESTION: Well, doesn't the information, given 23 the courts' cases here anyway, have to be generally 24 applicable and evenhanded, like all the regulation because 25 if it's not, that's -- I mean, that phrase comes from a 9 1 case called Anderson, but there are many of like tenor, it 2 seems to me, that if it's not generally applicable and 3 evenhanded, the state, for no legitimate regulatory 4 interest, is biasing the election, which, which hurts the 5 First Amendment rights of all those who happen to think 6 that term limits is not the most important issue in the 7 election, that would prefer the election were decided on 8 the basis of other issues. 9 MR. McADAMS: Well -- 10 QUESTION: Whatever. The economy. The 11 environment. Whatever. 12 MR. McADAMS: There is nothing about providing 13 information that dictates that it is the basis upon which 14 voters will choose. 15 QUESTION: Well, of course, that's generally 16 true, and it's for that reason that when we get down to 17 the ballot itself, which normally, regulation of the 18 ballot is not for information providing purposes. It is 19 for fair vote purposes. And that's why it seems to me that 20 these cases have held when we come down to ballot 21 regulation, what we are interested in is whether the 22 state's regulation is generally applicable and evenhanded. 23 MR. McADAMS: Well, I think Timmons used the 24 phrase reasonable. The state could enact reasonable 25 regulations. 10 1 QUESTION: Yes. Reasonable in terms of such 2 purposes as the integrity of the electoral process, 3 preventing voter confusion, ensuring orderliness, and 4 ensuring fairness. Now, not, I haven't seen anything that 5 says reasonable in terms of providing information about 6 one issue but not other issues. 7 MR. McADAMS: Well, Your Honor, right now, we 8 have a situation where the state only provides information 9 about party affiliation. 10 QUESTION: Party affiliation is not -- the 11 candidate, I take it, voluntarily associates himself with 12 that and wants that on the ballot. 13 MR. McADAMS: Some do and some don't. In the 14 history -- 15 QUESTION: Well, are there instances where the 16 affiliation was put on the ballot over the objection of 17 the candidate? 18 MR. McADAMS: There are no cases in that regard, 19 Your Honor. 20 QUESTION: I suppose in most of the south, until 21 maybe 25 years ago, I'm sure the Republican would not have 22 wanted his name on the ballot. 23 MR. McADAMS: I'm quite certain in the south. 24 QUESTION: For his party affiliation on it. 25 MR. McADAMS: I'm quite certain that is true, 11 1 Your Honor, and I think that's true for third party 2 candidates today as well. In the example that the 3 respondents give about the one time this was done in 4 California, they give an example where a state legislative 5 candidate who had won a plurality in the party primary 6 came back in the run-off election and lost to someone who 7 did not have a label. It seems that what respondents are 8 offended by there is that the party label designation was 9 not the piece of information that controlled the electoral 10 result. 11 QUESTION: You can argue about whether a party 12 label is generally applicable and evenhanded. So my 13 question is, are you accepting the principle, but saying 14 that this label is just as evenhanded as a party label, or 15 are you denying the principle? 16 MR. McADAMS: I'm not denying the principle that 17 the state cannot mislead voters. 18 QUESTION: That wasn't the principle. The 19 principle I'm reading from the cases, which I have said a 20 lot of times, I just want to see if you accept it, 21 generally applicable and evenhanded. 22 MR. McADAMS: And I believe this is generally 23 applicable. 24 QUESTION: You accept the principle and the 25 issue of whether this is evenhanded? 12 1 MR. McADA