of their political views. That term limits burden fundamental rights, however, does not end the Court's inquiry. The Court must also determine the severity of the burden that term limits impose on these rights.
The Supreme Court has not articulated a test for determining when a burden is severe. By referring to "reasonable, nondiscriminatory restrictions," Anderson and Burdick hinted at some possible criteria for determining the severity of the burden, but the terms "reasonable" and "nondiscriminatory" are not self-defining.
One year before Anderson, the Supreme Court upheld a Texas provision which prohibited justices of the peace from running for the legislature if they would have to cut short their service as justices of the peace in order to serve in the legislature. Clements v. Fashing, 457 U.S. 957, 968, 73 L. Ed. 2d 508, 102 S. Ct. 2836 (1982). The Court determined that this limitation did not significantly limit ballot access because it imposed, at most, a two-year waiting period on justices of the peace who desired to run for the legislature. Id. at 967-68.
Unlike the restriction at issue in Clements, Proposition 140 imposes a lifetime ban on term-limited legislators from being elected to the legislature. The holding of the Supreme Court in Clements, which found that a brief waiting period does not constitute a significant barrier to candidacy, is not inconsistent with a finding that lifetime term limits impose a serious burden on Plaintiffs' constitutional rights. Indeed, Clements, by emphasizing the short-term nature of the restriction imposed on Texas justices of the peace, lends support to a finding that permanently excluding a class of candidates from the ballot imposes a serious burden on candidates' and voters' rights.
The district court evaluating the constitutionality of Maine's limit on consecutive terms of legislative service offered a related approach for evaluating the severity of the burden imposed by term limits. It observed that there are "two key indicators of when a restriction moves from legitimate to severe: whether the restriction is content based or content neutral, and the extent to which the alternative routes to ballot access minimize the restriction on the plaintiff's rights." League of Women Voters v. Diamond, 923 F. Supp. 266, 269 (D. Me. 1996) (denying preliminary injunction), aff'd, 82 F.3d 546 (1st Cir. 1996). The court concluded that consecutive term limits impose a burden that is "clearly not de minimis" but that is also not sufficient to require strict scrutiny. 923 F. Supp. at 270.
The court justified its conclusion on two grounds. First, it argued that term limits "cannot fairly be characterized as content based" because such provisions do not "distinguish between or select among the range of ideas and political discourse from which voters can choose." Id.
A number of other courts have also emphasized the content neutrality of term limits when finding that they do not impose a severe burden on voters' rights. Eu, 54 Cal. 3d at 519; Roth, 158 Misc. 2d 238, 603 N.Y.S.2d 962 at 971.
Term limits are content neutral in the sense that they do not target candidates on the basis of the views they espouse.
They are not content neutral in another, important sense. Proposition 140 targets legislators with legislative experience. In 1990, approximately 47.83% of the California electorate, and a majority voters in thirty of California's eighty assembly districts, voted against the strict version of term limits imposed by Proposition 140. A portion of the vote against Proposition 140 was cast by voters who desired to retain the ability to vote for experienced candidates.
Proposition 140 prevents this minority from voting for candidates possessing a desired characteristic simply because those candidates possess that characteristic. That characteristic, legislative experience, distinguishes conflicting political views about the best forms of political representation. Term limits skew the electoral process by preventing a significant minority from at least voting for, if not electing, candidates who embody a particular view of political representation that is opposed by the majority. Term limits thus impose a content-based restriction on the ability of voters to vote for the candidates of their choice. See Thorsted v. Gregoire, 841 F. Supp. 1068, 1082 (W.D. Wash. 1994), aff'd on other grounds, 75 F.3d 454 (9th Cir. 1996).
League of Women Voters also stressed that Maine's limit on consecutive terms does not completely foreclose ballot access to incumbents. 923 F. Supp. at 270.
Term-limited legislators could sit out one or more terms and then run again, or they could run for a different office. Id. Proposition 140, in contrast, imposes a lifetime limit of three terms in the Assembly and two terms in the Senate. Eu, 54 Cal. 3d 492 at 506, 816 P.2d 1309, 286 Cal. Rptr. 283. Although term-limited Assembly members may run for other offices, they are absolutely precluded from running for the Assembly. Proposition 140 thus imposes a significantly greater burden on voters' and candidates' rights than the burden imposed by Maine's limit on consecutive terms, which itself was "clearly not de minimis. "
Proposition 140 prevents Plaintiffs from expressing their political preference for candidates with legislative experience. Term limits therefore restrict the ability of certain voters to participate in the electoral process on an equal basis with other voters because of their political preferences for a particular category of candidates or for an individual candidate. In addition, unlike the majority of States that have imposed term limits on State legislators, California's version of term limits imposes a lifetime limit on legislative service. California voters who value legislative experience or a particular candidate are not simply required to defer expressing their preference, they are forever prevented from expressing their preference at the ballot box. See also U.S. Term Limits, 115 S. Ct. at 1870 (congressional term limits disadvantage particular class of candidates); Thorsted, 841 F. Supp. at 1082 (congressional term limits not neutral or nondiscriminatory because they determine outcome, not procedures, of election).
Because lifetime legislative term limits impose a content-based restriction on the eligibility of candidates for legislative office and because they permanently restrict Plaintiffs' ability to vote for their preferred candidates, the Court finds that the legislative term limits provisions of the California Constitution impose a severe burden on Plaintiffs' First and Fourteenth Amendment rights of voting, expression, and association.
C. Importance of the State's Interests in Term Limits
After considering "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate," the Court must "identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by the rule." Anderson, 460 U.S. at 789. The Court must also "consider the extent to which those interests make it necessary to burden [Plaintiffs'] right." Id. The State has identified two general categories of interests that are served by term limits. First, it argues that States have a sovereign right to restructure their political processes and to define the qualifications for important State offices. Second, it contends that term limits advance a variety of interests related to enhancing political accountability and representation.
1. State Sovereignty
a. Gregory v. Ashcroft and the Political Function Cases
The State argues that the Tenth Amendment and Principles of federalism protect its prerogative to determine the structure of government and the qualifications of its officers. The principal case on which the State relies is Gregory v. Ashcroft, 501 U.S. 452, 115 L. Ed. 2d 410, 111 S. Ct. 2395 (1991). In Gregory, the petitioners challenged the legality of a provision of the Missouri Constitution requiring State judges to retire upon reaching the age of seventy. They argued that the mandatory retirement provision violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and the Equal Protection Clause. The Supreme Court, noting the importance of a State's ability to prescribe the qualifications for holding State offices, crafted a "plain statement" rule. Under this rule, the Court would not construe federal employment laws to apply to important State offices absent an unambiguous statement of statutory intent. Gregory, 501 U.S. at 468-70. The Court held that the ADEA does not unambiguously apply to State judges; therefore, mandatory retirement provisions for State judges do not violate the ADEA. Id. at 470. Significantly, the Court did not hold that Congress could not pass legislation governing qualifications for holding important State offices. It simply held that, in the case of the ADEA, Congress had not legislated the retirement age of State judges.
While discussing the significance of a State's ability to define the qualifications for holding important State offices, the Supreme Court observed that,
Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign. 'It is obviously essential to the independence of the States, and to their peace and tranquility, that their power to prescribe the qualifications of their own officers . . . should be exclusive, and free from external interference, except so far as plainly provided by the Constitution of the United States.'