COOK v. GRALIKE et al.

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510 OCTOBER TERM, 2000
Syllabus
COOK v. GRALIKE et al.
certiorari to the united states court of appeals for
the eighth circuit
No. 99–929. Argued November 6, 2000—Decided February 28, 2001
In U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, the Court held that
an Arkansas law prohibiting otherwise eligible congressional candidates
from appearing on the general election ballot if they had already served
two Senate terms or three House terms was an impermissible attempt
to add qualifications to congressional office rather than a permissible
exercise of the State’s Elections Clause power to regulate the “Times,
Places and Manner of holding Elections for Senators and Represen-
tatives,” U. S. Const., Art. I, § 4, cl. 1. In response, Missouri voters
adopted an amendment to Article VIII of their State Constitution de-
signed to bring about a specified “Congressional Term Limits Amend-
ment” to the Federal Constitution. Among other things, Article VIII
“instruct[s]” Missouri Congress Members to use all their powers to pass
the federal amendment; prescribes that “DISREGARDED VOTERS’
INSTRUCTION ON TERM LIMITS” be printed on ballots by the
names of Members failing to take certain legislative acts in support of
the proposed amendment; provides that “DECLINED TO PLEDGE TO
SUPPORT TERM LIMITS” be printed by the names of nonincumbent
candidates refusing to take a “Term Limit” pledge to perform those acts
if elected; and directs the Missouri Secretary of State (Secretary), the
petitioner here, to determine and declare whether either statement
should be printed by candidates’ names. Respondent Gralike, a non-
incumbent House candidate, sued to enjoin petitioner from implement-
ing Article VIII on the ground it violated the Federal Constitution.
The District Court granted Gralike summary judgment, and the Eighth
Circuit affirmed.
Held: Article VIII is unconstitutional. Pp. 518–527.
(a) Because petitioner’s arguments that Article VIII is an exercise of
the people’s right to instruct their representatives reserved by the
Tenth Amendment, as well as a permissible regulation of the “manner”
of electing federal legislators under the Elections Clause, rely on differ-
ent sources of state power, the Court reviews the distinction in kind
between reserved state powers and those delegated to the States by the
Constitution. The Constitution draws a basic distinction between the
powers of the newly created Federal Government and the powers re-
tained by the pre-existing sovereign States. U. S. Term Limits, 514

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511 Cite as: 531 U. S. 510 (2001)
Syllabus
U. S., at 801. On the one hand, such retained powers proceed, not from
the American people, but from the people of the several States. They
remain, after the Constitution’s adoption, what they were before, except
insofar as they are abridged by that instrument. Sturges v. Crownin-
shield, 4 Wheat. 122, 193. On the other hand, the States can exercise
no powers springing exclusively from the National Government’s exist-
ence which the Constitution did not delegate. Pp. 518–519.
(b) Petitioner’s argument that Article VIII is a valid exercise of the
State’s reserved power to give binding instructions to its representa-
tives is unpersuasive for three reasons. First, the historical precedents
on which she relies—concerning the part instructions played in the Sec-
ond Continental Congress, the Constitutional Convention, the early
Congress, the selection of United States Senators before the Seven-
teenth Amendment’s passage, and the ratification of certain federal con-
stitutional amendments—are distinguishable because, unlike Article
VIII, none of petitioner’s examples was coupled with an express legal
sanction for disobedience. Second, countervailing historical evidence is
provided by the fact that the First Congress rejected a proposal to
insert a right of the people “to instruct their representatives” into what
would become the First Amendment. Third, and of decisive signifi-
cance, the means employed to issue the instructions, ballots for congres-
sional elections, are unacceptable unless Article VIII is a permissible
exercise of the State’s power to regulate the manner of holding congres-
sional elections. Pp. 519–522.
(c) The federal offices at stake arise from the Constitution itself. See
U. S. Term Limits, 514 U. S., at 805. Because any state authority to
regulate election to those offices could not precede their very creation
by the Constitution, such power had to be delegated to the States,
rather than reserved under the Tenth Amendment. Id., at 804. No
constitutional provision other than the Elections Clause gives the States
authority over congressional elections. By process of elimination then,
the States may regulate the incidents of such elections, including ballot-
ing, only within the exclusive delegation of their Elections Clause
power. The Court disagrees with petitioner’s argument that Article
VIII is a valid exercise of that power in that it regulates the “manner”
in which elections are held by disclosing information about congressional
candidates. The Clause grants to the States “broad power” to pre-
scribe the procedural mechanisms for holding congressional elections,
e. g., Tashjian v. Republican Party of Conn., 479 U. S. 208, 217, but does
not authorize them to dictate electoral outcomes, to favor or disfavor a
class of candidates, or to evade important constitutional restraints, U. S.
Term Limits, 514 U. S., at 833–834. Article VIII is not a procedural
regulation. It does not control the “manner” of elections, for that term

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512 COOK v. GRALIKE
Syllabus
encompasses matters like notices, registration, supervision of voting,
and other requirements as to procedure and safeguards which experi-
ence shows are necessary to enforce the fundamental right involved.
See, e. g., Smiley v. Holm, 285 U. S. 355, 366. Rather, Article VIII is
plainly designed to favor candidates who are willing to support the par-
ticular form of a term limits amendment set forth in its text and to
disfavor those who either oppose term limits entirely or would prefer a
different proposal. Cf. Anderson v. Celebrezze, 460 U. S. 780, 788, n. 9.
It not only “instruct[s]” Missouri’s congressional Members to promote
the passage of the specified term limits amendment, but also attaches a
concrete consequence to noncompliance—the printing of an adverse
label by the candidate’s name on ballots. The two labels impose sub-
stantial political risk on candidates who fail to comply with Article VIII,
handicapping them at the most crucial stage in the election process—
the instant before the vote is cast, Anderson v. Martin, 375 U. S. 399,
402. And, by directing the citizen’s attention to the single consider-
ation of the candidates’ fidelity to term limits, the labels imply that the
issue is an important—perhaps paramount—consideration in the citi-
zen’s choice. Ibid. Article VIII thus attempts to “dictate electoral
outcomes.” U. S. Term Limits, 514 U. S., at 833–834. Such “regula-
tion” of congressional elections is not authorized by the Elections
Clause. Pp. 522–527.
191 F. 3d 911, affirmed.
Stevens, J., delivered the opinion of the Court, in which Scalia, Ken-
nedy, Ginsburg, and Breyer, JJ., joined, in which Souter, J., joined as
to Parts I, II, and IV, and in which Thomas, J., joined as to Parts I and
IV. Kennedy, J., filed a concurring opinion, post, p. 527. Thomas, J.,
filed an opinion concurring in part and concurring in the judgment, post,
p. 530. Rehnquist, C. J., filed an opinion concurring in the judgment, in
which O’Connor, J., joined, post, p. 530.
James R. McAdams argued the cause for petitioner.
With him on the briefs were Jeremiah W. (Jay) Nixon, At-
torney General of Missouri, James R. Layton, State Solici-
tor, and Tina M. Crow Halcomb and J. Eric Durr, Assistant
Attorneys General.
Jonathan S. Franklin argued the cause for respondents.
With him on the brief were H. Christopher Bartolomucci
and Arthur A. Benson II.
Deputy Solicitor General Underwood argued the cause
for the United States as amicus curiae urging affirmance.

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513 Cite as: 531 U. S. 510 (2001)
Opinion of the Court
With her on the brief were Solicitor General Waxman,
Assistant Attorney General Ogden, Paul R. Q. Wolfson, and
Douglas N. Letter.*
Justice Stevens delivered the opinion of the Court.
In U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779
(1995), we reviewed a challenge to an Arkansas law that pro-
hibited the name of an otherwise eligible candidate for the
United States Congress from appearing on the general elec-
tion ballot if he or she had already served three terms in the
House of Representatives or two terms in the Senate. We
held that the ballot restriction was an indirect attempt to
impose term limits on congressional incumbents that vio-
lated the Qualifications Clauses in Article I of the Constitu-
tion rather than a permissible exercise of the State’s power
to regulate the “Times, Places and Manner of holding Elec-
tions for Senators and Representatives” within the meaning
of Article I, § 4, cl. 1.
In response to that decision, the voters of Missouri
adopted in 1996 an amendment to Article VIII 1 of their State
Constitution designed to lead to the adoption of a specified
“Congressional Term Limits Amendment” to the Federal
Constitution. At issue in this case is the constitutionality of
Article VIII.
*Briefs of amici curiae urging reversal were filed for the State of Ne-
braska by Don Stenberg, Attorney General, and L. Steven Grasz, Deputy
Attorney General; for the Initiative and Referendum Institute by Patrick
T. O’Brien and John M. Boehm; for Missouri Term Limits by Stephen J.
Safranek; and for U. S. PIRG Education Fund by David Jonathan Fine.
Briefs of amici curiae urging affirmance were filed for the James Madi-
son Center for Free Speech by James Bopp, Jr., and Heidi K. Meyer; and
for the League of Women Voters of the United States et al. by Louis R.
Cohen and Jonathan J. Frankel.
Kris W. Kobach, pro se, filed a brief as amicus curiae.
1 We shall follow the parties’ practice of referring to the amendment as
“Article VIII” even though it merely added new §§ 15 through 22 to the
pre-existing article.

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514 COOK v. GRALIKE
Opinion of the Court
I
Article VIII “instruct[s]” each Member of Missouri’s con-
gressional delegation “to use all of his or her delegated pow-
ers to pass the Congressional Term Limits Amendment” set
forth in § 16 of the Article. Mo. Const., Art. VIII, § 17(1).
That proposed amendment would limit service in the United
States Congress to three terms in the House of Representa-
tives and two terms in the Senate.2
Three provisions in Article VIII combine to advance its
purpose. Section 17 prescribes that the statement “DIS-
REGARDED VOTERS’ INSTRUCTION ON TERM LIM-
ITS” be printed on all primary and general ballots adjacent
to the name of a Senator or Representative who fails to take
any one of eight legislative acts in support of the proposed
amendment.3 Section 18 provides that the statement “DE-
2 The full text of the proposed amendment is as follows:
“Congressional Term Limits Amendment
“(a) No person shall serve in the office of United States Representative
for more than three terms, but upon ratification of this amendment no
person who has held the office of the United States Representative or who
then holds the office shall serve for more than two additional terms.
“(b) No person shall serve in the office of United States Senator for
more than two terms, but upon ratification of this amendment no person
who has held the office of United States Senator or who then holds the
office shall serve in the office for more than one additional term.
“(c) Any state may enact by state constitutional amendment longer or
shorter limits than those specified in section ‘a’ or ‘b’ herein.
“(d) This article shall have no time limit within which it must be ratified
to become operative upon the ratification of the legislatures of three-
fourths of the several States.”
3 Section 17(2) provides that the statement shall be printed
“adjacent to the name of any United States Senator or Representative who:
“(a) fails to vote in favor of the proposed Congressional Term Limits
Amendment set forth above when brought to a vote or;
“(b) fails to second the proposed Congressional Term Limits Amend-
ment set forth above if it lacks for a second before any proceeding of the
legislative body or;
“(c) fails to propose or otherwise bring to a vote of the full legislative
body the proposed Congressional Term Limits Amendment set forth
above if it otherwise lacks a legislator who so proposes or brings to a

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Opinion of the Court
CLINED TO PLEDGE TO SUPPORT TERM LIMITS” be
printed on all primary and general election ballots next to
the name of every nonincumbent congressional candidate
who refuses to take a “Term Limit” pledge that commits
the candidate, if elected, to performing the legislative acts
enumerated in § 17.4 And § 19 directs the Missouri Secre-
tary of State to determine and declare, pursuant to §§ 17 and
18, whether either statement should be printed alongside the
name of each candidate for Congress.5
vote of the full legislative body the proposed Congressional Term Limits
Amendment set forth above or;
“(d) fails to vote in favor of all votes bringing the proposed Congres-
sional Term Limits Amendment set forth above before any committee or
subcommittee of the respective house upon which he or she serves or;
“(e) fails to reject any attempt to delay, table or otherwise prevent a
vote by the full legislative body of the proposed Congressional Term Lim-
its Amendment set forth above or;
“(f) fails to vote against any proposed constitutional amendment that
would establish longer term limits than those in the proposed Congres-
sional Term Limits Amendment set forth above regardless of any other
actions in support of the proposed Congressional Term Limits Amendment
set forth above or;
“(g) sponsors or cosponsors any proposed constitutional amendment or
law that would increase term limits beyond those in the proposed Congres-
sional Term Limits Amendment set forth above or;
“(h) fails to ensure that all votes on Congressional Term Limits are
recorded and made available to the public.”
4 The pledge, contained in § 18(3), reads:
“I support term limits and pledge to use all my legislative powers to
enact the proposed Constitutional Amendment set forth in the Term Lim-
its Act of 1996. If elected, I pledge to vote in such a way that the designa-
tion ‘DISREGARDED VOTERS’ INSTRUCTION ON TERM LIMITS’
will not appear adjacent to my name.”
5 Section 19(5) permits a voter to appeal to the Missouri Supreme Court
a determination that a statement should not be placed next to a candidate’s
name, and § 19(6) allows a candidate to appeal to the State’s highest court
a determination that such a statement should be printed. In either case,
clear and convincing evidence is required to demonstrate that the state-
ment does not belong on the ballot adjacent to the candidate’s name.
The remainder of Article VIII provides for automatic repeal of the Arti-
cle should the specified Congressional Term Limits Amendment be rati-

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516 COOK v. GRALIKE
Opinion of the Court
Respondent Don Gralike was a nonincumbent candidate
for election in 1998 to the United States House of Repre-
sentatives from Missouri’s Third Congressional District. A
month after Article VIII was amended, Gralike brought
suit 6 in the United States District Court for the Western
District of Missouri to enjoin petitioner, the Secretary of
State of Missouri, from implementing the Article, which the
complaint alleges violates several provisions of the Federal
Constitution.
The District Court decided the case on the pleadings,
granting Gralike’s motion for summary judgment. The
court first held that Article VIII contravened the Qualifica-
tions Clauses of Article I of the Federal Constitution because
it “has the sole purpose of creating additional qualifications
for Congress indirectly and has the likely effect of handicap-
ping a class of candidates for Congress.” 996 F. Supp. 917,
920 (1998); see 996 F. Supp. 901, 905–909 (1998). The court
further held that Article VIII places an impermissible bur-
den on the candidates’ First Amendment right to speak
freely on the issue of term limits by “punish[ing] candidates
for speaking out against term limits” through putting “nega-
tive words next to their names on the ballot,” and by “us[ing]
the threat of being disadvantaged in the election to coerce
candidates into taking a position on the term limits issue.”
996 F. Supp., at 910; see 996 F. Supp., at 920. Lastly, the
court found Article VIII to be an indirect and unconstitu-
tional attempt by the people of Missouri to interject them-
selves into the amending process authorized by Article V of
the Federal Constitution. In doing so, the court endorsed
the reasoning of other decisions invalidating provisions simi-
fied, § 20; exclusive jurisdiction of challenges to the Amendment in the
Supreme Court of Missouri, § 21; and severance of “any portion, clause, or
phrase” of Article VIII that is declared invalid, § 22.
6 Although Gralike intended to run for Congress when he filed suit,
under Missouri law he could not formally file a declaration for candidacy
until February 1998. App. 25–26.

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lar to Article VIII on the ground that negative ballot desig-
nations “place an undue influence on the legislator to vote
in favor of term limits rather than exercise his or her own
independent judgment as is contemplated by Article V.”
996 F. Supp., at 916; see 996 F. Supp., at 920.7 Accordingly,
the court permanently enjoined petitioner from enforcing
§§ 15 through 19 of Article VIII.
The United States Court of Appeals for the Eighth Circuit
affirmed.8 Like the District Court, it found that Article
VIII “threatens a penalty that is serious enough to compel
candidates to speak—the potential political damage of the
ballot labels”; “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 la-
beled candidates”; and “coerce[s] legislators into proposing
or ratifying a particular constitutional amendment” in viola-
tion of Article V. 191 F. 3d 911, 918, 924, 925 (1999). The
Court of Appeals also observed that, contrary to the Speech
or Debate Clause in Art. I, § 6, cl. 1, of the Federal Consti-
tution, Article VIII “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.” 191 F. 3d, at 922.9
7 See League of Women Voters of Me. v. Gwadosky, 966 F. Supp. 52
(Me. 1997); Donovan v. Priest, 326 Ark. 353, 931 S. W. 2d 119 (1996).
8 While the appeal was pending, respondent Gralike withdrew from the
1998 election and respondent Harmon, a nonincumbent candidate in the
2000 Republican congressional primary in the Seventh District of Mis-
souri, intervened as an appellee. In view of Harmon’s participation, there
is no contention that this case is moot. See Storer v. Brown, 415 U. S.
724, 737, n. 8 (1974).
9 Although Judge Hansen, dissenting in part, thought that §§ 17 through
19 should be severed, leaving the rest of Article VIII intact, the majority
declined to do so. 191 F. 3d, at 926, n. 12. Petitioner does not contend
here that any parts of Article VIII should be severed if found unconstitu-
tional, but rather urges us to uphold the provision “in its entirety.” Reply
Brief for Petitioner 1–2.

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518 COOK v. GRALIKE
Opinion of the Court
Although the Court of Appeals’ decision is consistent with
the views of other courts that have passed on similar voter
initiatives,10 the importance of the case prompted our grant
of certiorari. 529 U. S. 1065 (2000).
II
Article VIII furthers the State’s interest in adding a
term limits amendment to the Federal Constitution in two
ways. It encourages Missouri’s congressional delegation to
support such an amendment in order to avoid an unfavorable
ballot designation when running for reelection. And it en-
courages the election of representatives who favor such an
amendment. Petitioner argues that Article VIII is an exer-
cise of the “right of the people to instruct” their representa-
tives reserved by the Tenth Amendment,11 and that it is a
permissible regulation of the “manner” of electing federal
legislators within the authority delegated to the States by
the Elections Clause, Art. I, § 4, cl. 1.12 Because these two
arguments rely on different sources of state power, it is
10 See Miller v. Moore, 169 F. 3d 1119 (CA8 1999) (Nebraska initiative
invalidated on Article V and right-to-vote grounds); Barker v. Hazeltine,
3 F. Supp. 2d 1088 (SD 1998) (South Dakota initiative invalidated on
Article V, First Amendment, Speech or Debate Clause, and due process
grounds); League of Women Voters of Me. v. Gwadosky, 966 F. Supp. 52
(Me. 1997) (Maine initiative invalidated on Article V grounds); Bramberg
v. Jones, 20 Cal. 4th 1045, 978 P. 2d 1240 (1999) (California initiative invali-
dated on Article V grounds); Morrissey v. State, 951 P. 2d 911 (Colo. 1998)
(Colorado initiative invalidated on Article V and Guarantee Clause
grounds); Simpson v. Cenarrusa, 130 Idaho 609, 944 P. 2d 1372 (1997)
(Idaho initiative invalidated on Speech or Debate Clause and state consti-
tutional grounds, but did not violate Article V); Donovan v. Priest, 326
Ark. 353, 931 S. W. 2d 119 (1996) (in preelection challenge, Arkansas initia-
tive invalidated on Article V grounds); In re Initiative Petition No. 364,
930 P. 2d 186 (Okla. 1996) (Oklahoma initiative invalidated on Article V
and state constitutional grounds).
11 Brief for Petitioner 25, and n. 37; see Reply Brief for Petitioner 4.
12 Brief for Petitioner 28, 38; Reply Brief for Petitioner 4, 8.

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appropriate at the outset to review the distinction in kind
between powers reserved to the States and those delegated
to the States by the Constitution.
As we discussed at length in U. S. Term Limits, the Con-
stitution “draws a basic distinction between the powers of
the newly created Federal Government and the powers re-
tained by the pre-existing sovereign States.” 514 U. S., at
801. On the one hand, in the words of Chief Justice Mar-
shall, “it was neither necessary nor proper to define the pow-
ers retained by the States. These powers proceed, not from
the people of America, but from the people of the several
States; and remain, after the adoption of the constitution,
what they were before, except so far as they may be
abridged by that instrument.” Sturges v. Crowninshield, 4
Wheat. 122, 193 (1819). The text of the Tenth Amendment
delineates this principle:
“The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.”
On the other hand, as Justice Story observed, “the states
can exercise no powers whatsoever, which exclusively spring
out of the existence of the national government, which the
constitution did not delegate to them.” 1 Commentaries on
the Constitution of the United States § 627 (3d ed. 1858)
(hereinafter Story). Simply put, “[n]o state can say, that it
has reserved, what it never possessed.” Ibid.
III*
To be persuasive, petitioner’s argument that Article VIII
is a valid exercise of the State’s reserved power to give bind-
ing instructions to its representatives would have to over-
come three hurdles. First, the historical precedents on
*Justice Souter does not join this Part of the Court’s opinion.

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520 COOK v. GRALIKE
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which she relies for the proposition that the States have such
a reserved power are distinguishable. Second, there is
countervailing historical evidence. Third, and of decisive
significance, the means employed to issue the instructions,
ballots for congressional elections, are unacceptable unless
Article VIII is a permissible exercise of the State’s power to
regulate the manner of holding elections for Senators and
Representatives. Only a brief comment on the first two
points is necessary.
Petitioner relies heavily on the part instructions played in
the Second Continental Congress, the Constitutional Con-
vention, the early Congress, the selection of United States
Senators before the passage of the Seventeenth Amendment,
and the ratification of certain federal constitutional amend-
ments.13 However, unlike Article VIII, none of petitioner’s
examples was coupled with an express legal sanction for dis-
obedience.14 At best, as an amicus curiae for petitioner
points out, and as petitioner herself acknowledges, such his-
torical instructions at one point in the early Republic may
have had “de facto binding force” because it might have been
“political suicide” not to follow them.15 This evidence falls
short of demonstrating that either the people or the States
13 Brief for Petitioner 10–17.
14 For example, the Provincial Congress of North Carolina passed the
following instruction on April 12, 1776: “Resolved, That the Delegates for
this Colony in the Continental Congress be empowered to concur with the
Delegates of the other Colonies in declaring Independency, and forming
foreign alliances, reserving to this Colony the sole and exclusive right of
forming a Constitution and Laws for this Colony . . . .” 5 American Ar-
chives 860 (P. Force ed. 1844).
15 Brief for Professor Kris W. Kobach as Amicus Curiae 5, 13; see Brief
for Petitioner 14, n. 13. But see 1 Annals of Cong. 744 (1789) (remarks of
Rep. Wadsworth) (“I have known, myself, that [instructions] have been
disobeyed, and yet the representative was not brought to account for it;
on the contrary, he was caressed and re-elected, while those who have
obeyed them, contrary to their private sentiments, have ever after been
despised for it”).

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had a right to give legally binding, i. e., nonadvisory, instruc-
tions to their representatives that the Tenth Amendment re-
served, much less that such a right would apply to federal
representatives. See U. S. Term Limits, Inc. v. Thornton,
514 U. S., at 802 (Tenth Amendment “could only ‘reserve’
that which existed before”); cf. McCulloch v. Maryland, 4
Wheat. 316, 430 (1819) (rejecting argument that States had
reserved power to tax corporations chartered by Congress
because an “original right to tax” such federal entities
“never existed”).
Indeed, contrary evidence is provided by the fact that the
First Congress rejected a proposal to insert a right of the
people “to instruct their representatives” into what would
become the First Amendment. 1 Annals of Cong. 732
(1789). The fact that the proposal was made suggests that
its proponents thought it necessary, and the fact that it was
rejected by a vote of 41 to 10, id., at 747, suggests that we
should give weight to the views of those who opposed the
proposal. It was their view that binding instructions would
undermine an essential attribute of Congress by eviscerating
the deliberative nature of that National Assembly. See,
e. g., id., at 735 (remarks of Rep. Sherman) (“[W]hen the peo-
ple have chosen a representative, it is his duty to meet others
from the different parts of the Union, and consult, and agree
with them to such acts as are for the general benefit of the
whole community. If they were to be guided by instruc-
tions, there would be no use in deliberation; all that a man
would have to do, would be to produce his instructions, and
lay them on the table, and let them speak for him”). As a
result, James Madison, then a Representative from Virginia,
concluded that a right to issue binding instructions would
“run the risk of losing the whole system.” Id., at 739; see
also id., at 735 (remarks of Rep. Clymer) (proposed right to
give binding instructions was “a most dangerous principle,
utterly destructive of all ideas of an independent and deliber-

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522 COOK v. GRALIKE
Opinion of the Court
ative body, which are essential requisites in the Legislatures
of free Governments”).16
In any event, even assuming the existence of the reserved
right that petitioner asserts (and that Article VIII falls
within its ambit), the question remains whether the State
may use ballots for congressional elections as a means of giv-
ing its instructions binding force.
IV
The federal offices at stake “aris[e] from the Constitution
itself.” U. S. Term Limits, Inc. v. Thornton, 514 U. S., at
805. Because any state authority to regulate election to
those offices could not precede their very creation by the
Constitution, such power “had to be delegated to, rather than
reserved by, the States.” Id., at 804. Cf. 1 Story § 627 (“It
is no original prerogative of state power to appoint a repre-
sentative, a senator, or president for the union”). Through
the Elections Clause, the Constitution delegated to the
States the power to regulate the “Times, Places and Manner
of holding Elections for Senators and Representatives,” sub-
ject to a grant of authority to Congress to “make or alter
such Regulations.” Art. I, § 4, cl. 1; see United States v.
Classic, 313 U. S. 299, 315 (1941). No other constitutional
16 Of course, whether the members of a representative assembly should
be bound by the views of their constituents, or by their own judgment, is
a matter that has been the subject of debate since even before the Federal
Union was established. For instance, in his classic speech to the electors
of Bristol, Edmund Burke set forth the latter view:
“To deliver an opinion is the right of all men; that of constituents is a
weighty and respectable opinion, which a representative ought always to
rejoice to hear; and which he ought always most seriously to consider.
But authoritative instructions; mandates issued, which the member is
bound blindly and implicitly to obey, to vote, and to argue for, though
contrary to the clearest conviction of his judgment and conscience, these
are things utterly unknown to the laws of this land, and which arise from
a fundamental mistake of the whole order and tenor of our constitution.”
The Speeches of the Right Hon. Edmund Burke 130 (J. Burke ed. 1867).

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523 Cite as: 531 U. S. 510 (2001)
Opinion of the Court
provision gives the States authority over congressional elec-
tions, and no such authority could be reserved under the
Tenth Amendment. By process of elimination, the States
may regulate the incidents of such elections, including ballot-
ing, only within the exclusive delegation of power under the
Elections Clause.
With respect to the Elections Clause, petitioner argues
that Article VIII “merely regulates the manner in which
elections are held by disclosing information about congres-
sional candidates.” 17 As such, petitioner concludes, Article
VIII is a valid exercise of Missouri’s delegated power.
We disagree. To be sure, the Elections Clause grants to
the States “broad power” to prescribe the procedural mecha-
nisms for holding congressional elections. Tashjian v. Re-
publican Party of Conn., 479 U. S. 208, 217 (1986); see also
Smiley v. Holm, 285 U. S. 355, 366 (1932) (“It cannot be
doubted that these comprehensive words embrace authority
to provide a complete code for congressional elections”).
Nevertheless, Article VIII falls outside of that grant of au-
thority. As we made clear in U. S. Term Limits, “the Fram-
ers understood the Elections Clause as a grant of authority
to issue procedural regulations, and not as a source of power
to dictate electoral outcomes, to favor or disfavor a class of
candidates, or to evade important constitutional restraints.”
514 U. S., at 833–834. Article VIII is not a procedural regu-
lation. It does not regulate the time of elections; it does
not regulate the place of elections; nor, we believe, does it
regulate the manner of elections.18 As to the last point,
Article VIII bears no relation to the “manner” of elections
as we understand it, for in our commonsense view that term
encompasses matters like “notices, registration, supervision
of voting, protection of voters, prevention of fraud and cor-
17 Brief for Petitioner 28; see also id., at 38.
18 Petitioner once shared our belief, when, in deposition testimony before
the District Court, she admitted that Article VIII does not regulate the
time, place, or manner of elections. App. 58.

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524 COOK v. GRALIKE
Opinion of the Court
rupt practices, counting of votes, duties of inspectors and
canvassers, and making and publication of election returns.”
Smiley, 285 U. S., at 366; see also U. S. Term Limits, Inc. v.
Thornton, 514 U. S., at 833. In short, Article VIII is not
among “the numerous requirements as to procedure and
safeguards which experience shows are necessary in order
to enforce the fundamental right involved,” Smiley, 285
U. S., at 366, ensuring that elections are “fair and honest,”
and that “some sort of order, rather than chaos, is to accom-
pany the democratic process,” Storer v. Brown, 415 U. S. 724,
730 (1974).
Rather, Article VIII is plainly designed to favor candi-
dates who are willing to support the particular form of a
term limits amendment set forth in its text and to disfavor
those who either oppose term limits entirely or would prefer
a different proposal. Cf. Anderson v. Celebrezze, 460 U. S.
780, 788, n. 9 (1983) (“We have upheld generally applicable
and evenhanded [ballot access] restrictions that protect
the integrity and reliability of the electoral process itself ”).
As noted, the state provision does not just “instruct” each
member of Missouri’s congressional delegation to promote in
certain ways the passage of the specified term limits amend-
ment. It also attaches a concrete consequence to noncom-
pliance—the printing of the statement “DISREGARDED
VOTERS’ INSTRUCTIONS ON TERM LIMITS” by the
candidate’s name on all primary and general election ballots.
Likewise, a nonincumbent candidate who does not pledge to
follow the instruction receives the ballot designation “DE-
CLINED TO PLEDGE TO SUPPORT TERM LIMITS.”
In describing the two labels, the courts below have em-
ployed terms such as “pejorative,” “negative,” “derogatory,”
“ ‘intentionally intimidating,’ ” “particularly harmful,” “polit-
ically damaging,” “a serious sanction,” “a penalty,” and “of-
ficial denunciation.” 191 F. 3d, at 918, 919, 922, 925; 996
F. Supp., at 908; see id., at 910, 916. The general counsel to

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Opinion of the Court
petitioner’s office, no less, has denominated the labels as “the
Scarlet Letter.” App. 34–35. We agree with the sense of
these descriptions. They convey the substantial political
risk the ballot labels impose on current and prospective con-
gressional members who, for one reason or another, fail to
comply with the conditions set forth in Article VIII for pass-
ing its term limits amendment. Although petitioner now
claims that the labels “merely” inform Missouri voters about
a candidate’s compliance with Article VIII, she has acknowl-
edged under oath that the ballot designations would handi-
cap candidates for the United States Congress. Id., at 66.
To us, that is exactly the intended effect of Article VIII.
Indeed, it seems clear that the adverse labels handicap
candidates “at the most crucial stage in the election proc-
ess—the instant before the vote is cast.” Anderson v. Mar-
tin, 375 U. S. 399, 402 (1964). At the same time, “by direct-
ing the citizen’s attention to the single consideration” of the
candidates’ fidelity to term limits, the labels imply that the
issue “is an important—perhaps paramount—consideration
in the citizen’s choice, which may decisively influence the citi-
zen to cast his ballot” against candidates branded as unfaith-
ful. Ibid. While the precise damage the labels may exact
on candidates is disputed between the parties, the labels
surely place their targets at a political disadvantage to un-
marked candidates for congressional office.19 Thus, far from
19 That much, apparently, also seemed clear to many Members of Con-
gress operating under Article VIII or similar label laws adopted by other
States, who consequently tailored their behavior to avoid the ballot desig-
nations. For example, in 1997, the House of Representatives voted on 11
different proposals to adopt a term limits amendment to the Constitution;
7 of those proposals were dictated by voter initiatives in 7 different States.
Representative Blunt of Missouri introduced the Article VIII version to
“ensure that members of the Missouri delegation have the ability to vote
for language that meets a verbatim test of [the] Missouri Amendment”
and thereby avoid “the scarlet letter provision.” 143 Cong. Rec. H494
(Feb. 12, 1997). However, because each of the state initiatives provided

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526 COOK v. GRALIKE
Opinion of the Court
regulating the procedural mechanisms of elections, Article
VIII attempts to “dictate electoral outcomes.” U. S. Term
Limits, Inc. v. Thornton, 514 U. S., at 833–834. Such “regu-
lation” of congressional elections simply is not authorized by
the Elections Clause.20
a sanction similar to the ballot labels included in Article VIII, some Repre-
sentatives explained that they were constrained to vote only for the ver-
sion endorsed by the voters of their States, and to vote against differing
versions proposed by congressional members from other States, even
though they were supportive of term limits generally. See, e. g., id., at
H486 (remarks of Rep. Hutchinson) (“I will vote against the bill of the
gentleman from Florida [Mr. McCollum], not because I am opposed to term
limits but because this particular resolution does not comply with the term
limit instructions approved by the voters and the people of Arkansas”);
id., at H490 (remarks of Rep. Crapo) (“Last Congress I supported the
McCollum term limits bill that, as I said, supported a 12-year term limit.
However, in this Congress I must oppose this bill because of the initiative
passed by the people of the State of Idaho which requires me to oppose
any term limits measure that does not have the same set of term limit
conditions that are included in the initiative that was passed in the State”).
As Representative Frank of Massachusetts put it, “[e]very State’s Mem-
bers get to vote on their State’s term limits so they make them feel better
and they do not get the scarlet letter.” Id., at H487. Consequently, the
most popular proposal for such an amendment, that of Representative Mc-
Collum of Florida, received 217 votes, 10 fewer than it had in the preced-
ing Congress. Id., at H511. As for the Missouri version, it suffered a
353-to-72 defeat. Id., at H497.
20 At the margins, the parties have fought over whether the Elections
Clause is even applicable because it is a grant of power to “each State by
the Legislature thereof ” and Article VIII is the product of referendum.
Compare Brief for Petitioner 38, n. 46, with Brief for Respondents 12–13,
n. 8. Of course, “[w]herever the term ‘legislature’ is used in the Constitu-
tion, it is necessary to consider the nature of the particular action in view.”
Smiley v. Holm, 285 U. S. 355, 366 (1932). Nevertheless, we need not
delve into this inquiry, as it is clear, for the reasons stated in the text,
that Article VIII is not authorized by the Elections Clause.
In discussing the Elections Clause issue, respondents have also relied
in part on First Amendment cases upholding “time, place, and manner”
regulations of speech. Brief for Respondents 13–14. Although the Elec-
tions Clause uses the same phrase as that branch of our First Amendment

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527 Cite as: 531 U. S. 510 (2001)
Kennedy, J., concurring
Accordingly, the judgment of the Court of Appeals is
affirmed.
It is so ordered.
Justice Kennedy, concurring.
I join the opinion of the Court, holding § 15 et seq. of Arti-
cle VIII of the Missouri Constitution violative of the Consti-
tution of the United States. It seems appropriate, however,
to add these brief observations with respect to Part III of
the opinion. The Court does not say the States are disabled
from requesting specific action from Congress or from ex-
pressing their concerns to it. As the Court holds, however,
the mechanism the State seeks to employ here goes well be-
yond this prerogative.
A State is not permitted to interpose itself between the
people and their National Government as it seeks to do here.
Whether a State’s concern is with the proposed enactment
of a constitutional amendment or an ordinary federal statute
it simply lacks the power to impose any conditions on the
election of Senators and Representatives, save neutral provi-
sions as to the time, place, and manner of elections pursuant
to Article I, § 4. As the Court observed in U. S. Term Lim-
its, Inc. v. Thornton, 514 U. S. 779 (1995), the Elections
Clause is a “grant of authority to issue procedural regula-
tions,” and not “a source of power to dictate electoral out-
comes, to favor or disfavor a class of candidates, or to evade
important constitutional restraints.” Id., at 833–834. The
Elections Clause thus delegates but limited power over fed-
eral elections to the States. Id., at 804. The Court rules,
as it must, that the amendments to Article VIII of the Mis-
souri Constitution do not regulate the time or place of fed-
eral elections; rather, those provisions are an attempt to con-
trol the actions of the State’s congressional delegation.
jurisprudence, it by no means follows that such cases have any relevance
to our disposition of this case.

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528 COOK v. GRALIKE
Kennedy, J., concurring
The dispositive principle in this case is fundamental to the
Constitution, to the idea of federalism, and to the theory of
representative government. The principle is that Senators
and Representatives in the National Government are re-
sponsible to the people who elect them, not to the States in
which they reside. The Constitution was ratified by Con-
ventions in the several States, not by the States themselves,
U. S. Const., Art. VII, a historical fact and a constitutional
imperative which underscore the proposition that the Consti-
tution was ordained and established by the people of the
United States. U. S. Const., preamble. The idea of federal-
ism is that a National Legislature enacts laws which bind
the people as individuals, not as citizens of a State; and, it
follows, freedom is most secure if the people themselves, not
the States as intermediaries, hold their federal legislators to
account for the conduct of their office. If state enactments
were allowed to condition or control certain actions of fed-
eral legislators, accountability would be blurred, with the
legislators having the excuse of saying that they did not act
in the exercise of their best judgment but simply in conform-
ance with a state mandate. As noted in the concurring opin-
ion in Thornton, “[n]othing in the Constitution or The Feder-
alist Papers . . . supports the idea of state interference with
the most basic relation between the National Government
and its citizens, the selection of legislative representatives.”
514 U. S., at 842. Yet that is just what Missouri seeks to do
through its law—to wield the power granted to it by the
Elections Clause to handicap those who seek federal office
by affixing pejorative labels next to their names on the ballot
if they do not pledge to support the State’s preferred position
on a certain issue. Neither the design of the Constitution
nor sound principles of representative government are con-
sistent with the right or power of a State to interfere with
the direct line of accountability between the National Legis-
lature and the people who elect it. For these reasons Arti-
cle VIII is void.

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529 Cite as: 531 U. S. 510 (2001)
Kennedy, J., concurring
This said, it must be noted that when the Constitution was
enacted, respectful petitions to legislators were an accepted
mode of urging legislative action. See W. Miller, Arguing
About Slavery 105–107 (1995). This right is preserved to
individuals (the people) in the First Amendment. Even if a
State, as an entity, is not itself protected by the Petition
Clause, there is no principle prohibiting a state legislature
from following a parallel course and by a memorial resolution
requesting the Congress of the United States to pay heed to
certain state concerns. From the earliest days of our Re-
public to the present time, States have done so in the context
of federal legislation. See, e. g., 22 Annals of Cong. 153–154
(1811) (reprinting a resolution by the General Assembly of
the Commonwealth of Pennsylvania requesting that the
charter of the Bank of the United States not be renewed);
2000 Ala. Acts 66 (requesting targeted relief for Medicare
cuts); 2000 Kan. Sess. Laws, ch. 186 (urging Congress to
allow state-inspected meat to be shipped in interstate com-
merce). Indeed, the situation was even more complex in the
early days of our Nation, when Senators were appointed by
state legislatures rather than directly elected. At that time,
it appears that some state legislatures followed a practice of
instructing the Senators whom they had appointed to pass
legislation, while only requesting that the Representatives,
who had been elected by the people, do so. See 22 Annals
of Cong., at 153–154. I do not believe that the situation
should be any different with respect to a proposed constitu-
tional amendment, and indeed history bears this out. See,
e. g., 13 Annals of Cong. 95–96 (1803) (reprinting a resolution
from the State of Vermont and the Commonwealth of Massa-
chusetts requesting that Congress propose to the legisla-
tures of the States a constitutional amendment akin to the
Twelfth Amendment). The fact that the Members of the
First Congress decided not to codify a right to instruct legis-
lative representatives does not, in my view, prove that they

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530 COOK v. GRALIKE
Rehnquist, C. J., concurring in judgment
intended to prohibit nonbinding petitions or memorials by
the State as an entity.
If there are to be cases in which a close question exists
regarding whether the State has exceeded its constitutional
authority in attempting to influence congressional action,
this case is not one of them. In today’s case the question
is not close. Here the State attempts to intrude upon the
relationship between the people and their congressional dele-
gates by seeking to control or confine the discretion of those
delegates, and the interference is not permissible.
With these observations, I concur in the Court’s opinion.
Justice Thomas, concurring in Parts I and IV and con-
curring in the judgment.
I continue to believe that, because they possess “reserved”
powers, “the people of the States need not point to any
affirmative grant of power in the Constitution in order to
prescribe qualifications for their representatives in Con-
gress, or to authorize their elected state legislators to do so.”
U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 846 (1995)
(Thomas, J., dissenting). For this reason, I disagree with
the Court’s premise, derived from U. S. Term Limits, that
the States have no authority to regulate congressional elec-
tions except for the authority that the Constitution expressly
delegates to them. See ante, at 522. Nonetheless, the par-
ties conceded the validity of this premise, see Brief for Peti-
tioner 25–26; Brief for Respondents 12–13, and I therefore
concur.
Chief Justice Rehnquist, with whom Justice O’Con-
nor joins, concurring in the judgment.
I would affirm the judgment of the Court of Appeals, but
on the ground that Missouri’s Article VIII violates the First
Amendment to the United States Constitution. Specifically,
I believe that Article VIII violates the First Amendment
right of a political candidate, once lawfully on the ballot, to

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531 Cite as: 531 U. S. 510 (2001)
Rehnquist, C. J., concurring in judgment
have his name appear unaccompanied by pejorative language
required by the State. Our ballot access cases based on
First Amendment grounds have rarely distinguished be-
tween the rights of candidates and the rights of voters. In
Bullock v. Carter, 405 U. S. 134, 143 (1972), we said: “[T]he
rights of voters and the rights of candidates do not lend
themselves to neat separation; laws that affect candidates
always have at least some theoretical, correlative effect on
voters.” And in Anderson v. Celebrezze, 460 U. S. 780, 787
(1983), we said that “voters can assert their preferences only
through candidates or parties or both.” Actions such as the
present one challenging ballot provisions have in most in-
stances been brought by the candidates themselves, and no
one questions the standing of respondents Gralike and Har-
mon to raise a First Amendment challenge to such laws.*
Article I, § 4, provides that “[t]he Times, Places and Man-
ner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature
thereof . . . .” Missouri justifies Article VIII as a “time,
place, and manner” regulation of election. Restrictions of
this kind are valid “provided that they are justified without
reference to the content of the regulated speech, that they
are narrowly tailored to serve a significant governmental in-
terest, and that they leave open ample alternative channels
for communication of the information.” Clark v. Commu-
nity for Creative Non-Violence, 468 U. S. 288, 293 (1984).
Missouri’s Article VIII flunks two of these three require-
ments. Article VIII is not only not content neutral, but it
*The Court of Appeals upheld their First Amendment claim, but based
its reasoning on the view that the ballot statements were “compelled
speech” by the candidate, and therefore ran afoul of cases such as Wooley
v. Maynard, 430 U. S. 705 (1977). I do not agree with the reasoning of
the Court of Appeals. I do not believe a reasonable voter, viewing the
ballot labeled as Article VIII requires, would think that the candidate
in question chose to characterize himself as having “disregarded voters’
instructions” or as “having declined to pledge” to support term limits.

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532 COOK v. GRALIKE
Rehnquist, C. J., concurring in judgment
actually discriminates on the basis of viewpoint because only
those candidates who fail to conform to the State’s position
receive derogatory labels. The result is that the State in-
jects itself into the election process at an absolutely critical
point—the composition of the ballot, which is the last thing
the voter sees before he makes his choice—and does so in
a way that is not neutral as to issues or candidates. The
candidates who are thus singled out have no means of reply-
ing to their designation which would be equally effective
with the voter.
In Anderson v. Martin, 375 U. S. 399 (1964), we held that
a Louisiana statute requiring the designation of a candidate’s
race on the ballot violated the Equal Protection Clause. In
describing the effect of such a designation, the Court said:
“[B]y directing the citizen’s attention to the single consider-
ation of race or color, the State indicates that a candidate’s
race or color is an important—perhaps paramount—consid-
eration in the citizen’s choice, which may decisively influence
the citizen to cast his ballot along racial lines.” Id., at 402.
So, too, here the State has chosen one and only one issue
to comment on the position of the candidates. During the
campaign, they may debate tax reform, Social Security, na-
tional security, and a host of other issues; but when it comes
to the ballot on which one or the other of them is chosen, the
State is saying that the issue of term limits is paramount.
Although uttered in a different context, what we said in Po-
lice Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972), is
equally applicable here: “[Government] may not select which
issues are worth discussing or debating.”
If other Missouri officials feel strongly about the need for
term limits, they are free to urge rejection of candidates who
do not share their view and refuse to “take the pledge.”
Such candidates are able to respond to that sort of speech
with speech of their own. But the State itself may not skew
the ballot listings in this way without violating the First
Amendment.