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2007 City Council RetreatEdmonds City Council Retreat zoo? Sandy' Chase City CCelomk LaConner Country Inn LaConner, DNA -,-PJrAHt6FMLff-. YX -'%- 'LW& 9 SAGIL AFw, - t - vW PL A.�- N A Wilt. o ti Edmonds City Council Retreat March 23 and 24, 2007 LaConner Country Inn — Two Forks Room 107 S. Second St LaConner, WA Friday Morning- March 23, 2007 ;' l 9:00 to 10:30 a.m.: Work session with City Attorney and City Council. Executive Sessions: Requested by Councilmember Plunkett Request for Public Records Discussion: Requested by Council President Pritchard Olson Council/Mayor/Staff/City Attorney's Roles: Requested by Council President Pritchard Olson Boards and Commission Requested by Council President Pritchard Olson 10:30 to 11:00 a.m.: Discussion with Mayor Haakenson and Council. Staff Arrives 11:00 a.m. Managing our Financial Future Friday, May 23, 2007 -11:00 to 5:00 p.m. Session Overview and Goals a) Increase Understanding of Edmonds Current Financial Position b) Describe Edmonds Future Financial Position c) Discuss Strategies for Managing the City's Future Finances d) Council Sign -Off on Policies to Address Edmonds Financial Future i) Revenue Policies ii) Efficiency Policies iii) Budget Reduction Policies iv) Compensation Policies Edmonds Present Financial Position a) Overview of Current Financial Position b) Positives, Negatives, and Exposure c) Primary Budget Drivers d) General Fund Projection Model Positioning Edmonds for Its Financial Future a) Revenue Options i) 2007 EMS Levy (Tom) ii) City & Levy b) Efficiency Reductions c) Efficiency & Reduction Options i) Best Practice Initiatives: General Operations Medical Coverage (Debi) Bargaining & Compensation (Debi) ii) Budget Reductions d) Council Policy Decisions i) Revenue ii) Efficiency iii) Reductions iv) Compensation 4. Up -Date Strategic Plan to Reflect Council Changes (Saturday Morning?) a) Review Proposed Changes b) Council Approval of 2007-08 Plan Dinner: 6:30 p.m. Saturday Morning — March 24, 2007 9:00 a.in. to 2:00 p-ni. Review Council Input on Managing our Financial Future. --------------------- Compensation Study (Should the City do one — cost?) ---------------------- Candidate Debates — Channel 21 --------------------------------------------------- Discussion of Policy Requiring Establishment of New Zones ---------------- Policy Re What Constitutes Affordable Housing, preservation of trees, etc. Vision — What does the Council want now? ------- —---------------- --------------- Planning Board arid ADB Future Agendas ---- --- - ---- -- Resolution for 4-year University —-------- — ---- ----- --__—__—_—_�____�_ ----------------------------------------Dan Clements ---------------------------------Requester: Council ------------ Requester: Councilmember Plunkett ------------ Requester: Councilmember Plunkett ------------Requester: Councilmember Plunkett ------------Requester: Councilmember Moore Requester: Council President Pritchard Olson Requester: Council President Pritchard Olson 2 POWER, DUTIES AND ROLE OF CITY COUNCIL Sources: RCW 35A.11.220 RCW 35A.12.100 RCW 35A.12.120 RCW 35A.12.170 RCW 35A.12.180 RCW 35A.34.090 Chapter 35A.33 RCW I. Personnel, Staff, and City Council. A. Defines the functions, powers and duties of officers and employees. Example, adopt job descriptions by ordinance. B. Prescribe qualifications or require confirmation by ordinance when no qualifications exist. C. Fix compensation and working conditions. 1. Subject to the collective bargaining obligations 2. Civil service must comply with the State civil service system. D. Prescribe term of appointment by ordinance. (For example, judge, hearing examiner, city attorney.) II. Regulate the affairs of the City by ordinance. A code city under Title 35A may exercise any power not in conflict with the State statute or constitution (limitation to "organic law.") A.. Crimes. Maximum penalties are one year in jail or $5,000. The City may enact civil violations but cannot make a State crime a civil violation within the City. B. Buy, sell, lease, regulate and otherwise provide for public property, structures, streets and other rights -of -way. C. Provide for the rendering of local social, cultural, recreation, governmental or corporate services. 1. Establish and provide for the operation of utilities and municipal services as are "commonly or conveniently rendered by cities/towns." Broadly defined. See Teleprompter v. Issaquah - Cable TV and US v. North Bonneville ("without restriction"). ( WSS655512.DOC;1/00006.900000/1 1 POWER, DUTIES AND ROLE OF CITY COUNCIL Sources: RCW 35A.11.220 RCW 35A.12.100 RCW 35A.12.120 RCW 35A.12.170 RCW 35A.12.180 RCW 35A.34.090 Chapter 35A.33 RCW I. Personnel, Staff, and City Council. A. Defines the functions, powers and duties of officers and employees. Example, adopt job descriptions by ordinance. B. Prescribe qualifications or require confirmation by ordinance when no qualifications exist. C. Fix compensation and working conditions. 1. Subject to the collective bargaining obligations 2. Civil service must comply with the State civil service system. D. Prescribe term of appointment by ordinance. (For example, judge, hearing examiner, city attorney.) II. Regulate the affairs of the City by ordinance. A code city under Title 35A may exercise any power not in conflict with the State statute or constitution (limitation to "organic law.") A.. Crimes. Maximum penalties are one year in jail or $5,000. The City may enact civil violations but cannot make a State crime a civil violation within the City. B. Buy, sell, lease, regulate and otherwise provide for public property, structures, streets and other rights -of -way. C. Provide for the rendering of local social, cultural, recreation, governmental or corporate services. 1. Establish and provide for the operation of utilities and municipal services as are "commonly or conveniently rendered by cities/towns." Broadly defined. See Teleprompter v. Issaquah - Cable TV and US v. North Bonneville ("without restriction"). ( WSS655512.DOC;1/00006.900000/1 1 2. Limitations: a. No gifts or lending of credit; b. Must charge the "true cost" of services to each fund within the City. That is, utilities cannot provide free service to other City functions. D. Exercise the power of eminent domain. E. Tax. The City cannot, however, create taxes but is limited to those tax resources provided by State statute. F. Incur indebtedness within statutory limitations. G. Exercise every governmental power jointly with other cities and counties. H. Set the compensation of elected officers: 1. Cannot reduce during the term of office. 2. May increase the salary of the Mayor unless he casts a tiebreaking vote. 3. Councilmember is entitled "actual and necessary expenses" or per diem. 4. Note issue regarding insurance increases as compensation increases during the term. I. Prescribe rules for the payment of warrants. J. Authorize the division of City into wards. K. Budget. "Prior to a final hearing on the budget, the legislative body or committee thereof shall schedule hearings on the budget" ... and require "the presence of department heads to give information regarding estimates and programs." III. Ceremonial and procedural. A. Designate a mayor pro tem. B. "The City Council shall determine its own rules and order of business and may establish rules for conduct of council meeting and maintenance of order." Any member of the Council may request a role call vote with the ayes and nays recorded. { WSS655512.DOC;1/00006.900000/ } 2 POWER, DUTIES AND ROLE OF MAYOR Sources: Primarily RCW 35A.12.100 and Chapter 35A.33 I. The Mayor is the chief executive and administrative officer of the City. A. He/she has the power to appoint and remove officers and employees. 1. This power is subject to civil service and 2. Union contract. B. The power can be delegated to department heads. C. The Mayor is in charge of all departments and employees. He/she may appoint and remove a chief administrative officer if designated by ordinance. D. He/she sees that all laws and ordinances are "faithfully administered" and all contracts "faithfully kept and performed." 1. To that end he may cause "any legal proceedings" to be instituted and prosecuted 2. "Subject to approval by majority vote of the Council." II. Presides over all meetings of the City Council (when present.) A. May vote only in the case of a tie with respect to matters other than: 1. Passage of an ordinance; 2. The grant or revocation of a franchise or license; 3. Resolution for payment of money. B. The Mayor shall report to the City Council "concerning the affairs of the City and its financial needs." This obligation includes a requirement to make "recommendations for consideration and action." C. Prepare and submit a proposed budget to the City Council. Note that the Mayor does not have to make revisions. Changes to the budget are the prerogative and obligation of the Council. D. Veto. III. The Mayor is the official and ceremonial head of the City. (WSS655512.DOC;1 /00006.900000/ 1 3 CITY ATTORNEY RCW 35A.12.020 A. The City may employ or contract for City Attorney services. B. The City Attorney executes the ordinances passed by the Council under the direction of the Mayor. C. The City Attorney provides legal advice and services to the City in its corporate capacity -- note importance of four votes to the Council to establish policy by ordinance or other direction (such as authorization to institute litigation). D. In event of conflict between Mayor and City Council, the City Attorney represents the Mayor, and City Council has the right to hire counsel. Todd v. Tukwila, 17 Wn. App. 401 (1977). E. City Council can provide for hiring of City Attorney or services by contract, but cannot require that the City Council exclusively direct how legal services will be provided. Mayor and staff are entitled to legal services as needed to perform their duties. AGO 1997, No. 7. { WSS655512.DOC;1/00006.900000/} 4 Page 2 of 5 Wash. AGO 1997 NO 7 Page 1 Wash. AGO 1997 NO 7, 1997 WL 855519 (Wash.A.G.) (Cite as: 1997 WL 855519 (Wash.A.G.)) Office of the Attorney General State of Washington *1 AGO 1997 No. 7 October 17, 1997 CITIES AND TOWNS - LAWYERS - Manner by which optional municipal code city provides for legal services to the city government. 1. Under RCW 35A.12.020, a mayor -council city operation under the optional municipal code may, by charter provision or ordinance, opt either to appoint a city attorney or to procure legal services by contract. 2. Where a code city has determined to obtain legal services by contract, the contract for professional services may specify the term of the contract and may define who will have authority to amend or terminate the agreement, provided that the contract is consistent with any charter provisions or ordinances on the subject. 3. A city council, in entering into a contract with a law firm to provide legal services for the city, may not require that the city council exclusively direct how legal services will be provided; the mayor and other administrative city offices are entitled to obtain legal services as needed for the performances of their duties. The Honorable Mary Margaret Haugen State Senator District 10 435 John A. Cherberg Building PO Box 40482 Olympia, Washington 98504-0482 Dear Senator Haugen: By letter previously acknowledged, you requested our opinion on three questions we paraphrase as follows: 1. Under RCW 35A.12.020, in a mayor -council code city does the city council have sole authority to select a private law firm to provide legal services to the city by contract? 2. If the city council has the sole authority to enter a contract with a law firm, may the contract for professional services state that the city's attorney will serve at the pleasure of the city council, rather than the mayor? 3. If the city council has the sole authority to enter a contract with a law m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://elibraries.westlaw.comlprintlprintstream.aspx?rs=EW 1.0&destination=atp&sv=SPLI... 3/21/2007 Page 3 of 5 Wash. AGO 1997 NO 7 Page 2 Wash. AGO 1997 NO 7, 1997 WL 855519 (Wash.A.G.) (Cite as: 1997 WL 855519 (Wash.A.G.)) firm, may the contract for professional services state that the city's attorney will provide legal services under the direction of the city council, rather than the mayor? BRIEF ANSWER The city council's authority to enter a contract for legal services depends on whether the city charter or city ordinances provide for an appointed officer position for the city's attorney or provide that a contract will be entered. If the city charter or city ordinances provide that legal services shall be obtained by the council through a contract, the charter or ordinances may also state whether the contract can be terminated by the council or the mayor. In the absence of any provision in the charter or ordinances relating to termination of the contract, the city council has broad authority to "contract and be contracted with" in a manner consistent with the state constitution and the general law. Finally, legal services provided pursuant to the contract would be performed at the direction of both the mayor and the council. The city council lacks authority to require that legal services will be provided only at its direction. ANALYSIS *2 Question 1: Under RCW 35A.12.020, in a mayor -council code city does the city council have sole authority to select a private law firm to provide legal services to the city by contract? Under the mayor -council code city form of government, the Legislature has directed that "appointive officers shall be those provided for by charter or ordinance". RCW 35A.12.020. In the same statute, the Legislature has further directed that "(p]rovision shall be made" for the manner in which legal services are obtained. Since the words "provided" and "provision" are used in different parts of the same statute, "it is presumed that the words ... are intended to have the same meaning". Medcalf v. Department of Licensing, 1997 WL 603446, at *6 (Wash. S. Ct. Oct. 2, 1997). Therefore, a city could provide by charter, ordinance or otherwise, how the city will obtain legal counsel. [FN1] RCW 35A.12.020 states: The appointive officers shall be those provided for by charter or ordinance and shall include a city clerk and a chief law enforcement officer. The office of city clerk may be merged with that of a city treasurer, if any, with an appropriate title designated therefor. Provision shall be made for obtaining legal counsel for the city, either by appointment of a city attorney on a full-time or part-time basis, or by any reasonable contractual arrangement for such professional services. The authority, duties and qualifications of all appointive officers shall be prescribed by charter or ordinance, consistent with the provisions of this title, and any amendments thereto, and the compensation of appointive officers shall be prescribed by ordinance: PROVIDED, That the compensation of an appointed municipal judge shall be within applicable statutory limits. RCW 35A.12.020. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://elibraries.westlaw.comlprintlprintstream.aspx?rs=EW 1.0&destination=atD&sv=SPLI... 3/21/2007 Page 4 of 5 Wash. AGO 1997 NO 7 Wash. AGO 1997 NO 7, 1997 WL 855519 (Wash.A.G.) (Cite as: 1997 WL 855519 (Wash.A.G.)) Page 3 As previously noted, the city charter or city ordinances may dictate the general terms for a contract for legal services and in the absence of such direction, the council would have authority to negotiate the terms of the contract. However, this authority must be exercised in a manner consistent with the requirements of state law. King County v. Taxpayers of King County, 132 Wn.2d at 384-387. State law authorizes the obtaining of legal services "for the city". RCW 35A.12.020. Neither the council alone nor the mayor alone constitutes "the city". Rather, RCW 35A.12.010 vests the government of a charter code city, adopting the mayor -council plan of government, in "an elected mayor and an elected council". In this respect and in others, chapter 35A.12 RCW contemplates that the mayor and the city council will act together on behalf of the city. For example, RCW 35A.12.100 states that: [The mayor] shall see that all laws and ordinances are faithfully enforced and that law and order is maintained in the city and shall have general supervision of the administration of city government and all city interests ... He shall see that all contracts and agreements made with the city or for its use and benefit are faithfully kept and performed, and to this end he may cause any legal proceedings to be instituted and prosecuted in the name of the city, subject to approval by majority vote of all members of the council. *3 RCW 35A.12.100. In addition, the mayor is the chief executive and administrative officer of the city. RCW 35A.12.100. That the mayor will require legal services from time to time in fulfilling official duties cannot seriously be questioned. Nothing in chapter 35A.12 RCW authorizes the city council to exercise general supervision over the mayor's performance of these duties. To the contrary, as previously noted, the mayor is an independently elected officer of the city. RCW 35A.12.010. For these reasons we conclude the city council generally lacks authority to contract for the provision of legal services solely under the direction of the city council. In our view, this conclusion is also consistent with case law recognizing that only under very limited circumstances may the councils of other types of municipalities retain legal services at the expense of the municipality, for purposes of representing the council. See State ex rel. Steilaccom Town Council v. Volkmer, 73 Wn. App. 89, 867 P.2d 678 (1994); Tukwila v. Todd, 17 Wn. App. 401, 563 P.2d 223 (1977). We trust this opinion will be of assistance to you. Very truly yours, Christine O. Gregoire Attorney General Anne E. Egeler m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://elibraries.westlaw.comlprintlprintstream.aspx?rs=EW 1.0&destination=atp&sv=SPLI... 3/21/2007 Page 5 of 5 Wash. AGO 1997 NO 7 Page 4 Wash. AGO 1997 NO 7, 1997 WL 855519 (Wash.A.G.) (Cite as: 1997 WL 855519 (Wash.A.G.)) Assistant Attorney General [FN1]. Given the language of RCW 35A.12.020, it seems preferable for a city to handle the legal services issue by charter or ordinance. We do not mean to imply that a city without any charter provision or ordinance is precluded from obtaining legal services through a contract. Wash. AGO 1997 NO 71 1997 WL 855519 (Wash.A.G.) END OF DOCUMENT m 2007 Thomson/West. No Claim to Orig. U.S. Govt. 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(� 4 .� o Q M zo v 0Za cl P N rl r-Ii•-1'� W '� o o W .LI U o U. o. o" U N y sp -cs w O U o o0 id p N o ti O O cd y 4 .� ai o m try Z cd s CUi +� O O, n U cd Q. ccd'L 'U' ' E w v u a. A ;m > Q3 0 1-4 v� 0 P °Q)L,�_• (L) v '' ay C U H a O 0 a 0 u N a 'oto 00 Y 0 2,2 (n N y 0 w rn� 4U u00 M m ai .0 �a a� w E 0 EXECUTIVE SESSIONS �7 r .1 DISCUSSION DRAFT COUNCIL RULES OF PROCEDURE AMENDMENTS 1. Executive Sessions. Executive sessions are limited to the subjects listed in RCW 42.30.110. Executive sessions shall be called and announced in accordance with the procedures established by that statute. The Mayor or chair of the meeting shall request a motion to go into executive session which, if seconded, shall be voted on by the Council. 1.1 The subject matter of executive sessions shall remain confidential in accordance with the requirements of state statute until: 1) the purpose for confidentiality is past (See Council Rule of Procedure regarding release of minutes.) and/or 2) that council determines the subject matter of executive sessions shall become public by a motion and second that executive session discussion matter shall be public and an affirmative vote of the council is achieved at a city council meeting. 1.2 The Council, in its discretion, may set discussion of an executive session topic on the agenda for public council discussion. Such discussion shall be placed on the .regular agenda by the Council President so that the Council and public may have advance notice of the topic and parameters for discussion. Executive session topics may also be placed on the Council agenda at a meeting by motion and vote of the City Council. In that case, the motion shall reference the limitations and parameters of the discussion, if any. 2. Cancellation. Any scheduled meeting or, executive session may be cancelled by Council President or Mayor if a quorum of the Council will not be present or, if in the opinion of the Mayor and/or Council President, there is no reasonable need for the meeting or executive session. Cancellation shall be preceded by informing each member of the Council that the meeting will be cancelled. Notice of cancellation shall be provided by posting on the door of the meeting, and if feasible, by providing notice to those persons who have requested notice of a public meeting in accordance with statute. { WSS627058.DOC;1/00006.900000/) REQUEST FOR PUBLIC RECORDS DISCUSSION 9 C ri CITY CLERK'S OFFICE Requests for Public Records - Procedure for All Departments Edmonds City Code Section 1.20.010 states: "All persons except for city elected officials and city appointed officers or employees desiring to inspect or receive a copy of any public record of the city must make their request to the City Clerk or a designee of the City Clerk on forms specified by the City Clerk. The City Clerk may waive this requirement for governmental agencies requesting courtesy copies of city records for purposes that are nonadversarial to the city." 1. Ask all customers to complete a "Request for Public Records" form when asking for copies of public records (a sample form is attached). A request for public records can be initiated in person, by mail, email, fax, or over the telephone. 2. Date stamp the form once it is received. 3. If the request is for documents that are readily available, of a routine nature, and appropriate to release immediately, please process. It is required by law that we respond to a request for public records within five business da s. Please refer the - request to the City Clerk if more than five days will be needed to respond. The City Clerk will forward a letter requesting additional time. 4. Once the request for records has been completed, fill out the appropriate portions of the form and file the form in your records. Please refer the request to the City Clerk's Office when any of the following factors are involved: ❑ Longer than five days will be required to respond. ❑ Non -routine request o Question about whether or not a document should be released. ❑ Litigation is involved. ❑' More than your own department's records are required. ❑ Any questions or doubts on your part. Reminders: o The city is not required to collect information or organize data to create a record not existing at the time of the request. ❑ The use of lists of individuals for commercial purposes is prohibited by law. ❑ Keep your records and files up-to-date. ❑ Do not keep documents longer than required by the City of Edmonds/Washington State Records Retention Schedules. r n CITY OF EDMONDS 121 5*h Avenue North Edmonds, WA 98020 (425) 775-2525 REQUEST FOR PUBLIC RECORDS PLEASE PRINT CLEARLY Date of Request: Requester Name: Requester Address: Street Suite/Apt. city State Zip Email Address: Phone Number: Request Made: [ ] In Person [ ] In Writing [ ] Telephone [ ] Fax [ ] Email How would you prefer to be notified when the records are available? [ ] In Writing [ ] Telephone [ ] Fax [ ] Email DESCRIPTION OF REQUEST: (Please be as specific as possible with the type of information you are requesting; include address of property, file name or number, owner of property, time period, etc.): I Is the information requested a list of individuals to be used for a mailing list for commercial purposes? ❑ Yes ❑ No If yes, please complete the additional form found on page 3. Signature of Person Making Request Page 1 Revised loos 1. 2. 3. FOR OFFICIAL USE ONLY ACTION ON REQUESTS FOR PUBLIC RECORDS MUST BE TAKEN WITHIN FIVE (5) BUSINESS DAYS Request received by: Department: Action taken: [ ] Request granted. [ ] Acknowledgment. Estimated response date provided. (See No. 4) (] Record denied. (See Nos. 5 & 6) [ ] Record withheld in part. (See Nos. 5 & 6) Request forwarded to attorney for review: [ ] Yes Date Forwarded: _ [ ] No Date: 4. Notification to requester of action taken: Date of Notification: _ [ ] Request granted. [ ] Need for additional time. How long? [ ] Request denied. [ ] Record withheld in part. 5. 'if additional time needed, explain why: 6. If request denied or record withheld in part, name the exemption contained in Chapter 42.56 RCW which authorizes withholding or denial: 7. If request denied or record withheld in part, explain how the exemption applies to this record: FEES 0 - 5 copies free Standard copy charge @ $.15 per page: $ Other (Refer to current Records Index & Fee Schedule) $ TOTAL FEES DUE: $ Receipt No. Date DOCUMENTS PROVIDED: Date ❑ Mailed ❑ Picked Up Page 2 Revised 11106 Note: This form needs to be completed only if the request is for a mailing list of individuals to be used for commercial purposes. EDMONDS PUBLIC RECORDS ACCESS DECLARATION TO RELEASE PUBLIC RECORDS (PRINT NAME) I have requested copies of the following public records: 2. 1 understand that Washington State law, RCW 42.56.070, prohibits the use of lists of individuals for commercial purposes. 3. 1 understand that the use for commercial purposes of said records may also violate the rights of the individuals named therein and may subject me to liability for such commercial use. 4. 1 understand that section 2 and 3 herein apply when I use said records for commercial purposes and when others use said records or copies for same for commercial purposes. I understand that I may be liable in either case. 5. 1 understand that "commercial purposes" means that the person requesting the record intends that the list will be used to communicate with the individuals named in the record for the purpose of facilitating profit expecting activity. 6. Therefore, I do hereby swear and affirm on oath and under penalty of law that I will not use said records for commercial purposes and that further, it is my affirmative duty to prevent others from using said records for commercial purposes. 7. 1 do further swear and affirm on oath and under penalty of law that I will protect and hold harmless, including the costs of defending, the agency and its agents and employees from which I have obtained said records from any and all claims arising either directly or indirectly from the commercial use of said records. Signature Page 3 Revised 11/06 COUNCIL/MAYOR/STAFF/ CITY ATTORNEY ROLES El, Title 2 CITY OFFICIALS AND PERSONNEL Chapters: 2.01 Mayor 2.05 City Attorney 2.06 Indemnification of Employees and Officers 2.10 Confirmation and Duties of City Officers Chapter 2.01 MAYOR Sections: 2.01.010 Duties. 2,01.020 References to mayor's administrative assistant 2.01.030 Repealed. 2.01.040 Full-time position. 2.01.050 Salary. 2.01.010 Duties. The mayor shall be the chief executive and administrative officer of the city, in charge of all departments and employees, with authority to designate assistants and department heads. The mayor shall see that all laws and ordinances are faithfully enforced and that law and order is maintained in the city, and shall have general supervision of the administration of city government and all city interest. [Ord. 2349 § 2, 1983]. 2.01.020 References to mayor's administrative assistant. On and after January 1, 1984, the office of the mayor's administrative assistant is hereby abolished. All references in ECC 2.01.030 to the mayor's administrative assistant shall refer to the mayor or designee. [Ord. 2303, 1982]. 2.01.030 Term limitation. Repealed by Ord. 3223. [Ord. 2349 § 3, 1983]. 2.01.040 Full-time position. The mayor shall devote full time to execution of the duties of the office of mayor and shall not engage in any occupation or professional inconsistent with the full-time performance of the duties of mayor. [Ord. 2349 § 4, 1983]. 2.01.050 Salary. The mayor shall receive a salary in such amount as the city council may from time to time establish by ordinance. [Ord. 2349 § 5, 1983]. EDMONDS CITY CODE Chapter 2.05 CITY ATTORNEY Sections: 2,05.010 Legal counsel — Professional services contract. 2.05.020 Duties. 2.05.030 Compensation. 2.05.010 Legal counsel— Professional services contract. Legal counsel services for the city of Edmonds, Snohomish County, Washington pursuant to the provisions of RCW 35A.12.020 shall be provided through a professional services contract. The professional services contract shall be let on such basis as a majority of the Edmonds city council shall determine. The city council shall utilize the consultant selection process established by Chapter 2.80 ECC provided that the mayor shall participate with the city council consultant selection committee in the selection of up to three candidates for presentation to the city council for its final approval. A. By its contract, the city council shall approve an individual or firm to be designated as city attorney. [Ord. 3000 § 1, 1994; Ord. 2996 § 1, 1994; Ord. 926 § 1, 1962]. 2.05.020 Duties. A. The city attorney shall advise the city authorities and officers on all legal matters pertaining to the business of the city and shall approve all ordinances as to form. He shall represent the city in all actions brought by or against the city or against city officials in their official capacities. B. In addition to the duties prescribed by the laws of the state of Washington as hereinabove set forth, the city attorney shall: 1. Attend all regular and special council meetings; provided, however, that the city attorney shall be required to attend work meetings of the council only at the request and direction of the council; 2. Draft or approve all ordinances, leases and conveyances, and such other instruments as may be required by the business of the city; 3. Attend all regular and work meetings of the planning advisory board of the city of Edmonds as requested; 4. Attend all sessions of the Edmonds Municipal Court. [Ord. 2430, 1984; Ord. 1107, 1965; Ord. 926 § 2, 1962]. 2.05.030 Compensation. The city attorney shall be paid for services rendered in accordance with an annual authorization for services as contained in the city council's budget. Such authorization shall provide for hourly fees and expenses. The city council may in its discretion contract for the services of more than one firm or individual to provide different legal services to the city and the mayor and city council may assign the duties set forth in the preceding section accordingly. [Ord. 2967 § 1, 1994; Ord. 2319 § 1, 1982]. 2 Chapter 2.06 INDEMNIFICATION OF EMPLOYEES AND OFFICERS Sections: 2.06.000 Definitions. 2,06,010 Legal representation. 2.06.020 Exclusions. 2.06.030 Determination of exclusion. 2.06.040 Representation and payment of claims — Conditions. 2.06.050 Effect of compliance with conditions. 2.06.060 Failure to comply with conditions. 2.06.070 Reimbursement of incurred expenses. 2.06,080 Conflict with provisions of insurance policies. 2.06.090 Pending claims. 2.06.000 Definitions. Unless the context indicates otherwise, the words and phrases used in this chapter shall have the following meanings: A. "Official" means any person who is serving or has served as an elected city official, and any person who is serving or has served as an appointed member of any city board, commission, committee or other appointed position with the city. B. "Employee" means any person who is or has been employed by the city. [Ord. 2535, 1985]. 2.06.010 Legal representation. A. As a condition of service or employment the city shall provide to an official or employee, subject to the conditions and requirements of this chapter, and notwithstanding the fact that such official or employee may have concluded service or employment with the city, such legal representations as may be reasonably necessary to defend a claim or law suit filed against such official or employee resulting from any conduct, act or omission of such official or employee performed or omitted on behalf of the city in their capacity as a city official or employee, which act or omission is within the scope of their service or employment with the city. This chapter is subject to repeal or modification at the sole discretion of the city council. B. The legal services shall be provided by the office of the city attorney unless: 1. Any provision of an applicable policy of insurance provides otherwise; or 2. A conflict of interest or ethical bar exists with respect to said representation; 3. In the event that outside counsel is retained under subsection (13)(2) above, the city shall indemnify the employee from the reasonable costs of defense provided that in no event shall the officer or employee be indemnified for attorneys' fees in excess of the hourly rates established by the city's contract with its city attorney. The officer or employee shall be liable for all hourly charges in excess of said rate. [Ord. 2535, 1985]. 2.06.020 Exclusions. A. In no event shall protection be offered under this chapter by the city to: 1. Any dishonest, fraudulent, criminal, willful, intentional or malicious act or course of conduct of an official or employee; 2. Any act or course of conduct of an official or employee which is not performed on behalf of the city; 3. Any act or course of conduct which is outside the scope of an official's or employee's service or employment with the city; and/or 4. Any lawsuit brought against an official or employee by or on behalf of the city. Nothing herein shall be construed to waive or impair the right of the city council to institute suit or counterclaim against any official or employee nor to limit its ability to discipline or terminate an employee. B. The provisions of this chapter shall have no force or effect with respect to any accident, occurrence or circumstance for which the city or the official or employee is insured against loss or damages under the terms of any valid insurance policy; provided, that this chapter shall provide protection, subject to its terms and limitations, above any loss limit of such policy. The provisions of this chapter are intended to be secondary to any contract or policy of insurance owned or applicable to any official or employee. The city shall have the right to require an employee to utilize any such policy protection prior to requesting the protection afforded by this chapter. [Ord. 2535, 1985]. 2.06.030 Determination of exclusion. The determination of whether an official or employee shall be afforded a defense by the city under the terms of this chapter shall be finally determined by the city council on the recommendation of the mayor. The decision of the city council shall be final as a legislative determination of the council. Nothing herein shall preclude the city from undertaking an officer or employee's defense under a reservation of rights. [Ord. 2535, 1985]. C1 2.06.040 Representation and payment of claims— Conditions. The provisions of this chapter shall apply only when the following conditions are met: A. In the event of any incident or course of conduct potentially giving rise to a claim for damage, or the commencement of a suit, the official or employee involved shall, as soon as practicable, give the city attorney written notice thereof, identifying the official or employee involved, all information known to the official or employee involved, all information known to official or employee with respect to the date, time, place and circumstances surrounding the incident or conduct giving rise to the claim or law suit, as well as the names and addresses of all persons allegedly injured or otherwise damaged thereby, and the names and addresses of all witnesses. B. Upon receipt thereof, the official or employee shall forthwith deliver any claim, demand, notice or summons or other process relating to any such incident or conduct to the city attorney, and shall cooperate with the city attorney, or an attorney designated by the city attorney, and, upon request, assist in making settlement of any suit and enforcing any claim for any right of subrogation against any persons or organizations that may be liable to the city because of any damage or claim of loss arising from said incident or course of conduct, including but not limited to rights of recovery for costs and attorneys' fees arising out of state or federal statute upon a determination that the suit brought is frivolous in nature. C. Such official or employee shall attend interviews, depositions, hearings and trials and shall assist in securing and giving evidence and obtaining attendance of witnesses all without any additional compensation to the official or employee and, in the event that an employee has left the employ of the city, no fee or compensation shall be provided. D. Such official or employee shall not accept nor voluntarily make any payment, assume any obligation, or incur any expense relating to said claim or suit, other than for first aid to others at the time of any incident or course of conduct giving rise to any such claim, loss, or damage. [Ord. 2535, 1985]. 2.06.050 Effect of compliance with conditions. If legal representation of an official or employee is undertaken by the city attorney, all of the conditions of representation are met, and a judgment is entered against the official or employee, or a settlement made, the city shall pay such judgment or settlement; provided, that the city may, at its discretion appeal as necessary such judgment. [Ord. 2535, 1985]. 2.06.060 Failure to comply with conditions. In the event that any official or employee fails or refuses to comply with any of the conditions of ECC 2.06.040, or elects to provide his/her own representation with respect to any such claim or litigation, then all of the provisions of this chapter shall be inapplicable, and have no force or effect with respect to any such claim or litigation. [Ord. 2535, 1985]. 2.06.070 Reimbursement of incurred expenses. A. If the city determines that an official or employee does not come within the provisions of this chapter, and a court of competent jurisdiction later determines that such claim does come within the provisions of this chapter, then the city shall pay any judgment rendered against the official or employee and reasonable attorneys' fees incurred in defending against the claim. The city shall pay any attorneys' fees incurred in obtaining the determination that such claim is covered by the provisions of this chapter. B. If the city determines that a claim against a city official or employee does come within the provisions of this chapter, and a court of competent jurisdiction later finds that such claim does not come within the provisions of this chapter, then the city shall be reimbursed for costs or expenses incurred in obtaining the determination that such claim is not covered by the provisions of this chapter. [Ord. 2535, 1985]. 2.06.080 Conflict with provisions of insurance policies. Nothing contained in this chapter shall be construed to modify or amend any provision of any policy of insurance where any city official or employee thereof is the named insured. In the event of any conflict between this chapter and the provisions of any such policy of insurance, the policy provisions shall be controlling; provided, however, that nothing contained in this section shall be deemed to limit or restrict any employee's or official's right to full coverage pursuant to this chapter, it being the intent of this chapter and section to provide the coverage detailed in this chapter outside and beyond insurance policies which may be in effect, while not compromising the terms and conditions of such policies by any conflicting provision contained in this chapter. [Ord. 2535, 1985]. 2.06.090 Pending claims. The provisions of this chapter shall apply to any pending claim or lawsuit against an official or employee, or any such claim or law suit hereafter filed, irrespective of the date of the events or circumstances which are the basis of such claim or law suit. [Ord. 2535, 1985]. 4 Chapter 2.10 CONFIRMATION AND DUTIES OF CITY OFFICERS Sections: 2.10.010 Confirmation process. 2.10.020 Assignment of duties. 2.10.030 Police chief. 2.10.040 Fire chief. 2.10.050 References to director of community development. 2.10.060 Executive council assistant. 2.10.070 Mayor's executive assistant. 2.10.010 Confirmation process. A. Whenever a vacancy occurs in one of the positions listed in this section, the city council will review the specifications of that position and revise it as needed before the vacancy is filled. B. The mayor or his/her designee will review all applications and determine the persons with the highest qualifications. Any city council member, upon request to the mayor, may review the applications received for the vacant position. C. The mayor shall appoint, subject to city council confirmation, the positions of judge and hearing examiner. The hearing examiner may be removed from his/her position for cause, as determined by the mayor. The judge may be removed from his/her office for cause, as specified in RCW 3.50.095, D. The mayor shall appoint, subject to council confirmation, the department director positions of police chief, fire chief, community services director, administrative services director, development services director, parks and recreation director, public works director, and human resources director. The city council shall interview the top three candidates for each position prior to the mayor's final selection. [Ord. 3279 § 1, 1999]. 2.10.020 Assignment of duties. The department directors shall be responsible for carrying out all directives as assigned by the mayor, including, but not limited to, planning and directing the activities and staff in their assigned department, supervising and evaluating the work processes and assigned staff, controlling the financial integrity of the assigned budget, and insuring the delivery of quality public services. All department directors shall serve at the pleasure of the mayor. [Ord. 3279 § 1, 1999]. 2.10.030 Police chief. Pursuant to the authority of RCW 41.12.050, the position of police chief has been removed from civil service. The police chief shall be appointed by the mayor subject to confirmation by majority vote of the city council. [Ord. 3279 § 1, 1999]. 2.10.040 Fire chief. Pursuant to RCW 41.08.050, the position of fire chief has been removed from civil service. The fire chief shall be appointed by the mayor subject to confirmation by majority vote of the city council. [Ord. 3279 § 1, 1999]. 2.10.050 References to director of community development. Wherever references are made in the Edmonds City Code or any ordinance of the city to the director of community development, said reference shall hereafter be construed to mean the development services department director or designee. [Ord. 3279 § 1, 1999]. 2.10.060 Executive council assistant. The executive council assistant shall be a contract employee hired on an annual basis by the city council. The terms and conditions of employment for the executive council assistant as well as all benefits shall be governed by the provisions of the contract. The contract shall provide for the delegation by the mayor of the direction of this individual to the city council president. In the event that the mayor elects in his or her discretion not to delegate that function, the council reserves the right to immediately eliminate the position. [Ord. 3279 § 1, 1999]. 2.10.070 Mayor's executive assistant. The position of mayor's executive assistant shall be an at -will position with the executive assistant serving at the pleasure of the mayor. The salary for the position is established by the annual salary ordinance. The terms and conditions of employment as well as job duties being set forth in a job description developed by the mayor with the concurrence of the city council. [Ord. 3279 § 1, 1999]. 5 Chapter 1.02 CITY CLASSIFICATION Sections: 1,02.010 Adoption of optional municipal code. 1.02.020 Effective date. 1.02,030 City council positions. 1.02.031 Council president. 1.02.035 Filling vacant council positions. 1.02.040 Existing city laws and regulations. 1.02.010 Adoption of optional municipal code. There is adopted for the city of Edmonds, Washington, the classification of noncharter code city retaining the mayor -council plan of government under which the city of Edmonds is presently operated, as provided in Chapter 35A.12 RCW, endowed with all the applicable rights, powers, privileges, duties and obligations of a noncharter code city as the same now exists, or may be provided hereafter, including any and all supplements, amendments or other modifications of said title hereafter at any time enacted. [Ord. 1513, 1970]. 1.02.020 Effective date. The city clerk is authorized and directed to forward to the secretary of state a certified copy of the ordinance codified herein for filing pursuant to RCW 35A.02.040, as amended, on the 31 st day of December, 1970, and upon which filing the city of Edmonds shall thereafter be classified as a noncharter city as herein provided commencing with the first day of January, 1971. [Ord. 1513, 1970]. 1.02.030 City council positions. The city council shall continue to hold office until their successors are elected and qualified at the next biennial municipal elections to be conducted as provided in Chapter 35A.29 RCW. The four existing city council positions which terms will expire January 10, 1972, shall be elected for four-year terms in the 1971 municipal elections. The three existing city council positions which terms expire January 14, 1974, shall be elected for new four-year terms in the 1973 municipal elections. Thereafter the requisite number of city council positions shall be filled by election biennially as the terms of their predecessors expire and shall serve for terms of four years. The positions to be filled on the city council shall be designated by consecutive numbers and shall be dealt with as separate offices for all election purposes as provided by RCW 35A.29. [Ord. 1513, 1970]. 1.02.031 Council president. At the first council meeting in July for the year 1989, the city council shall elect one of its members as council president who shall also be the mayor pro tempore. The council president's term shall be for six months and until his successor is elected. Following the initial six-month term, the council president shall be elected for one-year terms by the city council at the first council meeting of each year and shall serve for a one-year term until his or her successor is elected. A. At the same time, the city council shall elect a council president pro tempore who shall serve in the absence of the council president. In the event that both the council president and president pro tempore are unavailable, the council president shall appoint a member of the council to fulfill his/her duties while both are unavailable. B. In addition to any other duties assigned by the city council, the council president shall have the following responsibilities: 1. Make assignments to all council committees, schedule committee hearings, and otherwise supervise the committee system; 2. Formulate and prepare the agenda for city council meetings; and 3. Supervise and direct the activities of the council resource person. C. In addition to the salary as a member of the city council, the council president shall be entitled to receive a salary of $100.00 per month and $25.00 per council meeting in order to compensate him for the time necessary to prepare the agenda and other associated responsibilities. This total additional compensation shall not exceed $200.00 per month. When the council president is absent and council president pro tempore is serving in his place, the city council president pro tempore shall receive the $25.00 per meeting payment. [Ord. 2722, 1989; Ord. 2389, 1983; Ord. 2308, 1982; Ord. 2131 § 1, 1980; Ord. 2126 § 1, 1980; Ord. 2116 § 1, 1980]. 1.02.035 Filling vacant council positions. A. In the event a vacancy or vacancies shall occur on the city council, such position(s) shall be filled until a successor to such position(s) can be elected for the remainder of the unexpired term(s) at the next municipal M. election. Such election process shall comply with the requirements of RCW 35A.12.050 and Chapter 42.12 RCW. In addition the city council shall establish a process commensurate with the time available which includes, at a minimum, public notification by posting and publication in the city's legal newspaper, the establishment of an application process with a clearly stated deadline for the submission of letters of interest, the development of questionnaires to assist the city council in its process, a public interview process conducted by the city council and nominations and selection by the city council during an open public meeting. All portions of this process shall be open to the public unless the city council in its discretion elects to discuss the qualifications of a candidate for public office in executive session as provided for by RCW 42.30.110(h). B. In the event that a council member shall resign or otherwise become ineligible to hold office after the date when the council position has been filled by election but prior to the date on which the newly elected council member is eligible to take office, the city council may in its sole discretion elect to dispense with the procedures established in subsection A of this section and appoint the newly elected successor to fill the vacancy for the remainder of the unexpired term. [Ord. 3382 § 1, 2001; Ord. 3005 § 1, 1995; Ord. 1841 § 2, 1976]. 1.02.040 Existing city laws and regulations. All ordinances, resolutions and orders adopted under the third class city classifica- tion, where not in conflict with state law, shall continue in force until repealed or amended by the city council under the newly adopted optional municipal code classification of noncharter code city under the mayor -council form of government. [Ord. 1513, 1970]. 7 BOARDS & COMMISSIONS 0 MEMORANDUM Date: March 2, 2007 To: City Council From: Mayor Haakenson Subject: Requirements for City boards and commissions Dear Councilmembers, Attached is a list of all the City's boards and commissions (as well as several committees) and their requirements. For those boards and commissions where all members have the same requirements, there is no breakdown of the positions; however, where there is a difference among the members, individual positions are listed out. If you have questions, please let me know. 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E 1 (0 Q) m ❑ o E ", c E 0 V O � O O N [0 CO C U C * v aD E o E * x a� « (D ._ O Z .`O d } U Z O Z } y C } } o 3 m o v.. a� �, C E ❑ w o U a C w y t 0 O O `� (CO yy O d E O W Z C 7 E O O° Z V G> } E } a Z N O Z Z O) .r ` co Q), .�❑ (D z 'O c❑`o c _ _ O C d 3 Z VJ �% c °' �, } 0 o 3 0 3 G1 c p y a w N coo O dCL a w a � 1" Urz o f0 C C Q) y fj0 ❑ N a E* N N O +� O O O Z y y b D d 2 m a C E p Z C Z O Z a) . o E �, E ` c • Q) m a cu w ° m E c c c ❑ m to❑ w °' 3 m a�i coo "' d.�� v 42 d d w z N O Z q O;' Z iC } o'y o c E o E co `co °a' o (D E a) 4= � m ° °cc Q m o _0 y N U O C � O CD C O N Llj E 3 c U 3❑ y O w "�" 3 a j H C C E y G y❑ M E N E a E y E 'C Q d7 i° a ,❑, rA 0 Lu Ck>o� c 0 p �. w °3 o E E E❑ � `o `a c an a� ° 0 m a m o ❑ c❑ E ° �_ c d I an d .� V d .,° o w V y E = m o� .a c m V co E E ms❑. o C 'E y° a? co y O C co P in E p � a0+ E N p � 4 C[} O to s❑: O c� Jai N Q M s C " J « J L.0 « 2 a. + in u 1=v r- 0 0 N N M a� m v a Title 10 BOARDS AND COMMISSIONS Chapters: 10.01 Council Confirmation 10.05 Architectural Design Board 10.15 Building Board of Appeals 10.16 Cemetery Board 10.20 Edmonds Civic Arts Commission 10.25 Civil Service Commission 10.30 Disability Board 10.31 Medical Self -Insurance Advisory Board 10.35 Hearing Examiner 10.40 Planning Board 10.50 Public Library Board 10.60 Edmonds Sister City Commission 10.70 Lodging Tax Advisory Committee 10.80 Citizens' Commission on Salaries of Elected Officials 10.90 Edmonds Historic Preservation Commission Sections: 10.01.010 Council confirmation defined. LE City Code Chapter 10.01 COUNCIL CONFIRMATION '0.01.010 Council confirmation defined. When the provisions of city ordinances require the confirmation by the city council of any mayoral appointment, whether to a board or commission established by ECC Title 10 or of a public officer in accordance with provisions of ECC Title 2, such confirmation shall be expressed by the affirmative vote of four members of the city council. [Ord. 2521, 585]. Chapter 10.05 ARCHITECTURAL DESIGN BOARD Sections: 10.05.010 Board created — Membership. 10.05.020 Terms of membership. 10.05.030 Officers of board — Meetings — Quorum. 10.05.040 Powers and duties. 10.05.010 Board created — Membership. A. There is created an architectural design board consisting of seven members. The membership of said board shall be composed of one architect and/or building designer, one landscaper and/or landscape architect, one builder or developer, one educated or having practical experience in planning, one person trained or having practical experience in any of the aforementioned categories or any related design science and two lay persons. The lay members shall reside within the city limits of the city of Edmonds. B. Voting members of said board shall be appointed by the mayor, subject to confirmation by the city council. Members shall be selected without respect to political affiliation and they shall serve without compensation. C. No person shall be appointed to serve more than two full terms on the board. An appointment to fill a vacancy for less than two years shall not constitute a full term for the purposes of this section. D. All references in the Edmonds City Code to "City Amenities Design Board", "Amenities Design Board" or "ADB" shall deemed to refer to the architectural design board. [Ord. 2281 § 1, 1982; Ord. 2040 § 1, 1978; Ord. 1846 § 1, 1976; d. 1683 § 1, 1973]. 10.05.020 Terms of membership. In order to insure that the fewest terms will expire in any one year, the terms of the appointed positions by position number shall expire on December 31 st of the year set opposite said position number as follows: �. s F� 2 Position No. 1 — 1991 Position No. 2 — 1988 Position No. 3 — 1989 Position No. 4 — 1990 Position No. 5 — 1990 Position No. 6 — 1991 Position No. 7 — 1988 Thereafter, the terms of membership for the members of the board shall be four years. No person shall serve more than two full consecutive terms; an appointment to fill a portion of an unexpired term less than two years in length shall not be considered a full term. Vacancies occurring otherwise than upon the expiration of terms may be filled for the unexpired terms. Members may be removed by the mayor following a public hearing, with the approval of the city council, for inefficiency, neglect of duty, or misfeasance in office. Members shall be removed for failure to maintain attendance as required by the provisions of the Edmonds City Code. [Ord. 2656 § 1, 1988; Ord. 2040 § 2, 1978; Ord. 1846 § 2, 1976; Ord. 1683 § 1, 1973]. 10.05.030 Officers of board — Meetings — Quorum. Members of the board shall meet and organize by electing from the members of the board a chairman and a vice- chairman, and such other officers as may be determined by the board. It shall be the duty of the chairman to preside at all meetings. The vice-chairman shall perform this duty in the absence of the chairman. A majority of the board shall constitute a quorum for the transaction of business. A majority of a quorum may transact any particular business of the board. The regular public meeting of the board shall be held on the first Wednesday of each respective month commencing at 7:00 p.m. at the Edmonds Civic Center; provided, however, that regular meetings may be held at such time or place as may be designated by the chairman or the majority of the members of the board. [Ord. 2529, 1985; Ord. 1980, 1978; Ord. 1763 § 2, 1975; Ord. 1683 § 1, 1973]. 10.05.040 Powers and duties. The board is empowered to advise and make recommendations to the mayor, city council, planning commission and 7e planning department on matters hereinafter enumerated and on such matters as may be specifically referred to the .-,oard by the mayor, city council, planning commission or the planning department: A. To study and prepare a recommendation for a comprehensive architectural design plan including the recommendation of establishment of specific design districts which shall be a part of the comprehensive plan. B. To review and study land use within the city of Edmonds from a design standpoint. C. To establish goals, objectives and policies for design districts. D. To recommend legislation to effectuate the implementation of the comprehensive architectural design plan and the goals, objectives and policies for each established design district. E. And for such other matters as shall be referred to the board for review and recommendation by the mayor, city council, planning commission or the planning department. [Ord. 1683 § 1, 1973]. Chapter 10.15 BUILDING BOARD OF APPEALS Sections: 10.15.010 Purpose. 10.15.020 Membership. 10.15.030 Removal. 10.15.040 Limitations of authority. 10.15.050 Tests. 10.15.060 Landslide hazard and earth subsidence areas. 10.15.010 Purpose. The building board of appeals shall hear appeals from the building official's interpretation of the Uniform Building Code, determinations of suitable, alternative methods and materials and any other appeal delegated to a board of appeals pursuant to the State Building Codes, including but not limited to the Uniform Building Code, the Uniform Fire Code, the Uniform Code for Abatement of Dangerous Buildings, the Uniform Mechanical Code, the Uniform Plumbing Code and any and all other codes adopted pursuant to the direction and authority of Chapter 19.27 RCW. [Ord. 3456 § 2, 2003]. 10.15.020 Membership. A. There is created a building board of appeals consisting of members who are qualified by experience and training to pass on matters pertaining to building construction and who are not employees of the city of Edmonds. The technical expertise of board members may be supplied through training or experience as an architect, builder, fire inspector, mechanical or electrical expert, plumber, engineer, or others with similar technical training. Four of the board members shall be active, practicing members of one of the prior listed disciplines or professions and the fifth shall be a citizen familiar with any of the previously referred to disciplines or professions. The technical members of the board with the -equired professional or technical expertise may be appointed, regardless of where such individuals reside. The lay arson shall be a resident of the city of Edmonds. Members of the board shall be appointed by the mayor and confirmed by the city council. B. Alternative Members. In addition, up to three alternative technical members and one alternative lay member may be appointed by the mayor subject to the confirmation of the city council. Such alternates shall serve when required in order to assure a five -member panel consisting of four technical persons and one lay representative. C. Term. On the date of initial appointment to the board, the mayor shall appoint two technical members to two-year terms, two technical members to four-year terms and the lay member to a three-year term. Thereafter, members, whether technical or lay, regular or alternative, shall be appointed to four-year terms. D. The building official shall serve as an ex-officio member of the board and act as the secretary to said board, but shall have no vote on any matter before the board; provided, however, that the fire chief shall serve as an ex officio member on appeals relating to the Uniform Fire Code and act as secretary with respect to such cases. [Ord. 3456 § 2, 2003]. 10.15.030 Removal. Members of the board of appeals shall serve at the pleasure of the city and may be removed at any time for any reason which the mayor, with confirmation of the city council, deems to be in the public interest. Any member who is unavailable for three consecutive appeals shall be automatically removed and a new member or alternate appointed. [Ord. 3456 § 2, 2003]. 10.15.040 Limitations of authority. A. The building board of appeals shall have no authority relative to the interpretation of the administrative provisions of any of the State Building Codes, nor shall the board be empowered to waive any requirement of any such code. B. The provisions of the State Building Code as adopted by the city are not intended to prevent the use of any material, alternate design or method of construction not specifically prescribed by this code, provided any alternative has been approved and its use authorized by the building official or on appeal or request for review by the building board of appeals. C. The building board of appeals, on review, may approve the use of any material, alternate design or method of instruction providing that it finds that the proposed design is satisfactory and complies with the provisions of this code and that the material, method or work offered is, for the purpose intended, at least the equivalent of that prescribed in the applicable code in suitability, strength, effectiveness, fire resistance, durability, safety and sanitation. D. The building board of appeals shall require that sufficient evidence or proof be submitted to substitute any claims that may be made regarding its use. The details of any action granting approval of alternate design or method of construction shall be recorded and entered in the written decision of the board. [Ord. 3456 § 2, 2003]. M 10.15.050 Tests. The appellant bears the burden of proof in any proceeding before the board. If there is insufficient evidence of compliance with any of the provisions of this code or evidence that any material or construction does not conform to the requirements of this code, the appeal from the decision of the building official shall be denied. The board may also continue any proceeding in order to permit the appellant or applicant to provide proof of compliance through tests conducted in accordance with general engineering practice and best scientific evidence. Such tests shall be made by the applicant or appellant and at no expense to the jurisdiction. Test methods shall be as specified by the applicable building code or by other recognized testing standards. If there are not recognized and accepted test methods for the proposed alternate, testing methods shall utilize generally accepted engineering practice and best scientific method. Reports of such tests shall be retained and made a part of the record of the proceeding. [Ord. 3456 § 2, 2003]. 10.15.060 Landslide hazard and earth subsidence areas. Nothing herein shall be interpreted to permit the board to hear any appeal, nor any request for deviation of design or alternative methods with respect to any property lying within a recognized landslide hazard and earth subsidence area or which is otherwise subject to the requirements of Chapter 19.05 ECDC. [Ord. 3456 § 2, 2003]. 5 Chapter 10.16 CEMETERY BOARD Sections: 10.16.010 Cemetery board — Members and their terms. 10.16.020 Vacancy — Removal. 10.16.030 Powers of board. 10.16.040 Meetings — Annual report. 10.16.050 Funds for improvement and maintenance of the cemetery. 10.16.060 Board subordinate to council. 10.16.070 Cemetery board alternates. 10.16.200 Severability. 10.16.010 Cemetery board — Members and their terms. The cemetery board shall be composed of seven community members, plus two additional persons to serve as alternates, as provided under ECC 10.16.070. Board members and the alternates shall be appointed for four-year terms terminating on December 31 st. [Ord. 3095 § 1, 1996; Ord. 2839 § 1, 1991; Ord. 2570, 1986; Ord. 2306, 19821. 10.16.020 Vacancy — Removal. Vacancies occurring other than through the expiration of terms may be filled for the unexpired terms, and the persons serving as the cemetery board alternates shall be given priority in filling a vacancy. Members may be removed by the mayor, with approval of the city council, after a public hearing before the city council for inefficiency, neglect of duty or malfeasance in office. Members shall also be removed for failure to maintain attendance as required by provisions of the Edmonds City Code. The persons serving as the cemetery board alternates shall be subject to the same provisions for -emoval as for members. [Ord. 3095 § 2, 1996; Ord. 2839 § 2, 1991; Ord. 2306, 1982]. 10.16.030 Powers of board. The cemetery board shall have full power to manage the operation of the municipal cemetery and to that end shall have powers: A. To establish rules and regulations to carry out the provisions of this chapter. B. To regulate the sale and location of burial lots and/or to contract with persons to provide such services. C. To provide for the improvement and maintenance of the cemetery. To that end the board shall submit proposed maintenance and capital improvement budgets to the city council in conjunction with the budget process for the city. D. To determine the types of plantings, monuments and markers that will be permitted for the proper and most attractive development of the cemetery. E. To accept any gift of money or property on behalf of the cemetery. F. In carrying out duties and responsibilities, the board shall have such staff assistance as authorized by the mayor. Provided that, the person serving as a cemetery board alternate shall not possess any of the preceding powers until such person becomes a cemetery board member. [Ord. 3095 § 3, 1996; Ord. 2839 § 3, 1991; Ord. 2306, 19821. 10.16.040 Meetings — Annual report. The board shall hold such meetings as are necessary to perform the functions set forth herein and as set forth in its rules and regulations. The board shall report at least quarterly to the council concerning the operations of the cemetery, the short and long term goals of the board concerning the cemetery and a report on the activities of the board. [Ord. 2306, 1982]. 10.16.050 Funds for improvement and maintenance of the cemetery. A. There are hereby created two special funds of the city to be known as the cemetery improvement fund and the cemetery maintenance trust fund. The city council shall, each year as a part of the budget process, allocate revenue from lot sales, burial fees, and all bequests, gifts and donations received with respect to the cemetery on a percentage basis to said funds. 1. The cemetery improvement fund shall be used for special projects, special events, capital improvements and other nonrecurring needs of the cemetery. Expenditures from this fund may be made from both principal and income and the entire amount of said fund may be expended in any year when such expenditures are within the annual budget approved by the city council. 2. The cemetery maintenance fund shall be expended solely for the purpose of maintaining the cemetery and any capital improvements or facilities located therein. Expenditures from this fund shall be limited to the income earned rel by said funds along with any additional funds appropriated to this fund by the council or donated by any party for the purpose of annual maintenance. To the extent permitted by law, the council hereby impresses the current fund balance of this fund, any private donations with a trust in favor of the estate of any person buried therein and the descendants of such persons along with the Hubbard Family Foundation and any other persons or entities donating funds to the cemetery maintenance trust fund for the sole purpose of maintenance of the cemetery and capital improvements. 3. The council shall consider the number of unsold lots, the fair market value of unsold lots and the probable earnings of the trust fund when fully funded by the sale of all lots when allocating revenue. The goal shall be to actuarially fund the trust fund with sufficient monies so that it may become and remain a self-sufficient source of funding for all recurring maintenance of the cemetery. B. Any monies in said funds, surplus and available for investment, shall be managed in accordance with RCW 68.12.060. This section shall be considered approval of investments in accordance with RCW 68.12.065 subject to the annual review of the city council in the budget process. All investments shall be reviewed and approved by the finance director. C. Monies shall be paid out of said funds only upon warrants drawn by the cemetery board and approved in the manner set forth in Chapter 2.25 ECC. All warrants shall be endorsed by the mayor and attested by the city finance director. In no event shall any monies be expended from the cemetery maintenance trust fund in excess of the annual income earned nor shall any money be diverted from such trust fund to any purpose other than provided in this chapter. To the extent permitted by law, the council hereby prohibits itself and future councils from diverting funds for the cemetery maintenance trust fund, while reserving its right to budget monies to or approve expenditures from the cemetery maintenance trust fund in future budget years as it, in its sole discretion, shall deem appropriate in order to actuarially provide for the establishment of a fund which will generate sufficient income to meet the future foreseeable maintenance needs of the cemetery. Expenditures of monies from the cemetery improvement fund and the cemetery maintenance trust fund shall be provided for in the annual budget by the council subject to the recommendation of the cemetery board. [Ord. 2827 § 3, 1991; Ord. 2596, § 1, 1986]. 10.16.060 Board subordinate to council. The cemetery board shall, at all times, be deemed subordinate to the city council and the city council shall have power settle all disputes and regulate, modify and supervise the exercise of the powers herein granted. [Ord. 2306, 1982]. 10.16.070 Cemetery board alternates. In addition to the seven board members, two alternate persons shall be appointed to the cemetery board and shall serve subject to the following provisions: A. In the absence of a regularly appointed board member, an alternate shall exercise the powers attributed to board members in ECC 10.16.030 and shall be subject to the same requirements regarding attendance and other attributes of the position. Between the two alternate members, the alternate member who has served upon the cemetery board for the longest period of time shall be the first to serve in a vacant regularly appointed board member position. B. When a vacancy upon the cemetery board arises, the replacement member shall be appointed to the open position, and in the event that an alternate is appointed to the board as a board member, a new person shall be appointed to serve as the board alternate. [Ord. 3095 § 4, 1996; Ord. 2839 § 4, 1991]. 10.16.200 Severability. If any word, clause, phrase or other portion of this chapter is held to be invalid or unconstitutional by a court of competent jurisdiction, the remaining words, clauses, phrases and other portions of this chapter shall not be affected. [Ord. 2306, 1982]. Chapter 10.20 EDMONDS CIVIC ARTS COMMISSION' - Sections: 10.20.010 Establishment and purpose of commission — Number of members. 10.20.020 Terms of membership. 10.20.030 Officers of commission — Meetings — Quorum. 10.20.040 Powers and duties. 10.20.050 Juried selection process. 10.20.010 Establishment and purpose of commission — Number of members. A. The purpose of the Edmonds arts commission is to promote the arts as an integral part of community life. The commission provides quality experiences to increase public awareness of the arts, assisting the work of students, artists and local arts organizations, while providing public art that contributes to the community identity and establishing and pursuing long range goals to benefit the arts and the community. B. There is established an Edmonds civic arts commission which shall be composed of seven members who shall be appointed by the mayor subject to confirmation by the city council. At least four members of the commission shall be involved in the instruction of, or otherwise professionally engaged in, the visual, literary and performing arts. [Ord. 3025 § 1, 1995]. 10.20.020 Terms of membership. A. In order to insure the fewest terms will expire in any one year, the terms of the appointed positions by position number shall expire on December 31st of the year set opposite said position number as follows: Position No. 1: 1979; Position No. 2: 1980; Position No. 3: 1980; Position No. 4: 1981; Position No. 5: 1981; Position No. 6: 1978; Position No. 7: 1979. Thereafter, the term of membership shall be for four years. B. Any appointment to a position vacated other than by the expiration of the term of the appointment shall be to fill the unexpired portion of the term. Members may be removed by the mayor with approval of the city council after a public hearing before the city council for inefficiency, neglect of duty, or malfeasance in office. Members shall be removed for failure to maintain attendance as required by provisions of the Edmonds City Code. C. No person shall be appointed to serve more than two full terms on the commission. An appointment to fill a vacancy for less than two years shall not constitute a full term for the purposes of this section. [Ord. 3025 § 1, 1995]. 10.20.030 Officers of commission — Meetings — Quorum. Members of the commission shall meet and organize by electing from the members of the commission a chairman and a vice-chairman, and such other officers as may be determined by the commission. It shall be the duty of the chairman to preside at all meetings. The vice-chairman shall perform this duty in the absence of the chairman. A majority of the board shall constitute a quorum for the transaction of business. The commission shall set its own meeting dates and shall give notice of such meeting in compliance with the Open Public Meeting Act of the state of Washington, as it now exists and as it may be amended from time to time. Professional and general staff will be provided at the discretion of the mayor and city council. [Ord. 3025 § 1, 1995]. 10.20.040 Powers and duties. The commission is empowered to advise and make recommendations to the mayor, city council or other commission or board of the city on matters including but not limited to those set forth hereinafter. The activities of the commission shall include the following: A. To represent the city's interest in art matters and the interest of the arts in city matters and to keep the mayor and -ity council informed on all such related matters; B. To be a central body to whom art organizations, artists and anyone interested in cultural advancement of the community may come for information or assistance; C. To encourage and aid programs for cultural enrichment of Edmonds citizens; D. To coordinate and strengthen existing cultural organizations and to develop cooperation with schools and regional .nd national art organizations; E. To explore ways and implement methods of obtaining financial support through development of private, local, state and federal funds and establishing public/private partnerships to promote cultural projects within the community; F. To review and make recommendations on all art acquisitions, on facilities used for cultural events and other capital expenditures for cultural projects in the city; G. To review proposed arts -related projects or events to recommend to the city those which may provide benefit to the community; H. To explore and promote arts -related projects, events and businesses which may provide an economic benefit to the city or which beautify and enhance the image of the city; I. To engage in long range cultural planning and implementation as well as review city plans for the purpose of integration of arts elements into city planning including education, public finance, community services, etc.; J. To establish liaisons and set up mechanisms for communication with city boards and commission and other organizations as appropriate; K. To recognize the contributions made by individuals and organizations to the cultural life of the city; L. To provide periodic reports to the mayor and council on the progress of the work plan and prepare and submit an annual report; M. To render any other advice and assistant in cultural matters, aesthetics, and beautification; and N. To render any other advice and assistance to the city in any other artistic activities as may be referred to by the city. [Ord. 3025 § 1, 1995]. 10.20.050 Juried selection process. The following process has been developed in order to utilize the expertise of the commission, acting in conjunction with a representative of the architectural design board on architectural elements of public buildings, and with the comments of the public in order to develop a recommendation to the Edmonds city council regarding contracts for significant works of public art and all public arts projects, whether freestanding or erected as a part of a design component of a public building, which are visible from public ways or adjacent private property. The commission in the exercise of its powers shall utilize t least the following elements in the selection process: A. Develop a prospectus for announcing perspective purchases of or commissions for public art. Such a prospectus shall be submitted and finally approved by the city council prior to publication. B. Obtain proposals through appropriate public advertisements and direct mailings to artists of note. The advertisement need not be confined to the city's official newspaper. Rather the commission may utilize other magazines and newsletters which are better designed to reach the artistic community, and particularly artists whose work is compatible with the type of work contemplated by the commission and approved by the city council. C. The commission shall establish a jury to select finalists from among the members of the commission. The jury shall also include a representative of the architectural design board when appropriate to comment on architectural elements of public buildings, the city council and the public. D. The finalists for any project shall be presented at a public hearing before the jury. The public shall be heard in conjunction with the presentation of the finalists' proposals. Notice of the hearing shall be posted at the site and the locations designated by ordinance for the posting of official city notices. Posting shall be performed by the city clerk or the clerk's designee. A public hearing on an art work or design component of a public facility which is visible from a public way or adjacent private property shall also direct written notice of the hearing to the owners of private property within 300 feet of the site selected for the erection of the work. E. The jury through the commission shall make its recommendation to the city, council in writing and present the artist and proposed work of art to the city council at a public hearing. Notice of the hearing shall be provided as set forth in subsection D of this section. [Ord. 3025 § 1, 1995]. � ;t 0 Chapter 10.25 CIVIL SERVICE COMMISSION Sections: 10.25.010 Civil service commission created, appointment, terms, removal and quorum. 10.25.015 Terms limited. 10.25.020 Organization of commission — Powers and duties — Secretary. 10.25.030 Persons included — Competitive examinations — Transfers, discharges and reinstatements. 10.25.040 Existing positions blanketed under civil service. 10.25.050 Qualifications of applicants. 10.25.060 Tenure of employment — Grounds for discharge — Reduction or deprivation of privileges. 10.25.070 Procedure for removal — Suspension, demotion or discharge — Investigation — Hearing — Appeal. 10.25.090 Filling of vacancies — Probationary period. 10.25.100 Power to create offices, make appointments and fix salaries not infringed. 10.25.110 Enforcement by civil action — Legal counsel. 10.25.120 Deceptive practices — False marks, etc., prohibited. 10.25.130 Penalty — Jurisdiction. 10.25.140 Definitions. 10.25.150 Severability. 10.25.160 Applicability. 10.25.010 Civil service commission created, appointment, terms, removal and quorum. There is created in the city a civil service commission which shall be composed of three persons. The members of such commission shall be appointed by the mayor; provided, that the members of the civil service commission constituted pursuant to the Edmonds City Code chapters repealed at the enactment of this ordinance shall be the initial ommissioners of the newly created civil service commission and shall continue in office until the term of their original appointment expires. The members of such commission shall serve without compensation. No person shall be appointed a member of such commission who is not a citizen of the United States, a resident of such city for at least three years immediately preceding such appointment, and an elector of the county wherein he resides. Except for the initial commission, the term of office of such commissioners shall be for six years. Any member of such commission may be removed from office for incompetency, incompatibility or dereliction of duty, or malfeasance in office, or other good cause; provided, however, that no member of the commission shall be removed until charges have been preferred in writing, due notice and a full hearing had. The members of such commission shall devote due time and attention to the performance of the duties hereinafter specified and imposed upon them by this chapter. Two members of such commission shall constitute a quorum and the votes of any two members of such commission concurring shall be sufficient for the decision of all matters and the transaction of all business to be decided or transacted by the commission under or by virtue of the provisions of this chapter. Confirmation of the appointment or appointments of commissioners by the city council shall not be required. [Ord. 2441 § 1, 1984]. 10.25.015 Terms limited. No civil service commissioner shall serve more than two full consecutive terms. An appointment to fill the unexpired portion of a term less than two years in length shall not constitute a full term. [Ord. 2656 § 2, 1988]. 10.25.020 Organization of commission — Powers and duties — Secretary. A. Immediately after appointment, the commission shall organize by electing one of its members chairperson and hold regular meetings at least once a month, and such additional meetings as may be required for the proper discharge of their duties. It shall be the duty of the civil service commission: 1. To make suitable rules and regulations to implement this chapter which are not inconsistent with the provisions thereof. Such rules and regulations shall provide in detail the manner in which examinations may be held, and appointments, promotions, transfers, reinstatements, demotions, suspensions and discharges shall be made. The rules and regulations and any amendments thereof shall be reproduced for free public distribution; 2. All tests shall be practical and shall consist only of subjects which will fairly determine the capacity of persons examined to perform duties of the position to which appointment is to be made, and may include tests of physical fitness and/or of manual skill; 3. The commission is hereby authorized to extend the following credits and preference to applicants: a. The rules and regulations adopted by the commission shall provide for a credit of 10 percent in favor of all applicants for appointment under civil service, who in time of war or any expedition of the Armed Forces of the 10 United States, have served in and have been honorably discharged from the Armed Services of the United States, including the Army, Navy and Marine Corps and the American Red Cross. These credits shall apply to entrance examinations only, and/or b. The civil service commission may, in its discretion, provide for a preference not to exceed five percent in favor of all applicants who have successfully completed at least two years of service with the Edmonds police reserve unit or as volunteers with the Edmonds fire department. These credits shall apply to entrance examinations only, to be added to the score of applicants who have successfully passed the written, oral and physical tests on certification to the eligibility list. This preference shall apply only to positions of initial hire, and shall be uniformly applied during the selection process for any position. 4. The commission shall make investigations concerning and report upon all matters touching the enforcement and effect of the provisions of this chapter, and the rules and regulations prescribed hereunder; inspect all institutions, department, offices, places, positions and employments affected by this chapter, and ascertain whether this chapter and all such rules and regulations are being obeyed; 5. Such investigations may be made by the commission or by any commissioner designated by the commission for that purpose. Not only must these investigations be made by the commission as aforesaid, but the commission must make like investigation on petition of a citizen, duly verified, stating that irregularities or abuses exist, or setting forth in concise language, in writing, the necessity for such investigation. In the course of such investigation, the commission, or designated commissioner or chief examiner, shall have the power to administer oaths, subpoena and require the attendance of witnesses and the production by them of books, papers, documents and accounts appertaining to the investigation and also to cause the deposition of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in the superior court; and the oaths administered by a superior court judge in his judicial capacity; and the failure upon the part of any person so subpoenaed to comply with the provisions of this section shall be deemed a violation of this chapter and punishable as such; 6. All hearings and investigations before the commission, or designated commissioner or chief examiner, shall be governed by this chapter and by rules of practice and procedure to be adopted by the commission, and in the conduct thereof neither the commission nor designated commissioner shall be bound by the technical rules of evidence. No informality in any proceedings or hearing, or in the manner of taking testimony before the commission or designated commissioner, shall invalidate any order, decision, rule or regulation made, approved or confirmed by the commission; provided, however, that no order, decision, rule or regulation made by any designated commissioner conducting any hearing or investigation alone shall be of any force or effect whatsoever unless and until concurred in by at least one of the other two members; 7. To hear and determine appeals or complaints respecting the administrative work of the personnel department, appeals upon the allocation of positions, the rejection of an examination and such other matters as may be referred to the commission pursuant to the duties outlined in subsection (A)(1) of this section; 8. Establish and maintain in card or other suitable form a roster of employees covered by civil service; 9. Provide for, formulate and hold competitive tests to determine the relative qualifications of persons who seek employment in any class or position and as a result thereof establish eligible lists for the various classes of positions as established by the city, and to provide that employees laid off because of curtailment of expenditures, reduction in force, and for like cause, head the list in the order of their seniority, to the end that they shall be the first to be reemployed; 10. When a vacant position is to be filled, to certify to the appointing authority, on written request, the name of the three persons highest on the eligible list for the class. If there are no such lists, the commission shall make provision in their rules for provisional or temporary appointments for such positions. Such temporary or provisional appointment shall not exceed a period of six months in duration but may be extended for up to an additional six months if for any reason it cannot be determined at the expiration of the initial appointment that the position being filled by temporary or provisional appointment will in fact be vacant, such as in the instance of a position vacant due to an officer on disability leave under the LEOFF Act, or for other good cause which in the discretion of the commission warrants an additional extension of such a provisional or temporary appointment; 11. Keep such records as may be necessary for the proper administration of this chapter. B. The commission shall appoint a secretary and chief examiner. It may either designate a staff member from the city's personnel department or may contract with funds provided by the city with an independent contractor to fill the position. Nothing in this section shall require hiring under civil service procedures to fill these positions nor extend civil service protection to those persons designated or contracted to serve. [Ord. 2627 § 1, 1987; Ord. 2441 §§ 2, 4, 1984]. 10.25.030 Persons included — Competitive examinations — Transfers, discharges and reinstatements. A. Coverage. The provisions of this chapter shall include all full-time fully commissioned officers of the city's police and/or fire departments with the following exclusions: 1. The positions of fire chief and police chief; 11 2. All clerical, dispatchers, fire inspectors, mechanics, and other employees of either department who are not full paid commissioned police officers or full paid commissioned fire fighters; and 3. The chief examiner and civil service secretary. B. Examinations — Appointments, Reinstatement, Transfers, Suspensions, or Discharge. All appointments to and promotions covered by this chapter shall be made solely on merit, efficiency and fitness, which shall be ascertained by open competitive examination and impartial investigation. No person subject to the coverage of this chapter shall be reinstated in or transferred, suspended, or discharged from any such place, position, or employment contrary to the provisions of this chapter. [Ord. 2816 § 1, 1991; Ord. 2444, 1984]. 10.25.040 Existing positions blanketed under civil service. For the benefit of the public service and to prevent delay, injury or interruption therein by reason of the enactment of this chapter, all persons having completed probation and in the police or fire department subject to civil service coverage as defined in ECC 10.25.030 are hereby declared permanently appointed under civil service to the offices, places, positions or employments which they shall then hold respectively, and not on probation; and every such person is hereby automatically adopted and inducted permanently into civil service, into such office, place, position or employment which such person then holds. 10.25.050 Qualifications of applicants. An applicant for a position of any kind under civil service must be a citizen of the United States of America who can read and write the English language. An applicant for a position of any kind under civil service must be of an age suitable for the position applied for, in ordinary good health, of good moral character and of temperate and industrious habits; these facts to be ascertained in such manner as the commission may deem advisable. 10.25.060 Tenure of employment — Grounds for discharge — Reduction or deprivation of privileges. The tenure of everyone holding an office, place, position or employment under the provisions of this chapter shall be only during good behavior and any such person may be removed or discharged, suspended without pay, demoted, )duced in rank, or deprived of vacation privileges or other special privileges for any of the following reasons: A. Incompetency, inefficiency or inattention to or dereliction of duty; B. Dishonesty, intemperance, immoral conduct, insubordination, discourteous treatment of the public or a fellow employee, or any other act of omission or commission tending to injure the public service; or any other willful failure on the part of the employee to properly conduct himself; or any willful violation of the provisions of this chapter or the rules and regulations to be adopted hereunder; C. Mental or physical unfitness for the position which the employee holds; D. Dishonest, disgraceful, immoral or prejudicial conduct; E. Drunkenness or use of intoxicating liquors, narcotics or any other habit forming drug, liquid or preparation to such extent that the use thereof interferes with the efficiency or mental or physical fitness of the employee, or which precludes the employee from properly performing the function and duties of any position under civil service; F. Conviction of a felony or a misdemeanor involving moral turpitude; G. Any other act or failure to act which in the judgment of the civil service commissioners is sufficient to show the offender to be an unsuitable and unfit person to be employed in the public service. 10.25.070 Procedure for removal — Suspension, demotion or discharge — Investigation — Hearing — Appeal. No person in the classified civil service who shall have been permanently appointed or inducted into civil service under provisions of this chapter shall be removed, suspended, demoted or discharged except for cause, and only upon written accusation of the appointing authority or any citizen or taxpayer; a written statement of which accusation, in general terms, shall be served upon the accused and a duplicate filed with the commission. Any person so removed, suspended, demoted or discharged may, within 10 days from the time of his removal, suspension, demotion or discharge, file with the commission a written demand for an investigation whereupon the commission shall conduct such investigation. The investigation shall be confined to the determination of the question of whether such removal, suspension, demotion or discharge was or was not made for political or religious reasons, and was or was not made in good faith for cause. After such investigation, the commission may affirm the removal, or if it shall find that the removal, suspension or demotion was made for political or religious reasons, or was not made in good faith for cause, shall order the immediate reinstatement or -9employment of such person in the office, place, position or employment from which such person was removed, ispended, demoted or discharged; which reinstatement shall, if the commission so provides in its discretion, be retroactive, and entitle such person to pay or compensation from the time of such removal, suspension, demotion or discharge. The commission, upon such investigation in lieu of affirming the removal, suspension, demotion or discharge by directing a suspension, without pay, for a given period, and subsequent restoration to duty, or demotion in classification 12 trade, or pay; the findings of the commission shall be certified in writing to the appointing power and shall be forthwith nforced by such officer. All investigations made by the commission pursuant to the provisions of this section shall be had by public hearing, after reasonable notice to the accused of the time and place of such hearing, at which hearing the accused shall be afforded an opportunity of appearing in person and by counsel and presenting his/her defense. If such judgment or order be concurred in by the commission or a majority thereof, the accused may appeal therefrom to the court of original and unlimited jurisdiction in civil suits of the county wherein he resides. Such appeal shall be taken by serving the commission, within 30 days after the entry of such judgment or order, a written notice of appeal, stating the grounds thereof and demanding that a certified transcript of the record and all papers on file in the office of the commission affecting or relating to such judgment or order, be filed by the commission with such court. The commission shall, within 10 days after the filing of such notice, make, certify and file such transcript with such court. The court of original and unlimited jurisdiction in civil suits shall thereupon proceed to hear and determine such appeal in a summary manner; provided, however, that such hearing shall be confined to the determination of whether the judgment or order of removal, discharge, demotion or suspension made by the commission was or was not made in good faith for cause, and no appeal to such court shall be taken except upon such ground or grounds. 10.25.090 Filling of vacancies — Probationary period. A. Original Appointment to Department. Whenever a vacancy exists, or upon the request of the appointing authority, the commission shall certify the names of the five persons highest on the applicable eligibility list for the class for which the vacant position has been allocated but willing to accept employment. B. Promotional Appointments. Whenever the appointing authority determines that a vacancy shall be filled by a promotional appointment, the commission shall certify from the appropriate eligibility list names as follows: 1. For each and every police officer position above the rank of second class police officer, the commission shall certify the three highest names on such list, from which the appointing authority may appoint any one. 2. For each and every position above the rank of fire lieutenant in the fire department, the commission shall certify the three highest names on such list, from which the appointing authority may appoint any one. 3. For all positions in the fire department including or below the rank of fire lieutenant, the commission shall certify the highest name on the eligibility list. 4. Nothing herein shall obligate the appointing authority to fill any position. C. Procedure to Fill Vacancies. If more than one vacancy is to be filled, an additional name shall be certified for each additional vacancy. The appointing authority shall after review of the person so certified appoint one person to each such vacant position. If any person certified by the commission is removed from the list or otherwise requests not to be considered for appointment, the commission shall forthwith certify the next highest person on the list to replace those removed. The commission in their rules shall establish a procedure for removal of names from the eligibility list either prior to or subsequent to certification to the appointment authority. Whenever requisition is to be made or whenever a position is held by a temporary appointee and an eligible list for the class of such position exists, the commission shall forthwith certify the names of the persons eligible for appointment to the appointing power and the appointing power shall appoint one person so certified; provided they are found to be in fact qualified, to the position. D. Probation — Extensions. To enable the appointing authority to exercise a choice in the filling of promotions, no appointment, employment or promotion in any position in the classified service shall be deemed complete until after the completion of a satisfactorily served probationary period. The probationary period for new employees shall be 12 months. The probationary period for persons promoted or transferred to positions with different job descriptions shall be six months. Persons re-employed who have formerly acquired permanent status in the class shall not be subject to probation. During such probationary periods the appointing power may terminate the employment of the person certified, if during the performance test thus afforded, upon observation or consideration of the performance of duty, the appointing authority shall designate one of the persons certified as standing within the next three persons highest on the list. Such person shall likewise enter upon the duties until some person is found who is deemed fit for appointment, employment or promotion for the probationary period provided therefor, whereupon the appointment, employment or promotion shall be deemed to be complete. The commission shall provide a procedure in their rules for extending probationary period of any employee for up to an additional six months if requested by the appointing authority. [Ord. 2656-A, 1988; Ord. 2569, 1986; Ord. 2441 § 3, 1984]. 10.25.100 Power to create offices, make appointments and fix salaries not infringed. All offices, places, classifications, job descriptions, positions and employments coming within the purview of this iapter shall be created by the mayor and city council or mayor or whoever otherwise is vested with power and authority to select, appoint, or employ any person coming within the purview of this chapter, and nothing contained in this section shall infringe upon the power and authority of any such person or group of persons, or appointing authority, to fix the salaries and compensation of all employees employed hereunder. 13 10.25.110 Enforcement by civil action — Legal counsel. It shall be the duty of the commission to begin and conduct all civil suits which may be necessary for the proper enforcement of this chapter and of the rules of the commission. The commission shall be represented in such suits by the chief legal officer of the city, or his/her designee, but the commission may in any case be represented by special counsel appointed by it. 10.25.120 Deceptive practices — False marks. etc., prohibited. No commissioner or any other person, shall by himself or in cooperation with one or more persons defeat, deceive, or obstruct any person in respect of his right of examination or registration according to the rules and regulations of this chapter or falsely mark, grade, estimate or report upon the examination or proper standing of any person examined, registered or certified pursuant to the provisions of this chapter or aid in so doing, or make any false representation concerning the same, or concerning the person examined, or furnish any person any special or secret information for the purpose of improving or injuring the prospects or chances of any person so examined, registered or certified, or to be examined, registered or certified or persuade any other person, or permit or aid in any manner any other person to personate him in connection with any examination or registration of application or request to be examined or registered. 10.25.130 Penalty — Jurisdiction. Any person who shall willfully violate any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than $100.00 and by imprisonment in the county jail for not longer than 30 days, or by both such fine and imprisonment. 10.25.140 Definitions. As used in this chapter, the following mentioned terms shall have the following described meanings: A. "Appointing authority or power" includes every person or group of persons who, acting singly or in conjunction, as a mayor, mayor's designee, council or otherwise, is or are invested with power and authority to select, appoint, or employ any person to hold any office, place, position or employment subject to civil service. B. "Appointment" includes all means of selection, appointing or employing any person to hold any office, place, position r employment subject to civil service. C. "Commission" means the civil service commission herein created, and "commissioner" means any one of the three commissioners of that commission. D. "Full paid fire department" or "full paid firefighter" means that the officers and firemen employed in such are paid regularly by the city and devote their whole time to fire fighting and fire prevention activities and emergency medical services. E. "Full paid police department" or "full paid police officer" means that the officers and policemen employed in such are paid regularly by the city and devote their whole time to police duty. 10.25.150 Severability. If any section, subsection, subdivision, sentence, clause or phrase of this chapter shall for any reason be held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this chapter. 10.25.160 Applicability. The examination and eligibility provisions of this chapter and establishment of positions covered by civil service by the provisions of this chapter shall be effective for all appointments made after the effective date of the ordinance codified in this chapter. [Ord. 2432, 1984]. 14 Chapter 10.30 DISABILITY BOARD Sections: 10.30.010 Board created — Terms of office. 10.30.010 Board created — Terms of office. A. Board Created. There is created a disability board having that jurisdiction over police officers and firefighters as provided by Chapter 41.26 RCW and, specifically, RCW 41.26.110 composed of the following five members: 1. Two members of the city council to be appointed by the mayor; 2. One active or retired firefighter to be elected by the firefighters employed by or retired from the city; 3. One active or retired law enforcement officer to be elected by police officers employed by or retired from the city; and 4. One member from the public at large who resides within the city of Edmonds to be appointed by the other four appointed members designated in this section. B. Terms. All members appointed or elected pursuant to this section shall serve for two-year terms. An appointment may be made to fill the unexpired portion of a term less than two years in length. Members shall not receive compensation for their service upon the disability board but shall be reimbursed for all travel expenses incidental to such service. The disability board shall perform all functions, exercise all powers, and make such determinations as specified under the foregoing laws of the state of Washington as they may be amended from time to time. [Ord. 3535 § 1, 2005; Ord. 2656 § 3, 1988; Ord. 1472, 1970]. 15 Chapter 10.31 MEDICAL SELF-INSURANCE ADVISORY BOARD SK ions: 10.31. Title — Board established. 10.31.020 bership. 10.31.030 Term office. NIA 10.31.040 COMDens i n. 10.31.050 Meetings. -%N 10.31.060 Duties of board — 10.31.010 Title —Board established. There is established for the city of Edmon _ -an employee advisory board to be known as the medical self-insurance advisory board. [Ord. 3159 § 1, 1997]. 10.31.020 Membership. The Edmonds medical self-insurance advisory board shall be cum.00sed of the following: A. One representative from each of the unions who have entered info a.collective bargaining agreement with the city of Edmonds; B. One representative for the employees not represented by a union; C. The mayor or his/her designee; D. One councilmember or council designee; E. The personnel manager. Union representatives shall be selected by their respective unions. The mayor shall appoint the re sentative for -mployees that are not represented by a union. [Ord. 3159 § 1, 1997]. 1 C-.31.030 Terms of office. Err`ipigyee representatives on the board shall serve two-year terms. [Ord. 3159 § 1, 1997], 10.31.040 Co nsation. No member of th aard shall receive compensation for services performed. Reasonable expenses of the board and its members may be provi for by budgeted funds as approved by vote of the city council. [Ord. 3159 § 1, 1997]. 10.31.050 Meetings. A. The board shall have at least on ular meeting per month on such day of the month and at such time as may be determined by the board, unless a specific eting is cancelled by majority vote of the board. Special meetings may be held as often as the board deems necessary. B. For purposes of conducting the board's busine exercising its powers and for all other purposes, a quorum of the board shall consist of a majority of its membership. Any a n taken by a majority of those present, when those present constitute a quorum at any regular or special meeting of the b d, shall be deemed and taken as the action and decision of the board. C. The board shall elect such officers as it deems necessary in orderlio. conduct its business. The board shall adopt such rules of procedure as it deems necessary. D. The board shall tape record or keep minutes of all meetings held and all bu ess transacted. All records of the board shall be open for public inspection, except those that may be exempt from pub isclosure under state law. [Ord. 3159 § 1, 1997]. 10.31.060 Duties of board — Purpose. The board shall be responsible to the city council for providing advice and recommendations on the p i 'es and administration of the medical self-insurance program, the fund for which is codified in Chapter 3.10 ECC. The and shall acquire authorization from the city council prior to undertaking any project or formulating any recommendation. { 3159 1, 1997]. 16 Chapter 10.35 HEARING EXAMINER Sections: 10.35.010 Office of hearing examiner. 10.35.010 Office of hearing examiner. A. Appointment. There is created the office of the hearing examiner. The hearing examiner shall be appointed by the mayor and confirmed by the city council for a term of four years. The first year of the term will be probationary during which year he or she will serve subject to the approval of the mayor. During the balance of the four-year term the hearing examiner may be removed only for good cause. B. Temporary Appointment. The mayor shall appoint a temporary hearing examiner to serve whenever the hearing examiner informs the mayor that he or she cannot serve. C. Conflict of Interest. The hearing examiner may hold no other position in the city government of Edmonds or be an employee of or contractor for any person under contract to the city of Edmonds. The hearing examiner shall comply with the requirements of Chapter 1.14 ECC, Public Official Disclosure. D. Freedom from Improper Influence. No person shall interfere with the hearing examiner in the performance of his designated duties. The hearing examiner shall avoid prehearing contact with persons interested in a particular land use proposal, including the staff persons working on the same matter. If there is any prehearing contact, the hearing examiner shall disclose it on the record at the start of the hearing. The hearing examiner shall disqualify himself or herself if the prehearing contact would result in an unfair hearing, or an appearance of unfairness, and arrange for a temporary hearing examiner to hold the hearing. E. Powers and Duties. The hearing examiner shall review land use applications and issues as specified in Chapter 20.100 ECDC and related matters. F. Vacations and Dedications. The hearing examiner will review the comprehensive plan and report on the same prior any street vacation or dedication as provided in ECDC 15.05.020. G. Annual Review. Every year in September, the hearing examiner shall prepare and present an oral and written report to the city council outlining the actions of the hearing examiner during the preceding 12-month period. The purpose of such review is to enable the city council and the hearing examiner to coordinate city land use policy and philosophy. [Ord. 2381, 1983; Ord. 2215 § 1, 1981; Ord. 2169 § 2, 1980]. X. . 17 Chapter 10.40 PLANNING BOARD Sections: 10.40.010 Purpose. 10.40.020 Planning board. 10.40.010 Purpose. The purpose of this chapter is to provide for the creation of a planning board pursuant to Chapter 35A.63 RCW, and provide for its membership, organization, operation, and expenses. The planning board shall generally serve in an advisory capacity to the city in regional and local planning and specifically assist in the development of the comprehensive plan and zoning ordinance and their successive review and amendment from time to time. The board shall have the additional duties specifically set forth in this chapter and such ad hoc duties as the city council may from time to time assign to it. [Ord. 2342, 1983; Ord. 2170 § 2, 1980]. 10.40.020 Planning board. A. Appointment. There is created the planning board, consisting of seven members. Each member shall be appointed by the mayor, subject to confirmation by the city council. 1. Members of the board must be residents of the city of Edmonds. 2. Although the city of Edmonds is not divided into political or geographical wards, it is the intent of this section that said board membership shall maintain a reasonable balance of geographical distribution throughout the city of Edmonds. 3. It is the intent of this section to maintain a diversified representation of occupations and experience on the planning board. To this end each appointee shall be considered for board membership according to his/her field of experience, among other factors. 4. An alternative member shall be appointed to serve in the event any regular member is absent or disqualified for any reason. In the event a regular member is absent or disqualified for any reason, the alternate shall have all the powers of a regular member, including the right to vote on board decisions. The alternate shall be subject to the same attendance requirements as regular board members. In the event that a regular position on the board shall be declared vacant, the alternate shall be deemed to fill such vacancy for the remainder of the unexpired term. B. Term. In order to provide for continuity of membership, members shall be assigned a position number. The initial term of each position shall expire as set forth below, with subsequent terms being for four years each, and until the successor is appointed and confirmed: Position One - 1982 Position Five - 1984 Position Two - 1982 Position Six - 1984 Position Three - 1983 Position Seven - 1985 Position Four - 1983 Alternate - 1985 C. Powers and Duties. The planning board shall serve in an advisory capacity to the mayor and the city council in the following matters: 1. The board shall advise on all amendments to the comprehensive plan contained in ECDC Title 15 (except fees). This includes reviewing all elements of the plan on a periodic basis and reporting to the mayor and city council on the need for changes in the plan. It also includes holding public hearings and making recommendations to the mayor and city council on proposed changes to the plan, to the text of the zoning regulations, and also to the zoning map in the case of rezones, as provided in ECDC Title 20. Review of and recommendations for the plan may be prepared as a whole or in successive parts. 2. The board shall advise the mayor and city council on all parking matters that involve an amendment or other modification to any city ordinance or code section within the jurisdiction of the board. 3. The board shall serve as an ongoing park board and advise the mayor and city council on all matters relating to the acquisition and development of all city parks and recreation facilities. 4. The board shall do research and investigation on specific projects assigned to it by the mayor and city council. The board will analyze data collected, arrange for public participation, and organize its findings. The board will then present its findings to the mayor and city council detailing a summary of pertinent data, public contribution, alternatives available, and may, if appropriate, recommend a course of action, giving reasons for such recommendation. 5. The board shall have such other powers and duties as contained in Chapter 35A.63 RCW, as may be amended from time to time, that are not otherwise specifically delegated to the hearing examiner or other specific staff or agency of the city. 18 D. Operation. 1. The city planning division shall provide regular staff services to the planning board. Other city departments shall provide staff services as requested by the planning board. 2. The city council shall establish an annual budget for planning board operations for services in addition to regular staff services. Should the planning board and planning staff determine that a particular project requires services in addition to those normally provided by the city staff, then an estimate of needs detailing the type of assistance and funding required shall be presented to the city council for approval before that project is undertaken. 3. Four members of the board shall be the minimum number necessary to constitute a quorum for the transaction of business; provided that the vote of not less than three members shall be necessary to take action on any particular item before it. 4. The board shall hold regular meetings on the second and/or fourth Wednesdays of each month at 7:00 p.m. at the Edmonds city council chambers. Cancellation of a regular meeting, or a different location for a regular meeting, shall be announced at the last regular meeting preceding the affected meeting, if possible, otherwise the change will be advertised in the regular manner. 5. The city council shall meet periodically with the planning board at a city council meeting in order to review and update planning board agendas. The intent of this section is to stimulate continuing communication between mayor, city council and the planning board in an effort to identify and solve the problems facing the city of Edmonds. Nothing herein shall be construed to limit the manner in which items are placed on a planning board agenda nor the topics that may be considered by the planning board. 6. The board shall adopt rules of procedure and rules governing election and duties of officers of the board; provided, however, said rules shall pertain only to the internal procedures of the members and said rules and procedures may be questioned only by members of the board and do not give standing to question said procedures to nonmembers or other parties. [Ord. 3421 § 1, 2002; Ord. 3094 § 1, 1996; Ord. 2659, 1988; Ord. 2656 § 4, 1988; Ord. 2433, 1984; Ord. 2342, 1983; Ord. 2196 § 1, 1981; Ord. 2170 § 3, 1980]. 19 Chapter 10.50 PUBLIC LIBRARY BOARD Sections: 10.50.010 Appointment of trustees - Terms. 10.50.020 Powers and duties. 10.50.030 Survival of the fund. 10.50.040 Administration of the special library fund. 10.50.010 Appointment of trustees —Terms. As provided in RCW 27.12.190, the mayor shall appoint five trustees to serve on the public library board. Appointments shall be for a full term of five years on a rotating basis, i.e., one term shall expire and one new trustee shall be appointed each year. No trustee shall serve more than two consecutive full terms. An appointment to fill an unexpired term less than two years in length shall not be considered a full term. Trustees who are serving on the date this amendment is adopted shall complete their term of office. [Ord. 3213 § 1, 1998]. 10.50.020 Powers and duties. A. Advice to the Mayor and City Council. The public library board shall advise the mayor and city council at least annually or on such other reporting schedule as may be agreed by the mayor, council, and board, regarding: 1. The planning, management, use, care, and disposition of the library's property, equipment and physical facilities; 2. The policies, rules and regulations pertaining to the use of the library and its facilities; 3. The budget, administration, scope and quality of library resources and services provided to the city of Edmonds under its contract with the Sno-Isle library system, including any requirements for amendment of the contract; 4. The acceptance or rejection of all gifts of money or property to the city for the benefit of the library and its patrons; 5. Such other matters as the mayor or city council may assign to the board at their discretion. B. Coordination. The board shall coordinate its advice to the mayor and city council with the liaison staff of the parks, recreation, and cultural services department of the city of Edmonds before bringing matters to the mayor and council. C. Advice to the Sno-Isle Library System. The board shall advise the Sno-Isle library system, the intercounty rural library district organization which provides library services to the city of Edmonds, on policies for the development of the library's collection, the use of the library, and the scope and quality of the services provided. Nothing herein shall be interpreted to delegate the city council's contractual or budgetary authority with respect to library operations. [Ord. 3213 § 1, 1998]. 10.50.030 Survival of the fund. The fund established pursuant to the provisions of Ordinance No. 186 establishing Chapter 10.50 ECC and subsequent revisions thereof establishing special funds for the library and monies deposited in such funds shall survive the amendment of the ordinance codified in this chapter and the repeal of prior sections designed to establish such funds. The special library fund established by Ordinance No. 1312 shall, in particular, survive the amendment of the ordinance codified in this chapter and shall be maintained for voluntary contributions made for the purposes of bettering library services and therefrom awards made by the board. [Ord. 3213 § 1, 1998]. 10.50.040 Administration of the special library fund. The public library board of the city shall, from time to time as it deems appropriate, recommend expenditures from the special library fund for the purposes for which such fund was established, i.e., bettering library service. Such recommendations shall be made in an open meeting of the commission and duly recorded in the minutes after which a city claim voucher shall be certified by the chair of the board and submitted for authorization for payment to the city council in accordance with such procedures as the council shall establish. [Ord. 3213 § 1, 1998]. 1711 Chapter 10.60 EDMONDS SISTER CITY COMMISSION Sections: 10.60.010 Created. 10.60.020 Meeting. 10.60.030 Formal commission structure. 10.60.040 Contributions of private funds. 10.60.050 Expenditures and other financial procedures. 10.60.010 Created. There is hereby created within the city of Edmonds the Edmonds sister city commission, which shall be composed of not less than nine nor more than 12 interested individuals who will promote relationships with sister cities approved by the Edmonds city council. Commission members shall be appointed by the mayor with the confirmation of the city council from a list of candidates proposed by interested citizens participating in the commission's activities as well as names submitted by interested citizens. Except for the initial commission, the term of office of each member shall be for three years. At the date of initial appointment, the mayor shall provide in his or her appointment for staggered terms in order that no less than two nor more than four members shall be appointed in each year. The commission shall elect a chairman and provide through its own rules for such additional officers as it deems appropriate. The commission shall also provide for various subcommittees chaired by members of the commission and comprised of interested citizens throughout the community, governmental bodies and educational institutions who are interested in various aspects of the commission's purposes. 10.60.020 Meeting. The Edmonds sister city commission shall meet on the fourth Monday of each month at 7:00 p.m. at such locations as it shall establish throughout the city of Edmonds. The subcommittees of the commission are not city committees and shall not transact public business, and their meetings shall not be considered public meetings for the purposes of the Open Meeting and Record Act. Such subcommittees shall make recommendations only to the sister city commission. This statement of purpose is not intended to avoid any quirement of state law but rather to recognize that such subcommittees and their membership may shift from time to time, and are groups of interested citizens working together to promote the activities of the commission, subject to its approval. 10.60.030 Formal commission structure. Only those commission members appointed by the mayor and confirmed by the city council shall be covered by the city's indemnification ordinance. One purpose of the commission will be to promote its activities through broad citizen participation; provided however, that subcommittee members and other citizens participating in the commission functions shall not be covered by the city's indemnification ordinance nor the city's liability insurance coverage. Official activities of the sister city commission shall comply with established city ordinance procedures and accounting procedures. 10.60.040 Contributions of private funds. The administrative services director is hereby authorized and directed to work with the commission to establish a fund or appropriate subfund or accounting category in order to segregate private monies contributed to the city for the purpose of assisting or promoting the sister city commission effort. The purpose of this segregation will be to keep and maintain the private character of these funds in order that they may be used to entertain and host visiting dignitaries and to do other things which the city would be otherwise prohibited from doing with public funds. In all other respects, the funding of the commission shall be on such basis as the council shall determine in accordance with its annual budget; provided, however, it is the intention of the city council that staff support be provided through the office of the mayor and that special projects of the commission be funded through its applications to other interested bodies. For example, the promotion of tourism through Japanese tourists may trigger application for tourism funds, an art project may result in applications to the Edmonds arts commission, and other similar projects will be funded in accordance with their merit and the purposes for which other available funds are provided. The commission is urged and expected to continue its fund raising efforts in order to provide a separate source of private funding for its projects. 10.60.050 Expenditures and other financial procedures. Expenditure of all funds shall be expended in accordance with generally accepted accounting procedures and those procedures established by the administrative services director and the state auditor; provided, however, that private funds donated for the purpose of hosting shall be segregated from public funds. The commission shall maintain a proper audit trail for all expenditures and carefully differentiate between public and private funds to the end that no public monies of the city are spent on promotional hosting or visiting dignitaries except in conjunction with public celebrations and events approved for public expenditure by the opinion of the State Auditor id Attorney General. [Ord. 2875 § 1, 1992; Ord. 2715, 1989]. 21 Chapter 10.70 LODGING TAX ADVISORY COMMITTEE Sections: 10.70.010 Creation — Conflict of provisions. 10.70.020 Membership. 10.70.030 Duties. 10.70.040 Expiration of appointment. 10.70.010 Creation — Conflict of provisions. A lodging tax advisory committee is hereby created pursuant to the provisions of Chapter 67.28 RCW. The duties and structure of the advisory committee shall be interpreted and applied pursuant to the requirements of Chapter 67.28 RCW as the same exists or is amended, and, in the event of conflict between the provisions of this chapter and Chapter 3.34 ECC, and Chapter 67.28 RCW, the state statute shall control. In the event of ambiguity, all ambiguity shall be resolved in favor of and in conformance with the provisions of the state statute. [Ord. 3166 § 3, 1997]. 10.70.020 Membership. The lodging tax advisory committee shall consist of five members appointed by the city council. Committee membership shall consist of: A. Two members of representatives of businesses required to collect tax under this chapter; B. Two members who are persons involved in activities authorized to be funded or supported by revenues received under this chapter; C. A fifth representative who shall be an elected official of the city and who shall chair the commission; D. The committee may be enlarged at the discretion of the city council recognizing there must always be equal -epresentation from the tax providers and the tax users as required by RCW 67.28.1817, as now or hereafter amended; E. In addition, the city council may appoint an additional nonvoting member who is an elected official of the city and a nonvoting member who is an elected official of Snohomish County. Persons eligible for appointment under subsection A of this section are not eligible for appointment under subsection B and persons who are eligible under subsection B of this section are not eligible for appointment under subsection A. [Ord. 3166 § 3, 1997]. 10.70.030 Duties. The committee shall provide advice and recommendations in accordance with the provisions of Chapter 67.28 RCW as the same exists or is hereafter amended. The city council shall submit for review and recommendation an imposition of taxes under this chapter, an increase in the rate of tax imposed under this chapter, repeal of an exemption from the tax imposed under this chapter, or a change in the use of revenue received under this chapter. The city council shall submit such items for consideration at least 45 days before its final action on a passage of a proposal by the city council. The advisory committee shall receive public comment on the proposal in accordance with the provisions of Chapter 3.34 ECC. The failure of the advisory committee to timely submit comments before final action on or passage of the proposal shall not prevent the city council from acting on such a proposal. In the event that the city council determines it appropriate in its sole discretion to amend a proposal following the receipt of comment by the advisory committee, it is not required to resubmit such proposal to the advisory committee before acting. [Ord. 3166 § 3, 1997]. 10.70.040 Expiration of appointment. An appointment of each member of the committee shall expire annually on December 31 st. The city council shall review membership annually and shall make such changes as it deems appropriate replacing or retaining members as it, in its sole discretion, shall deem appropriate. [Ord. 3166 § 3, 1997]. 22 Chapter 10.80 CITIZENS' COMMISSION ON COMPENSATION OF ELECTED OFFICIALS Sections: 10.80.010 Purpose. 10.80.020 Duties. 10.80.030 Eligibility. 10.80.040 Appointment. 10.80.050 Operation. 10.80.060 Compensation schedule recommendation 10.80.070 Open meetings. 10.80.080 Referendum. 10.80.090 Reimbursement unaffected. 10.80.010 Purpose. It is the policy of the city of Edmonds to base the compensation of elected officials on realistic standards so that elected officials of the city may be compensated according to the duties of their offices, and so that citizens of the highest quality may be attracted in public service. To effectuate this policy, the Edmonds' citizens commission on the compensation of elected officials ("compensation commission") is hereby created consisting of seven members with duties and responsibilities as set forth below. [Ord. 3508 § 1, 2004]. 10.80.020 Duties. The compensation commission shall study the relationship of compensation for each respective position. Except as provided otherwise below, the compensation commission shall be solely responsible for its own organization, operation, ,nd action and shall enjoy the fullest cooperation of all elected officials, departments and agencies of the city of Edmonds )rd. 3508 § 1, 2004]. 10.80.030 Eligibility. The compensation commission shall consist of seven members, all of whom must be at least 21 years of age, registered to vote, and maintain personal residence within the boundaries of the city of Edmonds. No city of Edmonds official or public employee, immediate family member of the official or employee shall be eligible for membership on the compensation commission. As used in this section, the phrase "immediate family" means parents, spouse, siblings, children, or dependent relative of the official or employee, whether or not they are living in the same household. [Ord. 3508 § 1, 2004]. 10.80.040 Appointment. Two members of the compensation commission shall be appointed by the city council and one member shall be appointed by the mayor; the appointed three members shall select the other four members. The members of the compensation commission shall serve four-year terms originally commencing on October 1, 1999, except that the first seven members shall be appointed for different terms as follows: (a) one member appointed by the city council for a period of four years; (b) one member appointed by the city council for a period of two years; (c) two of the members selected by those three members to serve for periods of four years; and (d) two of the members elected by those three members to serve for periods of two years. No person may serve more than two consecutive terms. Members of the compensation commission may be removed by the mayor, with the approval of the council, only for cause of incapacity, incompetence, neglect of duty, malfeasance in office, or for a disqualifying change of eligibility. The unexcused absence of any member of the commission from two consecutive meetings of the commission shall constitute relinquishment of that person's membership on the commission. Such relinquishment creates a vacancy in that person's position on the commission. Upon a vacancy in any position on the commission, a successor shall be selected and appointed to fill the unexpired term. The selection and appointment shall be concluded within 30 days of the date that position becomes vacant and shall be conducted in the same manner as originally provided for that person's appointment. [Ord. 3508 § 1, 2004]. 0.80.050 Operation. The members of the compensation commission shall elect a chair from among their number. The commission shall prepare a recommended schedule of compensation by an affirmative vote of not less than five members of the commission. Members of the commission shall receive no compensation for their services. [Ord. 3508 § 1, 2004]. 23 10.80.060 Compensation schedule recommendation. The commission shall file its schedules of recommended compensation for elected officials of the city with the city clerk no later than the first Monday in May of each even -numbered year. The signature of the chair of the commission shall be affixed to each schedule submitted to the city clerk. The chair shall certify that the schedule has been adopted in accordance with the provisions of this chapter and with the rules, if any, of the commission. Such schedules shall become effective only upon adoption by the city council and in accordance with state law. [Ord. 3508 § 1, 2004]. 10.80.070 Open meetings. All meetings, actions, hearings, and business of the commission shall be subject to the Open Public Meetings Act as set forth in Chapter 42.30 RCW. Prior to the filing of any compensation schedule, the commission shall hold no fewer than two public hearings thereon within the two months immediately preceding the filing of its recommendation. [Ord. 3508 § 1, 2004]. 10.80.080 Referendum. Any ordinance enacting change in compensation shall be subject to referendum petition by the citizens in accordance with city ordinance. Any ordinance which enacts a commission recommendation shall be subject to Article XXX, Section 1 of the Washington State Constitution regarding increases in elected officials' compensation during their term of office. [Ord. 3508 § 1, 2004]. 10.80.090 Reimbursement unaffected. The mayor and councilmembers shall receive reimbursement for their action and necessary expenses incurred in the performance of the duties of their office, or the council by ordinance may provide for a per diem allowance. Procedure for approval of claims for expenses shall be as provided by ordinance, consistent with state law. [Ord. 3508 § 1, 2004]. 24 Chapter 10.90 EDMONDS HISTORIC PRESERVATION COMMISSION Sections: 10.90.010 Creation and size. 10.90.020 Composition of the commission 10.90.030 Terms. 10.90.040 Powers and duties. 10.90.050 Rules and officers. 10.90.060 Commission staff. 10.90.010 Creation and size. There is hereby established an Edmonds historic preservation commission, consisting of seven members, as provided in ECC 10.90.020. Members of the Edmonds historic preservation commission shall be appointed by the mayor and approved by the city council and shall be residents of Edmonds, except as provided in ECC 10.90.020(B). [Ord. 3392 § 1, 2002]. 10.90.020 Composition of the commission. A. All members of the commission must have a demonstrated interest or competence in historic preservation and possess qualities of impartiality and broad judgement. B. The commission shall consist of seven voting members and one nonvoting, ex officio position to be filled by an Edmonds city council member. The commission shall include at least two professionals who have experience in identifying, evaluating and protecting historic resources and are selected from among the disciplines of history, architecture, architectural history, historic preservation, planning, cultural anthropology, archaeology, cultural geography, "merican studies, law and/or real estate. Four positions shall be filled by citizens of Edmonds with the demonstrated ,terest in historic preservation. One position shall be filled as recommended by the Edmonds South Snohomish County Historical Society. A commission action that would otherwise be valid shall not be rendered invalid by the temporary vacancy by one or all of the professional positions, unless the commission action is related to meeting certified local government (CLG) responsibilities cited in the certification agreement between the mayor and the historic preservation officer. Furthermore, in special circumstances, exceptions to the residence requirement of commission members may be granted by the mayor and city council in order to obtain representatives from those disciplines. (Ord. 3526 § 1, 2004; Ord. 3392 § 1, 2002). 10.90.030 Terms. The original appointment of members to the commission shall be as follows: three for two years, two for three years, and two for four years. Thereafter, appointments shall be made for a three-year term. Vacancies shall be filled by the mayor for the unexpired term in the same manner as the original appointment. [Ord. 3392 § 1, 2002]. 10.90.040 Powers and duties. The major responsibility of the historic preservation commission is to identify and actively encourage the conservation of the city's historic resources by initiating and maintaining a register of historic places and reviewing proposed changes to register properties; to raise community awareness of the city's history and historic resources; and to serve as the city's primary resource in matters of history, historic planning, and preservation. In carrying out these responsibilities, the historic preservation commission shall engage in the following: A. Conduct and maintain a comprehensive inventory of historic resources within the boundaries of the city and known as the Edmonds historic inventory; publicize and periodically update inventory results. Properties listed on the inventory shall be recorded on official zoning records with a "HI" (for historic inventory designation). This designation shall not change or modify the underlying zone classification. B. Initiate and maintain the Edmonds register of historic places. This official register shall be compiled of buildings, structures, sites, objects and districts identified by the commission as having historic significance worthy of recognition and protection by the city and encouragement of efforts by owners to maintain, rehabilitate and preserve properties. C. Review nominations to the Edmonds register of historic places according to criteria in ECDC 20.45.010 and adopt standards in its rules to be used to guide this review and the issuance of a certificate of appropriateness or waiver. D. Review proposals to construct, change, alter, modify, remodel, move, demolish or significantly affect properties or districts on the register as provided in Chapter 20.45 ECDC and adopt standards in its rules to be used to guide this review and the issuance of a certificate of appropriateness or waiver. 25 E. Provide for the review either by the commission or its staff of all applications for approvals, permits, environmental ssessments or impact statements, and other similar documents pertaining to identified historic resources or adjacent properties. F. Conduct all commission meetings in compliance with Chapter 42.30 RCW, Open Public Meetings Act, to provide for adequate public participation and adopt standards in its rules to guide this action. G. Participate in, promote and conduct public information, educational and interpretive programs pertaining to historic and prehistoric resources. H. Establish liaison support, communication and cooperation with federal, state and other local government entities which will further historic preservation objectives, including public education, within the city. I. Review and comment to the city council on land use, housing and redevelopment, municipal improvement and other types of planning and programs undertaken by any agency of the city, other neighboring communities, Snohomish County, the state or federal governments, as they relate to historic resources of the city. J. Advise the city council and chief local elected official generally on matters of Edmonds history and historic preservation. K. Perform other related functions assigned to the commission by the city council or chief local elected official. L. Provide information to the public on methods of maintaining and rehabilitating historic properties. This may take the form of pamphlets, newsletters, workshops or similar activities. M. Officially recognize excellence in the rehabilitation of historic buildings, structures, sites and districts, and new construction in historic areas; and encourage appropriate measures for such recognition. N. Be informed about and provide information to the public and city departments on incentives for preservation of historic resources including legislation, regulations and codes which encourage the use of adaptive reuse of historic properties. O. Review nominations to the State and National Registers of Historic Places. P. Investigate and report to the city council on the use of various federal, state, local or private funding sources available to promote historic resource preservation in the city. Q. Serve as the local review board for special valuation and: 1. Make determinations concerning the eligibility of historic properties for special valuation; 2. Verify that the improvements are consistent with the Washington State Advisory Council's standards for rehabilitation and maintenance; 3. Enter into agreements with property owners for the duration of the special valuation period as required under WAC 254-20-070(2); 4. Approve or deny applications for special valuation; 5. Monitor the property for continued compliance with the agreement and statutory eligibility requirements during the 10-year special valuation period; and 6. Adopt bylaws and/or administrative rules and comply with all other local review board responsibilities identified in Chapter 84.26 RCW. R. The commission shall adopt rules of procedure to address subsections C, D, F, O and Q of this section. [Ord. 3392 § 1, 2002]. 10.90.050 Rules and officers. The commission shall establish and adopt its own rules of procedure, and shall select from among its membership a chairperson and such other officers as may be necessary to conduct the commission's business. [Ord. 3392 § 1, 2002]. 10.90.060 Commission staff. Commission and professional staff assistance shall be designated by the mayor with additional assistance and information to be provided by other city departments as may be necessary to aid the commission in carrying out its duties and responsibilities under this chapter. [Ord. 3392 § 1, 2002]. Footnotes 1. Prior legislation: Ords. 1765, 1827, 2035 and 2976. 2007 City Council Retreat Edmonds City Council 2007 Council Retreat March 23-24, 2007 -:' Positioning for Our Financial Future Session Overview • Increased Understanding of Financial Position ■ Describe Edmonds Future Financial Position ■ Discuss Strategies for Managing the Future ■ Council Sign -Off on Strategies for the Future Revenue Strategies .• Efficiency Strategies Reduction Strategies Compensation Strategies Page 1 2007 City Council Retreat lq° Edmonds' Current Financial Position Moody's Bond Rating: Al ❖ "STRONG TAX BASE APPRECIATION IN AFFLUENT COMMUNITY JUST NORTH OF SEATTLE" ❖ City's financial operations are well managed, benefiting from a combination of spending practices and healthy revenue growth..." ❖ "General Fund reserves are favorable and stable, representing over 25% of General Fund Revenues ..." Edmonds' Financial Position General Fund Reserves • General Fund 12/31/2006 Balance: $4.2 million Plus ■ Emergency Reserve Balance of $2.0 Million Policy has been not to use Emergency Reserve Page 2 2007 City Council Retreat r` Efficiencies/Best Business Practices Here is How this Translates ■ Council e-Agendas ■ Staff Training and Continuing Education • Purchase Cards for Acquisitions ■ Expanded City Hall Hours • Biennial Budget ■ Not in 2004 Strategic Plan On-line Credit Card Payment Financial System Overhaul New Phone System .• New Permitting System o New Business License System tiwy7` Financial Management/Spending Here is How this Translates ■ 2001: SnoIsle Library: $1,045,000 Savings ■ 2003: Expenditure Cuts of $1,248,000 ■ 2006, 2007, 2008: Street Transfer Reductions ■ 2002-2007: Revenue Increases 2003: EMS Levy ❖ 20021 2003, 2006, 2007 Banked Capacity 2004: OV Water Franchise ❖ 20041 2005, 2007: LID Guarantee •:• 2003, 2007, 2008: Utility Tax :• 2007: Sales Tax Sourcing (We Hope) Page 3 2007 City Council Retreat Strong Revenue Growth Item 2002 2003 2004 2005 2006 2007 2008 Property Taxes Banked Capacity - 2002 101,369 102,303 103,407 1 104,441 105,465 106,540 107,605 Banked Capaclty - 2003 n/a 111,028 112,13E 113,259 114,392 115,536 116,691 Banked Capaclty - 2006 n/a n/a n/a n/a 142,500 143,925 145,364 Banked Capaclty - 2007 n/a n/a n/a n/a n/a 138,677 140,064 Banked Sub -Total 101,369 213,410 215,545 1 217,700 362,377 504,678 509,725 EMS Levy 0 0 600,000 606,000 612,060 618,181 624,362 Sales Tax Sourcing 0 0 0 0 0 373,125 429,094 Utility Tax Increase Solid Waste n/a 165,664 246,316 252,215 265,602 260,000 270,000 Cable Franchise n/a n/a n/a n/a n/a 85,000 87,295 Telephone n/a n/a n/a n/a n/a 55,000 56,485 Water n/a n/a n/a n/a n/a 8,300 8,524 Natural Gas n/a n/a n/a n/a n/a 27,700 28,446 5[or . Water ri/a n/a n/a n/a n/a 3U4,000 1O6,808 Utility Tax Sub -Total 0 185,664 248,318 252,215 265,602 1 540,000 557,560 OV Franchise 0 0 28,000 118,000 122,000 116,000 119,000 LID Guaranty Transfer 0 0 150,000 125,000 100,000 0 0 Total Revenue 101,369 399,075 1,241,663 1,318,915 1,462,039 2,151,983 2,239,741 '1 Financial Future: Projection 4,000 000 2,000 ,000 tz.oDo (4,000 t5,uon [e,uou [1o,ouu (12,000,0 0) 2007 2008 2009 2010 2011 2012 i ,000y Without EMS levy � 7 ,aBo} .000y � Page 4 Page 4 2007 City Council Retreat Financial Future: Budget Drivers Property, Sales, Utility Tax = c. 75% of Revenue Labor, Fleet, Construction = c. 75% of Costs 0% 2% 4% 6% 6% 10% 12% Revenue: Property Tax Sales Tax Utility Tax Expenditures: Labor Fleet Construction Inflation CPI: 2006 Financial Future: Projection Click for Projection Model Page 5 2007 City Council Retreat Managing the Financial Future Session Overview ■ Earlier we reviewed the City's present and future fiscal outlook ■ This afternoon we look at strategies for managing our financial future in the areas of: Revenue Strategies Efficiency Strategies cLIn Red ioS t r u'tegies • V�. .• Compensation Strategies 16-:7` Managing the Financial Future Revenue Options ■ Let's begin by taking a detailed look at the revenue options currently open to the City ■ These options are grouped into three major categories: :• Those requiring Council approval Those requiring Voter approval Those requiring State legislative approval Page 6 2007 City Council Retreat Financial Future: Revenue Options Source 1 2009 1 2009 1 2010 1 2011 Total Council Approval: B&0 Tax(0,2% Maximum) 2,799,916 2,869,914 2,941,661 3,015,203 11,626,694 Cable W Utility Tax to 6% 450,000 461,250 472,781 484,600 1,866,631 Gambling Tax' 0 500,000 750,000 750,000 2,000,000 Water Utility Tax Increase to 7% 33,541 34,380 35,239 36,120 139,280 Sewer Utility Tax Increase to 7% 46,667 47,833 49,029 50,255 193,7B4 Storm Utility Tax Increase to 7% 17,939 18,388 18,847 19,319 ]4,493 Reduce Cemetery Subsidy 75,000 77, 250 79,568 81,955 313,773 EmivilemV Transport Feae aS.>i'l`+0 678,441 695,402 712,787 730,607 1 2,817,237 Broadband Initiative/Econ Development I 7 1 7 7 Emergency Reserve Fund ($2,0 million) 0 0 0 0 0 Voter Approval: General Property Tax Levy Lid Lift 0 14,896,445 15,045,409 15,195,864 45,137,718 EMS Property Tax Levy Lid Lift ' 0 0 302,906 386,816 769,802 Transportation Benerit Districts 0 1,000,000 1,000,000 1,000,000 31000,000 Electric Utility Tax Increase to 7%• 234,333 240,192 246,196 252,351 973,072 Natural Gas Tax Increase to 7% ° 133,473 136,809 140,230 143,735 554,247 Telephone Utility Tax Increase to 7% c 2391313 245,295 251,428 257,713 993,749 Solid Waste Utility Tax Increase to 7% e 45,000 46,125 47,27E 48,460 186,963 State Legislative Approval: Ferry TrafOc Mitigation 500,000 1.0,000 500,000 500,000 2,000,000 REET for Transportation 750,000 750,000 750,000 750,000 3,000,000 Grand Total 5,553,622 22,058,032 22,950,659 23,218,397 75,649,343 - Budget, Page 11 Managing the Financial Future EMS Levy Option The current budget calls for approval of a 2007 EMS levy, which would become effective in 2008. Fire Chief Tom Tomberg will now provide an overview of the EMS levy. Page 7 2007 City Council Retreat Managing the Financial Future 2007 EMS Levy ■ Would raise approximately $1.2 million Maintains existing service levels ❖ Balances 2008 budget ❖ Addresses Fire unmet needs • Would increase levy from 0.36124 to 0.5 per thousand dollars of assessed valuation ❖ Rate falls annually due to tax limitations ❖ As rate falls, General Fund subsidy grows ■ Impact on a $500,000 home is $5.83/month, or $70 annually Managing the Financial Future 2007 EMS Levy Uses ■ Direct emergency medical services ■ Station 20 purchase contract ■ Apparatus replacement ■ Public safety bonds in 1996 and 2003 ■ ESCA emergency services ■ Emergency communications system ■ LEOFF health care expenses Page 8 2007 City Council Retreat Managing the Financial Future City and Other Involvement City role No advocacy, no "vote for this issue" ❖ Information only ■ Advocacy roles ❖ IAFF Local 1828 ❖ Edmonds Fire Safety Foundation ❖ Ad hoc citizens' groups: no City resources —' Managing the Financial Future Efficiency & Reduction Options ■ Besides increasing revenues, the two remaining budget balancing strategies are efficiencies and budget reductions. In this part of the agenda we will look at: .• Efficiencies and best practices :• Approaches to budget reductions Page 9 2007 City Council Retreat v Managing the Financial Future Efficiency Options ■ Public records request: automation ■ Internet payment extended to all operations ■ Eliminate paper/paper forms where possible ■ Reassigning staff based on current needs ■ City medical coverages and options is City bargaining and compensation policies t.. 4. k_ Managing the Financial Future Efficiency Options: Labor Cost Options (Debi Humann) ■ Alternatives for medical plan coverage ❖ Splitting savings with employees ■ Compensation and bargaining policies Collective bargaining parameter discussion ❖ Non -represented compensation Page 10 2007 City Council Retreat r. Managing the Financial Future Medical Plan Alternative ■ Current medical plan, is the most expensive AWC plan No routine or preventative health care ■ PPO Alternative plan ❖ Covers preventative health care at 100% ❖ Reduced premium cost for employees and City ■ PPO limitations $10 office co -pays Chiropractic reduced from 25 to 15 annually Hospital coverage reduced from 100% to 90% ■ Potential cost savings of $300,000 �_.' Managing the Financial Future Incentives for Changing Plans ■ Current employee medical problem ❖ Retiree medical coverage very limited ❖ Cost $1,000/month for employee/spouse ❖ Take a percent of savings for retiree plan ■ "Profit" sharing ❖ Split savings with employees as incentive Page 11 2007 City Council Retreat Managing the Financial Future Compensation Parameters Material will be distributed on site. Due to the nature of the discussion this may be an Executive Session topic. Managing the Financial Future Budget Reduction Strategies ■ $500,000 equals 1.5% of General Fund ■ Possible approaches ❖ Across the board 1.5% reductions ❖ Elimination of programs or services ❖ Reduction of overhead costs Page 12 COMPENSATION STUDY SHOULD ONE BE DONE? Requested by: Council r� e 1 CANDIDATE DEBATES CHANNEL 21 Requested by: Councilmember Plunkett • C� DATE: January 2007 TO: Council President Olson FROM: Councilman Plunkett RE: Candidate Debates I am interested in having the city council discuss and possibility take action with respect to how civil organizations (as defined by existing policy) hold candidate debates. My intent is not to complicate or make unreasonable restrictions, but to make sure any such debates are done in an orderly fashion that is fair to all candidates, public and press. Therefore, I would like to suggest that a city policy include that any civic organization which would like to hold a candidate debate in city council chambers give all candidates 30 day notice. The intent is to prevent any last minute events that, due to last minute scheduling, result in being unfair to both candidates and public. A 30 day notice gives all candidates time to schedule and the public and press has adequate notice. i-%V. ED11, City of Edmonds Community Services Date: January 7, 2004 Department To: Gary Haakenson, City Council From: Stephen Clifton, AICP, Community Services Director Subject: 2002 City Council Retreat - - City of Edmonds Official Web Site and Channel 21 Access Policies and Disclaimer Attached you will find a memorandum from Zach,Lell, Attorney with Ogden Murphy Wallace, regarding the City of Edmonds' official web site and Channel 21. This topic was discussed during the City Council Retreat on February 2, 2002. The memorandum includes discussion on the purposes of the City's website and Channel 21 in addition to draft policies and a disclaimer that specifies the extent and limitations of access available for both media. The policies help prevent indiscriminate public use of Channel 21 and the City's official web site. A disclaimer related to the City's web site also warns online visitors the City disavows any responsibility for the content of other Internet pages to which the City's site may provide a link. City of Edmonds cQ Community Services MEMORANDUM DATE: January 28, 2002 TO: Mayor Haakenson, Edmonds City Councilmembers, Stephen Clifton CC: Scott Snyder, City Attorney, Cindi Cruz FROM: Zach Lell RE' City of Edmonds Official Web Site and Channel 21 -- Access Policies and Disclaimer I. INTRODUCTION The -City of Edmonds maintains an official web site for purposes of posting information about City governance and other material relevant to the Edmonds community. The City also operates cable Channel 21, a ' full-time public access television channel broadcasting City Council meetings and other information regarding local governmental affairs. The City occasionally permits other organizations and governmental agencies to post information on both media. Such posting occurs directly in the case of Channel 21, and through Internet links in the case of the City's web site. In order -to prevent indiscriminate public use of Channel 21 and the City's official web site (thereby creating a "public forum" available to all users), City staff have asked our office to draft policies specifying the extent and limitations of access available for both media. The City has also requested a disclaimer for its web site that would warn on-line visitors the City disavows any responsibility for the content of other Internet pages to which the City's site may provide links. The attached documents respond to this request. II. DISCUSSION A. Web Site and Channel 21 Access Policies Because the City's web site and television channel potentially represent government "property," limitations on public access to such media implicate various constitutional constraints. Generally, the validity of speech restrictions on governmental property is determined by reference to the character of property at issue. Government property other than such historic {JZL507387.D0C;1 /00006.040074/) Mayor Haakenson, Edmonds City Councilmembers, Stephen Clifton January 28, 2002 Page 2 public gathering places as parks, sidewalks and streets (i.e., the "traditional public forum",)1 may typically be reserved for its intended governmental purpose without regard to any desired public use thereof.2 Restrictions on speech in this arena are valid_ if viewpoint neutral and reasonable in light of the property's purpose, a comparatively easy standard to satisfy.3 Our chief concern regarding the City's web site and Channel 21 is the potential characterization of these media as "designated public fora"; i.e., property that the City has effectively (and perhaps inadvertently) "opened" for public speech by permitting communicative use by a wide variety of speakers Once particular government property is judicially recognized as a designated public forum, any restrictions on speech are invalid unless they are narrowly tailored to advance a compelling government interest.. Government regulations rarely satisfy the "compelling interest" standard. Very few court cases have directly addressed the issue of permissible speech regulations within a municipal web site or public access television channel. In The Putnam Pit, Inc. v. Cityof Cookeville, the Sixth Circuit Court of Appeals held that a City's web site was not a public forum for constitutional purposes.b Likewise, in Denver Area Edu. Tel. Cons., Inc. v. Federal Comm. Comm'n, the United States Supreme Court refused to apply forum analysis to a government access television channel. Despite this favorable authority, however, we advise the City to proceed cautiously when regulating speech within the context of its web site and Channel 21. The Washington State Constitution affords greater free speech protection than its federal counterpart,8 and may ultimately recognize a broader category of public fora than exists under federal law.9 Similarly, the Ninth Circuit Court of Appeals (the federal rulings of which bind Washington courts) may ultimately decline to follow the Sixth Circuit's Putnam Pit holding, and may instead characterize municipal web sites as public fora. Our office has accordingly drafted the attached access policies conservatively, and has attempted to establish clearly -defined guidelines for access to both the City's web -site and Channel 21. Perry Edu. Ass'n v. Perry Local Edu. Ass'n, 460 U.S. 37, 45 (1983). 2 Id at 46. 3 Id. - 4 Id. at 45. S Id. G 221 F.3d 834, 842-46 (6`h Cir. 2000). 518 U.S. 727, 749-750 (1996). 8 See, e.g., Collier v. City of Tacoma, 121 Wn.2d 737, 747-48, 854 P.2d 1046 (1993). 9 Cf. Briton v. City of Erie, 933 F. Supp. 1231, 1268 (W.D. Pa. 1995) ("A public -access cable television channel -is a public forum"); Missouri Knights of the Ku Klux Klan v. Kansas City, 723 F. Supp. 1347, 13551 (W.D. Mo. 1989). Mayor Haakenson, Edmonds City Councilmembers, Stephen Clifton January 28, 2002 Page 3 B. Disclaimer Many cities post a disclaimer on their official web sites which, inter alia, warns Internet visitors that sites to which the city's web page may provide links are beyond the city's regulatory reach. Our office has similarly crafted the attached disclaimer to achieve this purpose. The draft was adopted from various other Washington municipal web site disclaimers, and is worded expansively in order to preclude various forms of potential liability. III. CONCLUSION The lack of precedent regarding municipal regulation of official web sites and public access television prevents definitive legal answers in this arena. To avoid potential challenges to the City of Edmonds' access restrictions, we advise the City to apply the attached policies consistently and evenhandedly. Should any issue regarding public access to either medium arise, please contact our office immediately. City of Edmonds Official Web Site Disclaimer The City of Edmonds web. page was developed for the limited purpose of providing information regarding the Edmonds community, local government services, local civic events, local news events, local regulations, and other designated materials directly and uniquely relevant to the City of Edmonds and its residents. Nothing in this web page shall be deemed to constitute a public forum. Neither the City of Edmonds, Washington, nor any agency, officer, or employee of the City of Edmonds nor the copyright holder(s) warrant the accuracy, reliability, or timeliness of any information in this web page and shall not be liable for any losses caused by any person or entity's reliance on the accuracy, reliability, or timeliness of such information. This publication is provided "as is" without warranty of any kind, either express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, or non -infringement. Portions of information obtained from this Web page, including but not limited to the Edmonds City Code and. the Edmonds Community Development Code, may be incorrect or outdated. Any person who relies on any such information does so at his or her own risk. In no event will the City of Edmonds be liable for any direct, indirect, punitive, special, incidental or consequential damages, however they may arise, resulting from the reliance of any person or entity upon such information, even if the City has been advised of the possibility of such damages. The City of Edmonds reserves the right, in its -sole discretion and without obligation, to make amendments to or correct any error or omissions in any portion of these materials at any time, or to remove all or any portion thereof. All comments, guest book entries, suggestions, ideas, notes, drawings, concepts, or other information -disclosed or offered to the City of Edmonds by this site or in response to solicitations in this site (collectively, the "Comments") shall remain the property of the City. None of the Comments shall be subject to any obligation of confidence on the part of the City of Edmonds and the City shall not be liable for any use or disclosure of any Comments. Without limitation of the foregoing, the City of Edmonds shall exclusively own all presently known or hereafter existing rights to the Comments of every kind and nature throughout the world and shall.be entitled to unrestricted use of the Comments for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Comments. Many of the Internet pages maintained by the City of Edmonds contain links to sites that are not under the control or management of the City or any agency, officer, or employee of the City of Edmonds, or the copyright holder(s) (hereafter, the "City"). Accordingly, the City makes no representation concerning the content of these sites, nor can the fact that the City has provided these links serve as. an endorsement of any of these sites. The (JZL507144. DOC; 2/00006.900020/) City provides these links only as a courtesy to you. This disclaimer serves to inform you that the City has not examined or approved any of these sites, and therefore cannot make any representations regarding any material found there. Some people may find such material offensive, inappropriate or unsuitable for viewing by minors. The City accordingly encourages you to exercise discretion while browsing the Internet. Other Internet sites may link to the City of Edmonds web page. Since these sites ate not under the control or management of the City, the City makes no representation concerning the content of these sites to you, nor can the fact that these sites provide links to any City page(s) serve as the City's endorsement of any of these sites. Cori�munications sent via the Internet or through this web page shall in no way be deemed to constitute legal notice to the City of Edmonds or any of its officers, agents, or employees, where notice to the City is required by any law, rule, regulation, or contract. {JZL507144: DOC; 2/00006.900020/) CITY of EDMONDS - WEB SITE ACCESS AND LINKAGE POLICY The City of Edmonds web site was developed for the limited purpose of providing information regarding the Edmonds community, local government services, local civic events, local news events, local regulations, and other designated materials directly and uniquely relevant to the City of Edmonds and its residents. Nothing in this policy or in the City's web site itself shall be deemed to create or constitute a public forum. The City of Edmonds does not provide web site hosting for the general public, but does provide Internet links to the web sites of designated government, non-profit, civic and local organizations that have a recognized relationship with the City of Edmonds. Any organization or group hosting a web site to which the City of Edmonds web page provides a link shall be solely and exclusively responsible for the content thereof. [Please see the City of Edmonds Web Page Disclaimer LINK] Organizations or groups desiring to place a link on the City of Edmonds web site must apply in writing to the City of Edmonds Community Services Department. The application must contain the following information: • The name, business address, and telephone number of the organization ■ The URL or Internet address of the organization's web site ■ The content of the organization's web site ■ The organization's mission or purpose ■ An explanation of the organization's specific relevance to the Edmonds community is The organization's designated contact person for purposes of communicating with the City of Edmonds * The organization's registered agent for purposes of receiving legal service of process 11 The identity of other web sites that provide an Internet link to the ,organization's web site The City of Edmonds Community Services Department will determine whether or not to approve each organization's application and will notify the applicant of the decision within ten days of receiving an application. In rendering its decision, the Community Services Department shall consider the guidelines enumerated below in light of the stated purpose of the City of Edmonds web site. Generally, Internet links to the following types of web sites may be permissible: ■ Governmental and public educational institutions located within the State of Washington ■ Local organizations having a recognized relationship with the City of Edmonds or with which the City of Edmonds partners in order to provide services, including but not limited to the Edmonds Chamber of Commerce, Port of Edmonds, and Stevens Hospital ■ Local cultural, artistic, civic or non-profit recreational organizations having either a recognized relationship with the City of Edmonds or specific and direct relevance to City residents ■ Tourist information {JZL507167. DOC;3/00006.900020/} Information regarding- Edmonds community events, such as festivals, art displays and neighborhood fairs Generally, Internet links to the following types of web sites are not permitted: k Political candidate sites or sites advocating a position on political issues, including but not limited to ballot propositions ■ For -profit business or commercial sites Individual personal home pages Sites containing religious proselytizing or spiritual instruction to the extent consistent with Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) or other controlling case or statute ■ Sites containing illegal, obscene or pornographic content Nothing -herein shall be deemed to abridge or otherwise limit the City's unrestricted and sole discretion to restrict, limit, alter or remove any material or link posted on the City's official web site at any time and without notice for any reason, including but not .limited to administrative convenience, space availability or appearance of impropriety. The fact that the City has previously authorized the posting of material on its official web site by any organization or group shall in no way be construed to establish any future right by such organization or group to post additional materials or links, or to limit the City's ability to restrict, limit, alter or remove any such material or link once posted. Any organization whose application for web site linkage has been denied by the City may file a letter of appeal with the Mayor within 30 days of receiving a written denial- from the Community Services Department. {3ZL507167. DOC;3/00006.900020/) City of Edmonds Government Channel 21 . Policy Government Channel 21 is a public service created for the limited purpose of providing Edmonds citizens with designated information regarding the operation and affairs of City government. The "Community Calendar" (character generator) is offered to provide selected information from public, educational and governmental sources. Channel 21 is available to local cable subscribers and is displayed throughout the day, seven days a week, twenty-four hours a day with both text (agendas and announcements) and video (meetings) information. Nothing in this policy or in Channel 21 itself shall be deemed to create or constitute a - public forum. Organizations or groups desiring to post information on Channel 21 must apply in writing [see attached form] to the City of Edmonds Community Services Department. The application must contain the following information: ■ The name, business address, and telephone number of the organization ■ The content of the organization's proposed message ■ The organization's mission or purpose ■ An explanation of the organization's specific relevance to the Edmonds community ■ The organization's designated contact person for purposes of communicating with the City of Edmonds • The organization's registered agent for purposes of receiving legal service of process The City of Edmonds Community Services Department will determine whether or. not to approve each organization's application and will notify the applicant of the decision within ten days of receiving an application. In rendering its decision, the Community Services Department shall consider the guidelines enumerated below in light of the stated purpose of Channel 21. Generally, the following types of information may be posted on Channel 21: ■ Information regarding governmental and public educational institutions located within the State of Washington ■ Information regarding local organizations -having a recognized relationship with the City of Edmonds or with which the City of Edmonds partners in order to provide services, including but not limited to the Edmonds Chamber of Commerce, Port of Edmonds, and Stevens Hospital ■ Information regarding local cultural, artistic, civic or non-profit recreational organizations having either a recognized relationship with the City of Edmonds or specific and direct relevance to City residents • Information regarding Edmonds community events, such as festivals, art displays and neighborhood fairs ■ City -initiated press releases Generally, the following types of information may not be posted on Channel 21: ■ Political information advocating a candidate or position on political issues, including but not limited to ballot propositions ■ For -profit business or commercial information ■ Individual personal information Religious proselytizing or spiritual instruction, to the extent consistent with Good News Club v. Milford Cent. Sch., 533 U.S'. 98 (2001) or other controlling case or statute {JZL507181.DOC;2/00006.900020/1 ■ Illegal, obscene or pornographic matter Press releases not initiated by the City of Edmonds ■ Meeting schedules for community organizations' Nothing herein shall be deemed to abridge or otherwise limit the City's unrestricted and sole discretion to restrict, limit, alter or remove any informational material posted on Channel 21, at any time and without notice, for any reason, including but not limited to programming availability. The fact that the City has previously authorized the posting of informational material on. Channel 21 by any organization or group shall in no way be construed to establish any future right by such organization or group to post additional materials, or to limit the City's ability to restrict, limit, alter or remove any such material once posted. Moreover, the City makes no guarantee that any informational material will be posted by or for any specific time, notwithstanding that the organization or agency requesting such posting may have informed the City of a preferred time and/or duration of posting. Any organization whose application for information posting on Channel 21 has been denied by the City may file a letter of appeal with the Mayor within 30 days of receiving a written denial from the Community Services Department. FINAL DETERMINATION BY CITY COUNCIL {JZL507181.DOC;2/00006.900020/} DISCUSSION OF POLICY REQUIRING ESTABLISHMENT OF NEW ZONES Requested by: Councilmember Plunkett r� • POLICY RE: WHAT CONSTITUTES AFFORDAB LE HOUSING, PRSERVATION OF TREES ETC. Requested by: Councilmember Plunkett 0 s 0 M E M O R A N D U M Date: January 22, 2007 To: Council President Pritchard Olson From: Councilmember Plunkett Subject: 12007 Retreat Agenda Items I would like to see the following on the 2007 Council Retreat Agenda: 1. I would like to discuss establishing a policy that requires any applicant who wishes to create a new zone in Edmonds to go through the formal comprehensive plan process. 2. In light of a recent applicant's "assertion" that they were creating affordable housing and protecting trees and other benefits, I would like the Council to discuss a policy that actually establishes what constitutes affordable housing, preservation of trees, etc. It is my opinion that the Council allowed an applicant to make the statement that held the applicant to no specific standards. Just because an applicant states it, doesn't make it the case. Therefore I would like to discuss specific standards. City of Edmonds COL7NCIL OFFICE VISION What does the Council want now? Requested by: Councilmember Moore C �� �7 PLANNING BOARD FUTURE ADB AGENDAS Requested by; Council President Pritchard Olson U 0 °�� Planning Board Extended Agenda March 2812007 C. 189` Meeting Item March 28th 2007 1. Code Re -Write Project update & topical discussion. 2. Parks & Recreation Department Quarterly Report April 11 th Planning Board retreat. 2007 "Green" Presentation from Cary Guenther April 25th 1. Code Re -Write Project update & topical discussion. 2007 2. Public Hearing on Sunset Avenue rezones (Administrative to OR zone for consistence with Comprehensive Plan] May 9th 1. Public Hearing on application by Rob Michel for rezone from 2007 RM-2.4 to RM-1.5 for 125 2nd Avenue North. 2. Code Re -Write Project update & topical discussion. May 23rd 1. Public Hearing on update to Shoreline Master Program. 2007 2 June 13th 1. Code Re -Write Project update & topical discussion. 2007 2. (Downtown BD 1 design standards, if referred by Council?) July 11 th 1. Code Re -Write Project update & topical discussion. 2007 2 001 July 25th 2007 1. Code Re -Write Project update & topical discussion 2. 002 Pending 1. Shoreline Master Program update 2007 2. Community Development Code Re -Write, including these items: ✓ Title 20 revisions (including quasi-judicial decisions). (Referred from Council). ✓ Update of non -conforming provisions of the zoning code (Chapter 17.40 ECDC) to comply with comprehensive plan policies on infill development and historic preservation. (Referred from Council) ✓ Definition of "setback" and clarification of what structures/buildings can be placed in setbacks. (Referred from Council) ✓ Variances in PRDs. (Referred from Council) ✓ Amend Nuisance Regulations. (Referred from Council) ✓ Home Occupation Regulations. (Referred from Council) 3. Neighborhood Center Plans, including: ✓ Five Corners ✓ Firdale ✓ Westgate 4. Highway 99 Implementation, including: ✓ Potential for "urban center" designation and design/development strategies 5. Quarterly report and code amendments dealing with wireless communication facilities. (Referred from Council) 6. Report on critical areas implementation. (Referred from Council) 0GJ ~� n_� Planning Board Extended Agenda March 28, 2007 C. 18`�� Meeting Item March 28th 2007 1. Code Re -Write Project update & topical discussion. 2. Parks & Recreation Department Quarterly Report April 11 th Planning Board retreat. 2007 "Green" Presentation from Cary Guenther April 25th 2007 1. 2. Code Re -Write Project update & topical discussion. Public Hearing on Sunset Avenue rezones (Administrative to OR zone for consistency with Comprehensive Plan) May 9th 1. Public Hearing on application by Rob Michel for rezone from 2007 RM-2.4 to RM-1.5 for 125 2nd Avenue North. 2. Code Re -Write Project update & topical discussion. May 23rd 1. Public Hearing on update to Shoreline Master Program. 2007 2 June 13th 1. Code Re -Write Project update & topical discussion. 2007 2. (Downtown. BD1- design standards, if referred by Council?) July 11 th 1. Code Re -Write Project update & topical discussion. 2007 2 001 July 25th 1. Code Re -Write Project update & topical discussion. 2007 2 002 Pending 1. Shoreline Master Program update 2007 2. Community Development Code Re -Write, including these items: ✓ Title 20 revisions (including quasi-judicial decisions). (Referred from Council). ✓ Update of non -conforming provisions of the zoning code (Chapter 17.40 ECDC) to comply with comprehensive plan policies on infill development and historic preservation. (Referred from Council) ✓ Definition of "setback" and clarification of what structures/buildings can be placed in setbacks. (Referred from Council) ✓ Variances in PRDs. (Referred from Council) ✓ Amend Nuisance Regulations. (Referred from Council) ✓ Home Occupation Regulations. (Referred from Council) 3. Neighborhood Center Plans, including: ✓ Five Corners ✓ Firdale ✓ Westgate 4. Highway 99 Implementation, including: ✓ Potential for "urban center" designation and design/development strategies 5. Quarterly report and code amendments dealing with wireless communication facilities. (Referred from Council) 6. Report on critical areas implementation. (Referred from Council) OGJ Discussion on Resolution in Support Senate Bill 5322 The Development of an independent four-year polytechnic university in the SIS County area. (Additional information to be distributed at Council Retreat) 4 n Senate Bill 5322 The development of an independent four-year polytechnic university in the SIS County area. This effort is supported by: City of Lake Stevens City of Snohomish City of Monroe City of Marysville The Greater Lake Stevens Chamber of Commerce The Snohomish Chamber of Commerce The Lake Stevens School District Board of Directors The Marysville School District Board of Directors The Marysville-Tulalip Chamber of Commerce The 381h Legislative District Democrats Association of Snohomish County Cities and Towns El C7 Message Page 1 of 2 Spellman, Jana From: Haakenson, Gary Sent: Tuesday, March 20, 2007 3:39 PM To: Spellman, Jana Subject: FW: Four year university -----Original Message ----- From: Hulten, Kevin [mailto:Hu[ten.Kevin@leg.wa.gov] Sent: Monday, March 19, 2007 12:19 PM To: ROBERT AMENN Cc: electpeggy@comcast.net; councilmemberliias@verizon.net; jmarine@ci.mulkilteo.wa.us; Haakenson, Gary; cminnick@ci.monroe.wa.us Subject: Four year university Robert, It was great talking with you today. We are excited about the Association of Snohomish Cities and Towns' enthusiasm for this issue. Let's work together to make this a reality. As you are probably aware, Senators Hobbs, Shin, Haugen and Berkey along with Snohomish County Executive Aaron Reardon are working on identifying land and beginning the process of developing a stand-alone four year university with a polytechnic emphasis in our area. Senator Hobbs is in the process of collecting civic and business support for this process. Once he is able to present the case that cities and organizations are on the same page in welcoming a university, the Senators will take their case to the Governor. Legislation and budget requests are already in motion: SB 5322 calls for a study and the identification and optioning of land, while the Senators have also submitted a $4 million capital budget request for preliminary funding. As we discussed, Senator Hobbs has also introduced legislation regarding the funding of a university through a sales tax increase. We have received significant support in this effort so far. The following cities and organizations have voiced their support by passing the attached resolution: • The City of Snohomish • The City of Lake Stevens • The City of Marysville • The City of Monroe • The City of Mill Creek* • The City of Granite Falls* • The Greater Lake Stevens Chamber of Commerce • The Snohomish Chamber of Commerce • The Marysville-Tulalip Chamber of Commerce • The Lake Stevens School District Board of Directors • The Marysville School District Board of Directors* • The 38th Legislative District Democrats • The Association of Washington Cities and Towns * denotes that resolution has been placed on consent agenda for upcoming meeting 001 3/22/2007 1 2 3 4 5 6 7 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ?9 5322 AMS .... 52876.1 SB 5322 - S AMD By Senator Strike everything after the enacting clause and insert the following: "NEW SECTION. Sec. 1. The legislature finds that the needs of over ten thousand students are forecast to be unmet by 2025 without state action to improve access to higher education in the Snohomish - Island -Skagit county region., The legislature further finds that the Snohomish -Island -Skagit county region needs a four-year comprehensive institution of higher education to serve the demands of Washington businesses. The legislature further finds that there is no idle expansion capacity in public institutions of higher education in the region. The legislature intends to expedite the development of a new four-year comprehensive institution of higher education with a polytechnical focus in the Snohomish -Island -Skagit county region. The legislature further intends that this new institution shall focus on providing polytechnical baccalaureate degrees in applied science, engineering, and applied computer science, that prepare graduates to compete in the global marketplace. NEW SECTION. Sec. 2. (1) The office of financial management shall assess options and make a recommendation on alternative sites and secure purchase options for an institution of higher education in the Snohomish -Island -Skagit county region. The office of financial management shall evaluate sites based on, but not limited to, the following criteria: (a) Meeting the unmet baccalaureate needs in the region including high -demand program needs; (b) Accessibility from existing and planned transportation infrastructure; (c) Availability of land in Everett, Marysville, and the north Snohomish county area; 003 Code Rev/SCG:mos Official Print - 1 5-2876.1/07, 1 (d) Whether the parcel size allows flexibility for future growth 2 and expansion; (e) The costs of land acquisition; 4 (f) Whether the land is impacted by environmental hazards; and 5 (g) Meeting the objectives of the master business plan. 6 (2) The office of financial management shall develop specific 7 operational and management plans needed to establish the institution, 8 including but not limited to: 9 (a) A master business plan for design and implementation, including 10 public -private partnerships; 11 (b) A governance model; 12 (c) A plan for comprehensive, four-year programs with a 13 polytechnical focus to be offered that addresses regional demographic 14 pressures and workforce needs; 15 (d) Identification of providers able to offer accredited upper 16 division classes and programs on a temporary basis; 17 (e) A plan to initiate upper division classes and programs by the 18 fall of 2008 at a temporary location; and 19 (f) A plan to incorporate the upper division classes and programs oo initiated in 2008 into the new independent four-year comprehensive 1 institution of higher education by 2013. 22 (3) All planning and analysis in this section shall be done in 23 coordination with a local advisory committee. The committee shall 24 include: (a) The Snohomish county executive; (b) three members of the 25 house of representatives, including two from the majority party and one 26 from the minority party, appointed by the speaker of the house of 27 representatives; (c) three members of the senate, including two from 28 the majority party and one from the minority party, appointed by the 29 president of the senate; and (d) six education or business leaders, two 30 each from Snohomish, Island, and Skagit counties. 31 (4) The office of financial management shall report its 32 recommendations to the governor and the appropriate committees of the 33 senate and house of representatives by December 1, 2007. 34 (5) The office of financial management shall contract with an 35 outside neutral consultant to carry out the provisions of this 36 section." Code Rev/SCG:mos Official Print — 2 5-2876.1/07 SB 5322 - S AMD By Senator 1 On page 1, line 3 of the title, after "region;" strike the 2 remainder of the title and insert "and creating new sections." czzzv*19� 005 Code Rev/SCG:mos Official Print - 3 S-2876.1/07 Independent University for Snohomish -Island -Skagit Counties The number one higher education priority in Washington state is increasing local access to college -level education. Numerous studies have demonstrated that there is a significant unmet need for higher education in the North Snohomish, Island, and Skagit counties area. These studies agree that a four year, stand-alone comprehensive university with a polytechnic focus best meets this unmet need in the most efficient manner. Further, we are suffering a huge deficit of technological degree -holding applicants in the local job market: • The Governor's education budget shows a projected shortfall of 44 percent between business demand for Computer Science degree holders and degrees produced. • The same study shows a projected shortfall of 32 percent between Engineering degrees produced and business demand This problem has little chance of being addressed by current higher-ed facilities — a significant number of qualified math, science and engineering students are rejected from programs due to lack of slots. Background: We propose a four-year independent university. Others want a 2+2 community college plus upper division model. • A four year university would have a similar structure to the regional universities but with a polytechnic focus to meet the demands of local employers such as Boeing and Microsoft, whereas; • A 2+2 model would offer only upper division classes, using community colleges to offer lower division classes As repeated studies have shown, the four year independent is the best choice for a number of reasons: • The four year university best meets the needs of local students and employers (per HECB study) • A four year independent university will cost virtually the same as the 2+2 model. • The four year university model was identified as the preferred model based on numerous, criteria after eight types of institutional models were studied by the HECB. • An independent university could begin offering classes by 2008 while construction began, and both options take about the same length of time to reach desired capacity. • Critics say that 2+2 institutions evolve into independent universities, but the fact is that this rarely occurs. Starting with a four year university model would be cheaper and more efficient in the long run. • The four year university is the only model with strong community support, and has been endorsed by numerous cities, chambers of commerce and school boards within Snohomish County. 006 Location Location is vital in ensuring the target population is served — numerous studies show that proximity to a university is one of the largest determining factors in the number of students with a degree. • North Snohomish County has been identified by the HECB study as the area where the new institutions should be sited. • Previous efforts to establish a university in Everett failed: NSIS at Everett Station, Henry Cogswell College. • The nearest 2+2 option (UW-Bothell) is underperforming because of location problems —the campus opened 15 years ago and currently serves less than 2,000 students, including an undergraduate population of less than 150. • Significant portions of the Snohomish/Island/Skagit region would be underserved if a location in Everett were to be the site. 007 Fiction vs. Fact Many myths are being perpetuated about the proposed models. FICTION: We must not build a new university until we currently fully fund our existing universities. FACT: We are currently increasing our funding in higher education to fund unmet capacity. However, even if we completely build out existing colleges, there is still significant unmet need in the North Snohomish, Island, and Skagit counties. FICTION: The brand name of the University of Washington will be useful in recruiting faculty and students. FACT: The UW-Bothell campus has been open 15 years and has an enrollment of less than 2,000 students, proving that name recognition holds little impact. FICTION: A UW extension would have more pull in Olympia. FACT: An independent four year university has more community support and will be the sole priority of its board of trustees, where as a branch campus is beholden to the core university's needs and priorities. FICTION: A 2+2 model will cost significantly less than a four year university. FACT: The HEC Board study projects a cost differential of less than one percent. FICTION: Proponents of a four year independent university are aiming too high, and should settle for a branch campus. FACT: While we hosts some of the world's best and brightest businesses, the fact is that we are outsourcing a majority of the best paying jobs to young people from outside our country. This is not due to a lack of will on our students' part, but a lack of opportunity. The effects of this "quiet crisis" will be felt on a local level within 15 years if we don't take action now. The creators of Dell, Intel, Google, HP, Microsoft and Cisco were all U.S. born and educated. If we don't address our lack of polytechnic educational facilities, the next generation of innovators will likely be in India or China, and companies like Boeing and Microsoft will have little incentive to remain local. Faced with a serious and legitimate educational crisis on a national and local level, not only is "aiming high" the responsible thing to do — it's the only thing to do. 1 Four-year Polytechnic University in Snohomish -Island -Skagit Counties In November of 2006, a gubernatorally-appointed local consultant team found that 10,767 full-time equivalent students in the Snohomish -Island -Skagit area would have unmet needs by 2025 • Additionally found that existing institutions of higher education that serve the area have no expansions capacity to meet the need. ■ The team found that investment in polytechnic capabilities was warranted due student needs and business demand. • The team recommended a four-year polytechnic university in the Everett - Marysville area, coupled with increased investment in UW-Bothell and area community colleges. In December of 2006, the HECB concluded that is was appropriate to consider and begin initial planning for the creation of a four year campus in the area. SB 5322 Orders OFM to make a recommendation on sites and procure purchase options for an institution of higher education in the SIS County region. • Sites will be identified using a set of criteria that will consider unmet baccalaureate need in the area, accessibility to infrastructure, land availability parcel size, cost environmental impacts and master business planning • The OFM will develop operational and management plans to establish an institution with comprehensive four-year programs with a polytechnic focus that addresses local and regional demographics and workforce needs. • The OFM must contract with a neutral outside council on this effort. Recommendations are due to the Senate, House and Governor by Dec. 1, 2007. Proposed amendment to SB 5322 Based on the timeframe described, occupancy of a new four-year university is expected to commence in 2013. However, the SIS region has the need to immediately develop programming and curriculum and to begin offering upper division classes prior to 2013. A formal bid process to identify upper -division programming shall be initiated on May 1, 2007. All interested applicants shall submit a notification of intent to be reviewed by the HECB with consultation from the Local Advisory Committee that shall resemble the structure and appointment authority in ESSB 6094. Upon approval by the HECB and LAC, the new programming shall begin instruction in the fall of 2008. With regard to 5322, the outside neutral consultants through the OFM shall identify the means of incorporating the upper -division classes into the new SIS four-year university by 2013. 009 Senate Bill 5322 The development of an independent four-year polytechnic university in the SIS County area. This effort is supported by: City of Lake Stevens City of Snohomish City of Monroe City of Marysville The Greater Lake Stevens Chamber of Commerce The Snohomish Chamber of Commerce The Lake Stevens School District Board of Directors The Marysville School District Board of Directors The Marysville-Tulalip Chamber of Commerce The 381h Legislative District Democrats Association of Snohomish County Cities and Towns 010 0 Resolution 2007-01 A RESOLUTION concerning the Snohomish Chamber of Commerce's commitment to the development and construction of an independent stand-alone four- year polytechnic university in Snohomish County. WHEREAS, the Chamber has found that even with the expansion of existing higher education institutions, the needs of over fifteen thousand area students are forecast to be unmet by 2025 without action to improve access to higher education in the greater Snohomish County region; and WHEREAS, the Governor's educational budget shows a projected 44 percent shortfall between Computer Science degrees produced in state and state business demand ; and WHEREAS, the Governor's educational budget shows a projected 32 percent shortfall between Engineering and Applied Science degrees produced in state and state business demand ; and WHEREAS, the Snohomish Chamber of Commerce recognizes that the State of Washington has a vibrant economy paced by world class technology -based businesses such as Boeing, Microsoft, and Nintendo; the City further recognizes that the State lacks an institution dedicated to the specific educational needs of the math and science workforce; WHEREAS, the Snohomish Chamber of Commerce finds that many qualified high school students are not gaining slots in the state's current four year institutions; and WHEREAS, local businesses have stated that there is a lack of qualified in -state college educated applicants for math, science and technology based employment positions; and WHEREAS, the Snohomish Chamber of Commerce cannot afford to take the future of our students for granted if our citizens are to have access to jobs and prosperity and if we are .to have a stable, diverse, robust economy; and WHEREAS, the Governor's Local Advisory Committee study found the cost difference between a new independent four-year university as opposed to the expansion of community colleges/development of a branch campus concept to be negligible; and WHEREAS, the Snohomish Chamber of Commerce finds that a four-year polytechnic university will add capacity to the current system, serve a geographic region that is currently underserved, emphasize the jobs that are in demand and place a university among the very employers who demand Washington's best and brightest; and WHEREAS, the Snohomish Chamber of Commerce recognizes that regardless of site selection, the development of a four-year, independent stand- alone university in Snohomish County will benefit the citizens, 011 students, businesses and economy within the City of Snohomish and surrounding area; NOW, THEREFORE, BE IT RESOLVED BY THE Snohomish Chamber of Commerce, THAT: 1. The Snohomish Chamber of Commerce supports a regional commitment to the development of a world -class, stand-alone four-year polytechnic university to be located in Snohomish County 2. The Snohomish Chamber of Commerce encourages the Washington State Legislature to act on the aforementioned needs by securing lands and developing a master plan and governance model for the stated university. 2. The Snohomish Chamber of Commerce will work with elected officials and neighboring cities to further the cause of locating said university within Snohomish County. Ada ted by the Snohomish Chamber of Commerce the (�? l day of 2007, aa�=�Puu President, Snohomish Chamber of Commerce 012 Washington State Legislature February 22, 2007 The Honorable Karen Fraser Vice Chair, Capital Budget PO Box 40422 Olympia, WA 98504 Dear Senator Fraser, We are writing to request a budget proviso to secure the purchase of land options, develop a master plan, and a governance model for a four year stand alone comprehensive university with a polytechnic focus in North Snohomish, Island and Skagit Counties. The Governor has included $2 million in her budget for the planning; we are asking for an additional $2 million to option land for the site. .In 2005, at the direction of the Legislature, the HECB commenced a study to assess the higher education needs of the region, evaluate organizational models for meeting the needs, assess sites for an institution, and identify a process for completing a master plan for higher education expansion. The HECB hired consultants and received extensive input from a Local Advisory Committee (LAC), a group comprised of legislators and local leaders. After evaluating eight organizational models, the study determined that a four year stand alone comprehensive university with a polytechnic focus would best meet the local demand for baccalaureate degrees. We are moving forward with the HECB consultants' and LAC's recommendations by requesting an appropriation of $4 million to continue on the next steps of the plan. A stand alone four year university would be the best option for the following reasons: • The independent model best meets the needs of qualified students with high GPAs, but who are unable to attend college due to space availability The North Snohomish, Island and Skagit (SIS) Counties region has significantly higher unmet needs than that of other regions • The college would have a unique mission to address the needs of our high tech employers as an institution with a polytechnic focus • The price of a four year stand alone comprehensive university with a polytechnic focus is comparable to that of a 2+2 model ($442,915,265 for an comprehensive university for initial capital and operating costs vs. $435,758,892 for a 2+2 university) 013 Legislative Building • Olympia, WA 98504-0482 • Most importantly, this is the right step- for our community. We must take action in meeting these unmet needs; we cannot continue to study the issue and hope that the issue resolves itself. We hope you will consider these points as you prepare your budget. We have strong community support for our plan and we hope we can count you among our supporters. Please find enclosed additional information regarding our desires for the study and land options. Please don't hesitate to contact any of us if you have questions or concerns. Sincerely, k4ASenatorau Mhin Senato t laugen 21st District 10`h District enator Jean Berkey 38'h District Enc. 1 Cc: Senator Craig Pridemore Vice Chair, Ways and Means Senator Steve Hobbs 44`h District 014 NEW SECTION. FOR THE OFFICE OF FINANCIAL MANAGEMENT Snohomish, Island, and Skagit County Regional Higher Education The appropriation in this section is subject to the -following conditions and limitations: (1) The office of financial management is directed to assess.options and make a recommendation on alternative sites, and secure purchase options for an institution of higher education in the Snohomish -Island -Skagit county region. The office of financial management shall develop the operational and management plans needed to establish the institution, including but not limited to: A master business plan for design and implementation, including public -private partnerships; governance model; and a plan for comprehensive, four-year programs with a polytechnic. focus,to be offered that addresses regional demographic pressures and workforce needs. Planning and analysis shall be done in coordination with the local community. The office of financial management shall evaluate sites based on, but not limited to, the following criteria: Meeting the unmet baccalaureate needs in the region including high demand program needs; accessibility from existing and planned transportation infrastructure; availability of land in Everett, Marysville, and the north Snohomish County area; allowing flexibility for future growth and expansion; the costs of land acquisition; impact of environmental hazards; and meeting the objectives of the master business plan. (2) The office of financial management shall report its findings to the governor and the appropriate committees of the senate and house of representatives by December 1, 2007. (3) The office of financial management shall contract with an outside neutral consultant to carry out the provisions of this section. Appropriation: Office of Financial Management ............... $2,000,000 Capital request for land options $2;000,000 TOTAL ....................... $4,000,000 November 6 meeting what departments needed to make a presentation or be available for questions on November 14. Council President Dawson pointed out the first meeting in November would be on Monday, November 6 due to the election on Tuesday, November 7. She advised the budget workshop on November 14 would begin at 7:00 p.m. following Council committee meetings at 6:00 p.m. 9. MAYOR'S COMMENTS olumbarium I Mayor Haakenson advised of the columbarium dedication at the Edmonds Cemetery on Saturday, dedication October 27 at 11:00 a.m. He reported on the soft opening of the Edmonds Center for the Arts on October 23 with a performance by the Cascade Symphony, an awesome performance in an incredible building. Edmonds Center for the He commended the Public Facilities District for what they were able to deliver. He also recognized Arts Stephen Clifton and Cindi Cruz who assisted with bringing the project in on time and under budget. He encouraged everyone to stop by and see the facility. 9A. REPORT ON CITY COUNCIL COMMITTEE MEETINGS. Community/ Development Communi Services/Deveigpmertt Services Committee Services Councilmember Moore reported the Committee discussed conversion of rental apartments to Committee condominiums. A number of Esperance residents who were present to discuss the conversion of an apartment building were referred to Snohomish County Councilmember Gary Nelson as Esperance is not in Edmonds. The Committee considered State law governing condominium conversions and although there is not a great deal the City can do, the Committee recommended Council discuss requiring tenants be provided a small compensation for moving expenses. 10. INDIVIDUAL COUNCIL REPORTS ON OUTSIDE COMMITTEE/BOARD MEETINGS. SnoCom Council President Dawson reported on SnoCom, explaining one of the issues with having two communications centers, SnoCom and SnoPak, particularly for border agencies such as Fire District 1 and Mill Creek, was transferring calls between the two communication centers. Fire District 1 was dispatched by SnoCom; however, the Sheriff's office that serves as the police agency in that area is dispatched by SnoPak. She explained there had been discussions in the past regarding the best way to approach that issue until technology upgrades in 2010 that would address connectivity. She explained SnoCom had been promoting interconnectivity between the systems and although there was thought to have been agreement between the two agencies, whenever funding for interconnectivity arose, something prevented it from occurring. A recent meeting with the representatives from the agencies revealed that although the Chair and Vice Chair of SnoPak believed there was support for interconnectivity, the members of the SnoPak Board did not support that concept. It was agreed to form a group with members of SnoCom and SnoPak to develop a solution. She relayed SnoCom had to withdraw a grant application due to this indecision. Snohomish Co. Councilmember Moore reported the Snohomish County Economic Development Council discussed the 4- Economic Development year university for Snohomish, Island and Skagit Counties. She noted the City Council passed a Council resolution tonight in support of a 4-year university which she would present to the Higher Education Higher Coordination (HEC) Board later this week. The HEC Board will develop a recommendation to the Education legislature during the 2007 legislative session. She reported she was asked by Snohomish County Cities Coordination and Towns to work on an Economic Development Committee. The Snohomish County Economic Board Development Council also discussed Paine Field. There was interest expressed regarding a more aggressive study of Paine Field expansion but there was no consensus reached with regard to that item. She noted Edmonds was not a member of the Snohomish County Economic Development Council, she had attended the meeting at Council President Dawson's request. Edmonds City Council Approved Minutes October 24, 2006 Page 9 411(; Re'5orution moo. 1132 vberea!g, Snohomish County is the fastest growing county in Washington State; and Vberea%, Snohomish Cournty is the second least -served county for "baccalaureate and graduate degrees in Washington; and V%erea, Workforce demands are in the applied math, science and engineering fields, trending upward in those areas, with hundreds of baohelors degree level jobs being recruited from out of state each year, and Voren, Washington State must stay competitive in a global arena in the areas of aerospace, bio-technology, alternative energy, nano -technology, transportation and other emerging fields; and 3fjerm, Snohomish County Community Colleges enroll 40% of their students for transfer to upper level degrees each year, and Vbereac 40% of all bachelor's degree holders, 35% of all math, science, engineering and technology majors and 70% of all first -generation students begin their journey toward a 4-year degree at a community college; and Vbereafi, Edmonds Community College and Central Washington University serve our community on one campus, allowing students to complete a bachelor's degree seamlessly and at low cost compared to a full stand-alone 4-year university; and Vbereafi, Limited state resources create a demand for maximizing return on education investments already made through facilities and Vberea$, Expanded opportunity for students in all socio-economic levels is essential to the overall success of our state; ,Q.oW, MTjerefore, JOe it 3&Mlbeb that the Edmonds City Council supports the creation of a strong upper and graduate level university in North Snohomish County. Such a university should function as a regional/state resource focused on current applied technologies and manufacturing disciplines with a strong applied research component. We believe our educational investments must be efficient, effective and as immediately accessible as possible to as many students as are prepared for upper level and graduate work. While we need to build programs in our K-12 systems that attract and educate future higher education students, it is also critical to support and grow programs in the applied sciences in community colleges to prepare students for a world -class upper division and graduate -level university that will serve the needs of the county, region, and state. We urge the Higher Education Coordinating Board to create this upper division and graduate level university in Snohomish County, focused on applied technologies and advanced manufacturing disciplines. We urge the Board to consider ways in which this university may begin accepting qualified students who are now seeking upper division work as soon as possible, as the workforce demand is great and growing and the supply of students is already backlogged. We also urge the Board to fully fund our existing colleges and universities already serving our region's students. ( '� ,Passed -App(oved, In jAdopted tfiu 241 day of Octo6e Gary Peg4P66ard Olson, Councilmember A st: City Clerk 01% QCitp of fbmonbo 3ncorporateb 1890 AM-884 Historical Report on Term Limits Edmonds City Council Meeting Date: 03/20/2007 Submitted By: 3ana Spellman, City Council Submitted For: Council President Pritchard Olson Department: City Council Review Committee: Action: Agenda Memo Subject Title Historical Report on Term Limits Recommendation from Mayor and Staff N/A Time: 15 Minutes Type: Information 3. Previous Council Action At the August 18, 1998 Edmonds City Council Meeting the Council reviewed the term limit ordinance. At that meeting, the Council voted 6 to 1 to adopt Ordinance No. 3223 removing the limitation on the number of years a Mayor serves. Narrative At the conclusion of the March 6, 2007 Edmonds City Council Meeting, Councilmember Mauri Moore, during the Council Comments portion of the meeting, broached the subject of term limits for the Edmonds City Mayor. City Attorney Scott Snyder will make a presentation on the history of the term limits ordinance and the relevant attorney general opinion and court cases. Attached are copies of a Memorandum from Mr. Snyder dated March 15, 2007 along with Exhibits A through E. Revenue & Expenditures Fiscal Impact Attachments Link: 8-18-98 Minutes re: Term Limits Link: City Attorney_Memo and Exhibits A & B Link: City Attorney Memo Exhibits C. & D Link: City Attorney Memo Exhibit.D continued Link: City Attorney Memo Exhibit E Link: City Attorney Memo Exhibit E continued Form Routing/Status Route Seq Inbox Approved By Date Status 1 City Clerk Sandy Chase 03/15/2007 08:33 AM APRV 2 Mayor Gary Haakenson 03/15/2007 09:59 AM APRV OCI Councilmember Earling recalled the agreement discusses an interim site for the commuter train with the clear understanding it is the City's long-term goal to move the multimodal site to the Pt. Edward's site. Dave Beale, Project Manager, Sound Transit, agreed with Councilmember Earling and said the EIS that is underway has two alternatives for the station, 1) an interim site at the existing Amtrak station (with the intent to expend as little capital as possible) and 2) a permanent Edmonds station as part of the multimodal center. City Attorney Scott Snyder commented that the purpose of this agreement is to expedite the review process and said in response to concerns his office had, Section 12D states nothing in the agreement obligates the City as a permitting agency to approve the project or in any way binds future Councils to the decision -making process. Further, a provision in Section 8C indicates that land use planning and control is the responsibility of the City. He pointed out the Council must balance their desire to plan, move forward, seek federal funds, and work with the RTA and other agencies, clearly indicating the Council's policy preferences without contracting away ultimate decision -making authority that state law requires the Council make as a quasi-judicial body. Councilmember Earling recalled a citizen commented on parking for the commuter rail station and said the initial ridership projections concluded there was more than adequate parking in the area of the Amtrak for the start up operation. Mr. Beale agreed and said Sound Transit has done a variety of ridership forecasts including one for the Edmonds station. Forecasts through 2010 indicate a low of 50 vehicles and a high of 120 vehicles. For environmental purposes, 120 spaces were used. He said most of the parking requirements could be satisfied by existing parking within walking distance of the station. In addition, one significant property owner within the vicinity of the station has approached Sound Transit with a proposal for a parking arrangement. Councilmember Earling said it is the intent of Sound Transit to form citizen groups within communities to help with planning, site selection, site design, etc. He explained similar memorandums of agreement have been signed in the south corridor which is scheduled to be operational a year sooner than the north corridor. He supported the work Sound Transit has done to customize the desires of each community and was certain issues would be addressed in the process. COUNCILMEMBER EARLING MOVED, SECONDED BY COUNCILMEMBER VAN HOLLEBEKE, TO AUTHORIZE THE MAYOR TO SIGN THE MEMORANDUM OF AGREEMENT WITH SOUND TRANSIT. MOTION CARRIED. erm Limit 10. REVIEW OF THE'PERM., LII�VIIT ORDIIVANCF ordinance City Attorney Scott Snyder explained eight years ago he advised the Council and then Mayor Larry Naughten that the City's provision prohibiting a mayor from serving more than two consecutive terms violated the state election law requirements that set the requirements for public office and was therefore illegal. In recent attempts to initiate term limits, Judge William Dwyer stated that since the powers to determine qualifications for office come from the Federal Constitution, state voters cannot place a limitation on those federal qualifications. Mr. Snyder pointed out Judge Dwyer's ruling was the same as the opinion he gave previously -- the City of Edmonds cannot set a limitation where qualifications for office are set by the State Legislature. Mr. Snyder said this was an appropriate time to review this issue I as it is not an election year and an amendment would not effect the political position of any person. Edmonds City Council Approved Minutes /,¢ r� August 18, 1998 0 2 Page 11 For Councilmember Plunkett, Mr. Snyder said the term limit is not a constitutional violation but is invalid as it violates state law for public office. Judge Dwyer indicated a lower legislative body cannot The Minutes impose a limitation where the higher law sets a broader ability. The City Council could pass a resolution :were stating its belief that it is in the public's best interest to limit Mayors' terms to two years but the City ;correcte cannot limit the Mayor to two terms by ordinance. '°n .9/ 1/98. Drd;Iff 223The vote eng COUNCIL PRESIDENT HAAKENSON MOVED, SECONDED BY COUNCMMEMBER ott this Limit on NORDQUIST, TO ADOPT ORDINANCE NO. 3223 REMOVING THE LIMITATION ON THE motion Perms vas 6 in NUMBER OF YEARS A MAYOR SERVES. MOTION CARRIED, COUNCILMEMBER MILLER Favor and: OPPOSED. **See Note in Margin. :1 no .vote. :Council- 11. DEVELOPMENTSERVICES DIRECTOR P ITION 6ember Plunkett Develop- Mayor Fahey said initially this information was brought to the Human Resources Committee meeting in ;voted no. c :............... meat Jul The Jul 28 Council packet contained the job descriptions under consideration and at that meeting, iervices y' y p .)g, Director the Council provided input and referred the matter to the Human Resources Committee for consideration and recommendation. Councilmember Miller (Human Resources Committee Chair) said the input of the Council was considered by the Human Resources Committee and it was the consensus of the committee to move forward with the creation of the Development Services Director position and extend the Community Services Director position through 1999 to allow the committee to review it further. He said the Council packet contained the Development Services Director's job description as well as the revised job description for the Community Services Director position. Mayor Fahey responded to citizen comments in opposition to creating this position and that too many supervisory positions are being created in the City. She stressed the Council authorized the Human Resources Study to determine the appropriate organizational structure for the City, reflecting that the City of Edmonds has grown significantly over the past few years. The Human Resources Study was conducted by a group of consultants, one whom is extremely knowledgeable in the organization structure of cities (Phil Kushlan, originally the City Manager of Bellevue). She said the perception that she wants to expand positions in the City inappropriately is incorrect; in reality, she is trying to facilitate the implementation of the consultants' recommendations that the Council accepted as the appropriate direction for the City. She felt the creation of the Development Services Director position was justified, appreciated appreciated the work the Human Resources Committee has done, and supported the organization structure recommended by the consultants. In response to an audience member's question regarding funding for the Development Services Director position, Council President Haakenson said the agenda memo indicated the funding source for 1998 will be from unanticipated revenues from permit fees but did not address the funding source for 1999. He assumed it would be part of the 1999 budget. Mayor Fahey agreed, stating a portion of the salary will come from increases in permit fees from projects under consideration as well as funds from the General Fund. She recalled during discussions of the Architectural Design Board, it was noted that permitting and planning -processes in the City are very complex based on numerous new rules and regulations associated with state and federal requirements. This was one of the primary reasons Mr. Kushlan felt the Department of Development Services needed to be created to allow those processes to be done in a more expeditious manner and have one person oversee all components. Edmonds City Council Approved Minutes August 18, 1998 CC3 Page12 DEBT U�PHY ALLACE ATTORN L•YS AT LAW MEMORANDUM DATE: March 15, 2007 TO: Edmonds City Council Mayor Gary Haakenson City of Edmonds FROM: W. Scott Snyder, Office of the City Attorney RE: Legal History - Term Limits A citizen and Councilmember Moore have raised questions regarding repeal of term limits by the City Council in 1997. The purpose of this memo is to provide an outline of the events and court cases which lead to my recommendation that the City Council repeal the ordinance and the Council's action to do so. The issue is not the wisdom of term limits but the method by which they may be imposed. C9110 C4kky/1��d1 While there is no published opinion, the prior Edmonds term limits ordinance was invalidated by the Snohomish County Superior Court. Subsequent appellate decisions have affirmed the Court's rationale. An Attorney General's opinion opines that term limits may be imposed by ordinance. As this memo will discuss, however, the City's prior term limit ordinance was later held invalid by Judge James Allendoerfer of the Snohomish County Superior Court. The issues became moot when the plaintiff, then Mayor Naughten, lost during the election process. Subsequent decisions of Judge Dwyer at the Western District Court of Washington, the State Supreme Court and the US. Supreme Court have all affirmed the basic rationale of Judge Allendoerfer's decision. The Attorney General's opinion pre -dates these decisions, but has not updated since 1991. Because the other decisions dealt with the State and federal constitution, while Judge Allendoerfer's decision dealt with the City's authority under RCW Title 35A, they do not constitute binding legal precedent. They do, however, clearly affirm the rationale behind Judge Allendoerfer's decision. A Member of the International lawyers Nework with independent member law firms worldwide 1601 Fifth Avenue, Suite 2100 • Seattle, WA 98101-1686 "• 206.447.7000 • Fax: 206.447.0215 • Web: www.omwlow.com (WSS654900.D0C;1/00006.900000/) CC 4 Edmonds City Council Mayor Gary Haakenson March 15, 2007 Page 2 PROCEDURAL HISTORY In 1991, two -term Mayor Larry Naughten, announced his candidacy for Mayor of the City. At that time, the Edmonds City Code 2.01.030 prohibited a mayor from serving a third term. The City engaged outside counsel, and brought an action to declare the City's ordinance valid and to bar Snohomish County from placing Mayor Naughten's name on the ballot. ATTORNEY GENERAL OPINION In an effort to help resolve the dispute, then State Senator Gary Nelson requested an Attorney General's opinion. This is the Attorney General's opinion referred to by Councilmember Moore. On June 24, 1991, the Attorney General issued Opinion No. 22 which opined in relevant part that charter cities and optional code municipal cities organized under RCW Title 35A have the authority either by adoption of a home rule charter or by ordinance, respectively, to impose term limitations. This opinion is based upon the broad authority vested in optional code cities by Title 35A. As the Attorney General noted, absent a specific statutory provision limiting the City's authority or conflicting with an ordinance, a City Council may exercise any of "the powers which any city of any class may have and shall be governed in matters of State concern by statutes applicable to such cities in connection with such powers to the extent to which such laws are appropriate and are not in conflict with the provisions generally applicable to code cities.t As the Attorney General noted: The critical point to be dawn from these statutes is that by electing to come under the optional municipal code, a city ceases to be governed by the traditional rules of delegated powers... instead a city so opting thereby becomes possessed of all powers which either have been specifically granted by the legislature to any class of cities [citations omitted] or which could be granted by the legislature [citation omitted] subject only to such restrictions or limitations as are contained in the statutes themselves or within the State Constitution "which is but another way of saying that the optional municipal code entitles cities operating or under the equivalent of the home rule powers otherwise available only to first class charter cities." AGO 1972, No. 24, page 7. 1 AGO 22, p.7. A copy of the Opinion is attached as Exhibit A. 065 t WSSG54900.DOC;1/0000G.900000f ) Edmonds City Council Mayor Gary Haakenson March 15, 2007 Page 3 Edmonds Y. Naughten On August 13, 1991, Judge James Allendoerfer announced his oral decision striking down the city ordinance. A copy of the transcript of his oral decision is attached as Exhibit B. Judge Allendoerfer concurred with the Attorney General's position that term limits are constitutional under the equal protection clause of the US Constitution and advanced legitimate State interests. Judge Allendoerfer noted that term limits are arguably justifiable under a wide variety of theories.Z Judge Allendoerfer noted that the Washington constitution is silent on the subject of the qualifications for local elected officials. For a City, like Edmonds, organized under RCW Title 35A, there are only two limitations with respect to a candidate's qualifications. RCW 42.04.020 requires that a candidate for municipal office be a US citizen and an elector of the jurisdiction in which he seeks office. RCW 35A.12.030 requires that a candidate be a registered voter in the City and a resident of the City for at least one year. As Judge AIlendoerfer notes, this is the "sum total" of the restrictions which the legislature has placed on municipal elected officials. Judge Allendoerfer concurs with the Attorney General that the adoption of Title 35A which he refers to as the optional municipal code or "OMC," provides broad powers to a city. Non charter cities must rely upon statutory provisions enacted by the State legislature as constituting their organic act. That is, that the State legislature has written charters for those cities without the necessity of voter participation or City Council participation. Charter cities, on the other hand, must write their own organic act subject to approval by the voters of the City. Under either scenario, however, Judge Allendoerfer notes that the home rule powers of such cities are `extremely broad' and may be "further expanded or supplemented by local legislation." At this point, having raised the issue of "organic" law, or basic structural powers, Judge Allendoerfer examines an issue not addressed in the AG opinion, specifically, the limitations on those powers imposed by the 40th Amendment of the State Constitution (Article X1, §10).. He noted three limitations established by case law: 2 '"Term limitations preserve fresh and responsive government. Term limitations guard against political entrenchment. Term limitations inject new and innovative leadership into the political system. They encourage incumbents to devote their full energies to public office rather than campaign during their final term of office. They expand the spectrum of political candidates and they tend to avoid political monopolies." Page 3 of Oral Decision. (WSS654900.DOC;1/00006.9000001) O C G Edmonds City Council Mayor Gary Haakenson March 15, 2007 Page 4 1. An optional municipal code city must "abide by the State Constitution and cannot violate it in any sense." 2. "... if general laws are enacted by the State which either deny certain powers to cities or preempts certain areas, said laws may not be violated, supplemented or contradicted by the cities themselves." 3. "The third restriction on OMC cities is the requirement that there must be an express or implied delegation of authority from the State legislature to the cities on certain special issues of paramount State concern, or said issues are declared out of bounds for local ordinances .,,3 Judge Allendoerfer finds that term limits are not violative of the State constitution nor, as the Attorney General noted, prohibited or preempted by State Statute. Judge Allendoerfer struck down the term limits ordinance based on violation of the third factor. He found that the topic of term limitations is "... a area of paramount state concern, or joint statelcity concern, thereby placing it out of bounds for city councils.4 As Judge Allendoerfer states: I find that term limitations on political candidates directly relate to the integrity of the electoral process and are, therefore, fundamental to the democratic system of government. The right to run for public office is a basic right of citizenship. Such matters are of organic act significance. The Buckingham case also leads to my next finding: that matters of organic act significance may be enacted, supplemented or amended solely by the level of government that has the underlying organic act authority. In the context of our present case, that would mean that the level of government which establishes the office of Mayor reserves the exclusive authority to set the qualifications for mayoral candidates. In charter cities, that power is vested by the 40th amendment to our constitution, and/or by the OMC, in the electorate of the city; that is, the authors of the charter. In non -charter cities, that power is vested by the constitution and the state legislature, which is the author of the organic act for non -charter cities. 3 Number i appears at page 9 of the Oral Decision, number 2 at page 9 and number 3 at page 10 of the Decision. 4 At page 10 of Oral Decision. ()G r lWSS654900.D0Q 1100006.900W0/1 Edmonds City Council Mayor Gary Haakenson March 15, 2007 Page 5 A provision incorporated by reference all powers and authorities of charter cities is not enough because it is the people of those cities that have the power on organic act issues and not the city councils. [After discussing that no delegation was made or intended by the state legislature of organic act authority to city councils on electoral issues, Judge Allendoerfer continues] clearly the state legislature could adopt term limits for the position of Mayor by amending Title 29 RCW or by amending the OMC as an organic act amendment for non charter cities. But it hasn't. Therefore, without a delegation of organic act authority from the state legislature, Edmonds City Council cannot do organic act business on its own. a Accordingly, I hereby declare that Section 2.01.030 of the Edmonds Municipal Code is contrary to state law, is in excess of the authority of the Edmonds City Council, and is void and unenforceable. The City then appealed this decision to the State Supreme Court. While argument and briefing were pending, Mayor Naughten lost the election and the issue was mooted. With this litigation as background, a number of years passed. As you may remember, term limits were a hot political issue in the early 90's with the election of a new wave of Republican legislators to the Congress. The Republicans assumed the majority for the first time in many years. Term limits were adopted at a federal level and, in the state of Washington, Initiative 573 was enacted by the voters. The initiative purported to impose a state statutory term limitation on who could appear on the ballot. Congressional term limits were imposed as well as term limits on state elected officials. On February 10, 1994, Judge William Dwyer of the US District Court, Western District of Washington, struck down Initiative 573 as it related to term limits for congressional candidates.5 While this case was based on a finding that Initiative 573 violated the US Constitution, it reaffirmed the rationale of Judge Allendoerfer's decision in finding that: 5 Thorsted v. Gregoire, 841, F.Supp. 1068 (1994). Copy attached as Exhibit C. i WSSG54900.D0C;1/00006.900000/) 068 Edmonds City Council Mayor Gary Haakenson March 15, 2007 Page 6 A fundamental principle Hamilton's words; `that please to govern them.' of our representative democracy is, in the people should choose whom they That is, Judge Dwyer's ruling is based on a finding the right of a voter to have a full range of candidates available to that voter is a fundamental right of government or a part, in Judge Allendoerfer; analysis, of the organic law of the State. At a federal level, changes in the organic law must be made by an amendment to the US Constitution, while at the City level, it must be done either by adoption of a charter or an amendment of the statutory charter, RCW 35A. On January 8, 1998, the Supreme Court of Washington, en Banc, overturned the provisions of Initiative 573 which related to term limits on certain state constitutional offices s As with the case before Judge Dwyer, many of the arguments made to the Court were policy arguments. The Supreme Court's analysis was very similar to Judge Allendoerfer's. The Supreme Court stated: Washington's constitutional framers believed qualifications for State constitutional officers were a matter of constitutional, not statutory, concern.', In the Supreme Court's analysis, the majority relies on In Re Bartz,s a decision central to Judge Allendoerfer's analysis in the Edmonds case. In Bartz, the Supreme Court in 1955 had held that the State legislature could fill a vacuum not addressed by the Constitutional office without amending the constitution. Judge Allendoerfer had relied on that case in his analysis noting that if the office of Mayor, like the office of Justice of the Peace in Bartz, had not been an office established by state law, the Council could have established term limits by ordinance. The Supreme Court went on to state: The general rule in Bartz remains the applicable principle as to statutory additions to qualifications for constitutional offices 9 Please note that in all of the recent appellate decisions on term limits, the issue has not been the policy merits or demerits of term limits but rather the method by which they should be imposed. The wisdom of term limits is ultimately a policy decision for the voters of the State, through the process for constitutional amendment articulated in Washington Constitutional Article 6 Gerberdipzg, et al v. Monro, 134 Wn.2d 188 (1998). Copy attached as Exhibit D. 7 Ibid, Page 204. ' 47 Wash. 2d 161 (1955). 'Page 1377. CC9 I WSS654900.DOC;1/00006.900000/1 Edmonds City Council Mayor Gary Haakenson March 15, 2007 Page 7 XXM. Whether this court thinks such choice wise, or results in the best or most effective state constitutional officers is of no consequence. With or without Initiative 573, the people retain the ultimate power to limit election of incumbents: by the reasoned and determined exercise of their franchise, they may in their discretion evict incumbents from office at the next election. Our review here is limited to the issue of whether the voters acted in compliance with our State's constitution in expressing their collective will.lo Finally, the U.S. Supreme Court has struck down term limits in US Term Limits v. Thorton," holding that term limits constituted a qualification for federal legislative office in contravention of the constitutional qualifications for federal office. CONCLUSION Therefore, when the City Council in 1997 repealed ECC Section 2.01.030, it did so after that ordinance was declared void by a Superior Court Judge. While that decision was ultimately mooted at the ballot box, Judge Allendoerfer's rationale was affirmed by the US Supreme Court and a federal court. Shortly after repeal, the State Supreme Court reaffirmed that same rationale. The common rationale in each of these decisions is that the right to vote for an officer is a fundamental part of the organic law which governs a political jurisdiction. As such, term limits must be enacted through a constitutional amendment for a state or federal government, or at the municipal level by adoption of a home rule charter or amendment of the state statutory charter by the state legislature. The reasoning of Judge Allendoerfer's decision has therefore been affirmed by federal and state courts at the highest level. The City Council has a number of risk -free options: (1) The City Council could pass a resolution stating its opinion that a candidate should not seek a third term but is free to do so. (2) Term limits can clearly be established by adoption of a home rule charter. (3) The City Council could lobby the state legislature for authority, through the amendment of RCW Title 35A, to impose term limits. 10 Ibid. " 514 U.S. 779, 115 Escort 842, 131 L.Ed.2dn 881 (1995). Copy attached as Exhibit E. C�10 ( WSS654900.DOC;t/00006.900000/} Edmonds City Council Mayor Gary Haakenson March 15, 2007 Page 8 It remains my opinion that the City Council lacks authority to enact term limits by ordinance In 1991, 1 requested that the City Council utilize special counsel to represent it in litigation between the City/City Council and the Mayor as a mayoral candidate. Such litigation puts a great strain on our working relationships. Therefore, I respectfully request that if the City Council wishes to pursue term limits by ordinance, it engage special counsel to assist it. Respectfully submitted, WSS:gjz (Al { WSS654900.DOC;1/00006.900000/} EXffiBIT A (O1ZS%9U.DOC:1 /00000.000000/ ) CA2 Page 2 of 8 mw Nw- Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) Page 1 (Cite as: Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.)) Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) lOffice of the Attorney General State of Washington AGO 1991 No. 22 June 24, 1991 CITIES AND TOWNS -COUNTIES -ELECTIONS -OFFICES AND OFFICERS -CHARTERS -OPTIONAL MUNICIPAL CODE -AUTHORITY TO IMPOSE TERM LIMITATIONS ON ELECTED LOCAL GOVERNMENT OFFICIALS 1. Charter cities, charter counties, noncharter first class cities and noncharter code cities have the authority to impose a limit on the number of terms a locally elected official can serve. 2. Depending upon the provisions of their charter, charter cities and charter counties can adopt a term limitation as a charter provision by ordinance or through the initiative process. Noncharter first class cities and noncharter code cities can only adopt a term limitation through the passage of an ordinance. Honorable Gary A. Nelson State Senator, District 21 106-A Institutions Building, AS-32 Olympia, Washington 98504 Dear Senator Nelson: By letter previously acknowledged you have asked for our opinion on questions we paraphrase as: on the number of terms an elected official can serve? 2. If the answer to question 1 is yes, how can the term limitation be enacted? Brief Answer The answer to question 1 is yes for charter cities, charter counties, noncharter first class cities and noncharter code cities. For other cities, towns and counties, the answer is no. With regard to question 2, depending on the provisions of their charter, charter cities and charter counties can adopt a term limitation as a charter provision, by ordinance or through the initiative process. First class cities and noncharter code cities can only adopt term limitations by ordinance. ANALYSIS Question 1: Can a city, town or county impose a limit on the number of terms an elected official can serve? We begin our analysis with a brief review of the types of local governments authorized in Washington. The Legislature classifies cities and towns as first class, second class, third class and fourth class. RCW 35.01.010-.040. These classifications depend upon population. For example, a first class city is defined as "one having at least twenty thousand inhabitants at the time of its organization or reorganization." RCW 35.01.010. On the other hand, a fourth class municipal corporation -called a town instead of a city -is one " having not less than three hundred inhabitants and not more than fifteen hundred inhabitants at the time of its organization." RCW 35.01.040. 1. Can a city, town or county impose a limit Cities may also be organized pursuant to article © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Q1 http://web2.westlaw.com/print/printstream. aspx?prFt=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 3 of 8 Wash. AGO 1991 NO, 22, 1991 WL 521713 (Wash.A.G.) Page 2 (Cite as: Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.)) 11, section 10 (amendment 40) of the Washington Constitution, which provides: "Any city containing a population of ten thousand inhabitants, or more, shall be permitted to frame a charter for its own government, consistent with and subject to the Constitution and laws of this state...." In addition to the plan for organizing cities and towns in Title 35 RCW, the Legislature has enacted another scheme for the organization of municipal corporations -the optional municipal code set forth in Title 35A RCW. The optional municipal code authorizes two kinds of cities, a noncharter code city and a charter code city. A noncharter code city is defined as: A noncharter code city is one, regardless of population, which has initially incorporated as a noncharter code city, subject to the provisions of this title, or is an incorporated municipality which has elected, under the procedure prescribed in this title, to be classified as a noncharter code city and to be governed according to the provisions of this title under one of the optional forms of government provided for noncharter code cities.RCW 35A.01.020. A charter code city is defined as: A charter code city is one having at least ten thousand inhabitants at the time of its organization or reorganization which has either initially incorporated as a charter code city and has adopted a charter under the procedure prescribed in this title; or which, as an incorporated municipality, has elected to be classified as a charter code city and to be governed according to the provisions of this title and of its adopted charter.RCW 35A.01.030. The Legislature has set up a somewhat similar organization for counties. Counties are classified by population ranging from AA counties which contain a population of 500,000 or more, to ninth class counties which have a population of less than 3,300, RCW 36.13.010. In addition, article 11, section 4 (amendment 21) of the Washington Constitution provides that "[a]ny county may frame a `Home Rule' charter for its own government subject to the Constitution and laws of this state..." Your question is whether any of these units of local government have the authority to limit the number of terms their elected officials can serve. In AGO 1991 No. 17 we discussed the principles governing the authority of municipal corporations: The general rule is that municipal corporations are limited to those powers expressly granted to them by the Legislature and to powers necessarily or fairly implied in or incident to the powers expressly granted. Chemical Bank v. WPPSS, 99 Wn.2d 772, 792, 666 P.2d 329 (1983); City of Spokane v. J-R Distributors, Inc., 90 Wn.2d 722, 585 P.2d 784 (1978). At least as to matters of local concern, however, this general rule does not apply to cities and counties that have adopted charters pursuant to article 11, sections 4 and 10, of the Washington Constitution, respectively, or to cities operating under the Optional Municipal Code, Title 35A RCW. These cities and counties have legislative power akin to that of the state, except that their actions cannot contravene any constitutional provision or legislative enactment. Thus, such a city or county has broad legislative power except when restricted by enactments of the state. King Cy. Coun. v. Public Disclosure Comm'n, 93 Wn.2d 559, 562-63, 611 P.2d 1227 (1980); Winkenwerder v. Yakima, 52 Wn.2d 617, 622, 328 P.2d 873 (1958); La Mon v. Westport, 22 Wn.App. 215, 217-18, 588 P.2d 1205 (1978); Chemical Bank v. WPPSS, 99 Wn.2d 772, 792-93, 666 P.2d 329 (1983).AGO 1991 No. 17 at 2. To answer your first question we must resolve two issues: (I) Does a term limitation contravene any constitutional provision or legislative enactment? (2) Do the various units of local government have the authority to enact a term limitation? Turning to the first issue, we are persuaded that a term limitation for local elected officials does not contravene a provision of the Washington Constitution or legislative enactment. Article 3, section 25 (amendment 31) sets out qualifications for state office. However, the © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 014 http://web2.westlaw.com/printlprintstream. aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 4 of 8 Wash. AGO 1991 NO, 22, 1991 WL 521713 (Wash.A.G.) Page 3 (Cite as: Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.)) Constitution is silent on the qualifications for local elected officials. [FNI] Article 3, section 25 provides: "No person, except a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office." These qualifications only apply to state officers. For example, in In re Bartz, 47 Wn.2d 161, 287 P.2d 119 (1955) the court ruled that a justice of the peace is a judicial officer, rather than a state officer. Accordingly, the court ruled that article 3, section 25 did not apply and that the Legislature had the authority to require that a justice of the peace be an attorney. Since article 3, section 25 does not apply to the elected officials of cities, towns and counties and the Constitution is otherwise silent, a term limitation for these officials cannot conflict with a provision of the Constitution. Under the Constitution, the Legislature is authorized to enact laws for the organization of cities and counties. Article 11, section 10 provides that "the legislature, by general laws, shall provide for the incorporation, organization and classification ... of cities and towns...." Article 11, section 4 provides that "[t]he legislature shall establish a system of county government ... throughout the state ... and by general laws shall provide for township organization, under which any county may organize...." Pursuant to this authority, the Legislature has enacted some qualifications for local officials. These qualifications are scattered throughout Titles 35, 35A and 36 RCW. The prescribed qualifications are very general. They usually require that the candidate be a voter and a resident of the jurisdiction for some specified period of time. For example, RCW 35.23.030 provides: No person shall be eligible to hold any elective office in any city of the second class unless he is a registered voter therein and has resided therein for at least one year next preceding the date of his election.RCW 35.24.030 provides: No person shall be eligible to hold an elective office in a city of the third class unless he be a citizen of and a legal resident therein. RCW 35.27.080 provides: No person shall be eligible to or hold an elective office in a town unless he is a resident and elector therein.RCW 35A.12.030 provides: No person shall be eligible to hold elective office under the mayor -council plan unless the person is a registered voter of the city at the time of filing his declaration of candidacy and has been a resident of the city for a period of at least one year next preceding his election.RCW 36.16.030 provides: In every county there shall be elected from among the qualified voters of the county [authorized county officials].... RCW 36.32.040 provides: [T]he qualified electors of each county commissioner district, and they only, shall nominate from among their own number, candidates for the office of county commissioner of such commissioner district to be voted for at the following general election. A limitation on the number of terms an elected official can serve has the effect of imposing an additional qualification that must be met by the candidate. To use RCW 35.23.030 as an example, if a two -term limitation were in place, a candidate for elective office in a second class city would have to meet the following requirements: 1. The candidate must be a registered voter. 2. The candidate must have resided in the city for at least one year preceding the date of the election. 3. The candidate must not have held the office sought for two terns. The Washington Supreme Court reached the conclusion that imposing an additional qualification does not contravene statutes setting forth the qualifications for the election of local officials in State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P.2d 94 (1934). This case concerned a provision in a city charter that no member of the city council "shall hold any other office, federal, state, county or municipal..." 177 Wash. at 620-21. The relator, who had been elected to the city council and also held office as a director of a school district, disputed the application of this provision in the charter. One basis of the challenge was that the charter provision conflicted with statutes enacted by the legislature setting forth the qualification for election of city officials. The statute provided that to hold elective office one must be a citizen of the United States and the State of Washington and an elector of the jurisdiction. [FN2] The court rejected © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C11 http://Web2.westlaw.cornlprinttprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 5 of 8 Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) Page 4 (Cite as: Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.)) this argument stating: The only attack made by the relator upon the charter is that it purports to superadd certain qualifications necessary for elective officers to those imposed by the legislature.... Had the framers of the charter sought to lessen the requirements demanded by the statute, a different question would be presented, for then the charter would be in direct conflict with the statute. But that is not the case here. Section 9929 merely provides that no person shall be competent to hold elective office unless he possesses certain qualifications. It does not say that no other requirements shall be prescribed, nor does it say that the political subdivision therein named may not impose restrictions not inconsistent with the statute. After all, the statute merely fixes a minimum of qualification below which its political subdivisions may not go. It does not say that other qualifications may not be required, in so far as they affect only the particular subdivision. 177 Wash. at 623-24 (emphasis added). The statutory qualification in Griffith is substantially the same as those previously cited in this opinion. Compare Rem.Rev.Stat. § 9929 and RCW 35.23.030; 35.24.030; 35.27.080; 35A.12.030; 36.16.030. Applying the same line of reasoning in this situation, we must conclude that a term limitation, which would constitute an additional qualification for a candidate, would not contravene the statutes which have been enacted by the Legislature. This brings us to the second issue raised by your first question: Do the various units of local government have the authority to enact a term limitation? We begin with charter counties and charter cities. These units of local government clearly have the authority to enact term limitations. Charter cities and charter counties have legislative power, at least as to matters of Iocal concern, akin to that of the state. AGO 1991 No. 17 at 2. In State ex rel. Griffiths, 177 Wash. 619 (1934), the court specifically recognized the authority of a charter city to impose an additional requirement for candidates seeking office in that city. More recently, the court has approved the exercise of authority by charter counties in the election area. In State ex rel. Carroll v. King Cy., 78 Wn.2d 452, 474 P.2d 877 (1970). the court considered a provision of the King County charter that provided for the election of certain county officials in odd -numbered years and adjusted the terms of certain officials to match the new election dates. In sustaining this charter provision the court stated: We think that ... the framers of amendment 21 meant to confer upon counties adopting home rule charters those powers which had theretofore been conferred upon the legislature under Const. art. 11, § 5, including the power to fix the terms of office of county officers, with certain exceptions expressly set forth. It will be observed that the power to frame its own organic law is conferred in broad terms upon the county adopting a charter. While it is not permitted to "affect the election" of the prosecuting attorney, the superintendent of schools, the judges of the superior court and the justices of the peace (all offices in which the state has an interest), there are no restrictions placed upon its right to provide for the election of, prescribe the duties of, and fix the compensation of those officers which it deems necessary to handle its purely local concerns.78 Wn.2d at 456. The court followed State ex rel. Carroll in a subsequent decision, Henry v. Thorne, 92 Wn.2d 878, 602 P.2d 354 (1979). Henry concerned a charter provision that provided a greater restriction on the timing of elections to fill vacancies than those set forth in the State Constitution or statutes enacted by the Legislature. The court approved this charter provision stating: (Amendment 21) providing for county home rule expressed the intent of the people of this state to have "the right to conduct their purely local affairs without supervision by the State, so long as they abided by the provisions of the constitution and did not run counter to considerations of public policy of broad concern, expressed in general laws.92 Wn.2d at 881. Since charter cities and charter counties have broad legislative powers in matters of local concern, we conclude that they have the authority to impose term limitations on locally elected officials. We next turn to local governments that have not © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. CIG http://web2.westlaw.comlprintlprintstream.aspx?prft=HTU LE&destination=atp&sv=Split... 3/14/2007 Page 6 of 8 Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) Page 5 (Cite as: Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.)) adopted a charter. The rule for such governments is that they are limited to those powers expressly granted to them by the Legislature and the power necessarily or fairly implied in or incident to the powers expressly granted. AGO 1991 No. 17 at 2. In reviewing the powers delegated to local governments, we find two that have been delegated sufficient authority by the Legislature to impose term limitations -first class cities, that have not adopted a charter, and noncharter code cities under the optional municipal code. With regard to first class cities, RCW 35.22.280(1) provides: Any city of the first class shall have power: (1) To provide for general and special elections, for questions to be voted upon, and for the election of officers[.]This power is granted to all first class cities, even cities that have not adopted a charter. In light of the specific grant of authority to provide for the election of officers, we conclude that a first class city may impose a term limitation upon city officers. Our conclusion here is consistent with our opinion in AGO 1991 No. 3. In that opinion we concluded that RCW 35.22.280(1) authorized a noncharter first class city to enact an ordinance imposing an additional residency requirement on candidates for the office of freeholder, elected to frame a city charter. AGO 1991 No. 3 at 11. Noncharter code cities have also been granted broad powers by the Legislature. RCW 35A.01.010 provides: The purpose and policy of this title is to confer upon two optional classes of cities created hereby the broadest powers of local self-government consistent with the Constitution of this state. Any specific enumeration of municipal powers contained in this title or in any other general law shall not be construed in any way to limit the general description of power contained in this title, and any such specifically enumerated powers shall be construed as in addition and supplementary to the powers conferred in general terms by this title. All grants of municipal power to municipalities electing to be governed under the provisions of this title, whether the grant is in specific terms or in general terms, shall be liberally construed in favor of the municipality. RCW 35A.21.160 provides: A code city [FN3] organized or reorganized under this title shall have all of the powers which any city of any class may have and shall be governed in matters of state concern by statutes applicable to such cities in connection with such powers to the extent to which such laws are appropriate and are not in conflict with the provisions specifically applicable to code cities.RCW 35A.11.020 provides in part: The legislative body of each code city shall have power to organize and regulate its internal affairs within the provisions of this title and its charter, if any; and to define the functions, powers, and duties of its officers and employees; within the limitations imposed by vested rights, to fix the compensation and working conditions of such officers and employees and establish and maintain civil service, or merit systems, retirement and pension systems not in conflict with the provisions of this title.... After reviewing the statutes in AGO 1972 No.24 we stated: The critical point to be drawn from these statutes is that by electing to come under the optional municipal code a city ceases to be governed by the traditional rules of delegated powers.... Instead, a city so opting thereby becomes possessed of all powers which either have been specifically granted by the legislature to any class of city (RCW 35A.21.160, supra) or which could be granted by the legislature (RCW 35A.01.010 and 35A.11.020, supra), subject only to such restrictions or limitations as are contained in the statutes themselves or within the state constitution; which is but another way of saying that the optional municipal code entitles cities operating thereunder to the equivalent of the home rule powers otherwise available only to first class charter cities.AGO 1972 No. 24 at 7. There is no Washington case authority directly on point relating to local governments that have not adopted a charter. However, we have discovered a © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 017 http://web2.westlaw.corn/print/printstream.aspx?prft=H T Nff-E&destination=atp&sv=Split... 3/14/2007 Page 7 of 8 Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) Page 6 (Cite as: Wash. AGO 1991 NO.22, 1991 WL 521713 (Wash.A.G.)) decision from Pennsylvania that appears directly on point and we find the decision persuasive. In Commonwealth of Pennsylvania v. CIark, 515 A.2d 1320, 512 Pa. 1 (1986), the court considered the authority of a city to enact an ordinance that limited the office of mayor to two terms. The city in question had chosen to be governed by the Code and the Charter Law, Mayor -Council Plan A. 515 A.2d at 1322. The law granted the city broad powers somewhat similar to those granted in the optional municipal code. [FN4] One of the issues before the court was whether "a third class municipality operating under Mayor -Council Plan A of the Charter Law has authority to promulgate an ordinance limiting the number of times a municipal officer can stand for reelection." 515 A.2d at 1324. The court concluded that the city did have the authority to enact the ordinance: (4) Under section 303(1), supra, the Legislature does empower the Council to administer local affairs. The power of the Council to limit incumbent municipal officers, including mayors to one term of reelection, as in the case at bar, is well within the scope of authority granted by the Legislature through section 303(1). Further, section 304 (53 P.S. § 41304, Supp.1986) provides "[a] general grant of municipal power ... intended to confer the greatest power of local self-government consistent with the Constitution of the State." Moreover, section 304 also provides that "[a]ll grants of municipal power to cities governed by an optional plan under this act, whether in the form of specific enumeration or general terms, shall be liberally construed in favor of the city." 515 A.2d at 1324 (footnote omitted). In our judgment the court's reasoning is equally applicable to powers granted noncharter first class cities and noncharter code cities. These jurisdictions have been granted the authority to impose tern limitations on their elected officials. We do not find a similar grant of authority to second and third class cities, towns or the various classifications of counties. See e.g., RCW 35.23.010; 35.27.010; 36,32.120. In absence of a delegation of authority from the Legislature these levels of local government do not have the authority to limit the terms of their elected officials. Question 2: If the answer to question 1 is yes, how can the term limitation be enacted? The starting point for our analysis of your second question is the power of the Legislature to enact laws for the organization of city and county government. Const. art. 11, §§ 5, 10. Clearly, the Legislature has the authority to enact term limitations for city and county officials. By the same token, the Legislature could specifically prohibit tern limitation for local officials or enact statutes setting forth the exclusive qualification for local officials, which would have the same effect. Before any city, town or county can impose a term limitation it must carefully review the statutes governing its elections to determine if the Legislature has enacted exclusive qualifications or acted in some other way to prohibit term limitations. We have reviewed some statutes. See infra. p. 5. However, given the broad nature of your question, we have not made an exhaustive review of the law in this area. Accordingly, any jurisdiction considering a term limitation should conduct its own review. With regard to charter cities and charter counties, the means of enacting a term limitation depends on the provisions of the charter. Obviously, the limitation can be adopted as a provision in the charter. This can be done when the charter is initially drafted or by amendment. See e.g., RCW 35.22.050-.190; 35A.08.030-.120; 35A.09.010-.070. A term limitation also might be accomplished by ordinance. However, this also depends on the provisions of the charter. If the charter sets out the exclusive qualifications for a candidate seeking city or county office, the legislative authority would be without power to change those qualifications. In this situation, a charter amendment would be necessary to enact a term limitation. On the other hand, if the charter sets out certain minimum qualifications, the legislative authority would have the power to add a term limitation by ordinance, so long as it did not conflict with the qualifications © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. CAS http://web2.westlaw.conVprintlpi intstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 8 of 8 Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) Page 7 (Cite as: Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.)) contained in the charter. A term limitation in a charter city or charter county might also be enacted by initiative of the people. Again, this can only be done if the charter provides for initiatives. If the charter does not provide an initiative process, the people have no direct legislative powers. If the charter does provide an initiative process, the people must exercise their legislative power in accordance with the charter. Thus, as with the city or county legislative authority, the people would have the power to add a term limitation, so long as it did not conflict with the qualifications contained in the charter. We turn next to noncharter first class cities and noncharter code cities. These units of local government can only adopt term limitation by ordinance. -Since these jurisdictions have not adopted a charter, the term limitation cannot be included as a charter provision. In addition, the people of noncharter first class cities and noncharter code cities do not have power to legislate directly through the initiative process. RCW 35.22.200; AGO 1970 No. 8 at 4. We trust the foregoing will be of assistance to you. Very truly yours, Kenneth O. Eikenberry Attorney General William B. Collins Assistant Attorney General [FNl] As originally adopted in 1889, the Washington Constitution provided a -term limitation for county officials. Article 11, section 7 stated: "No county officer shall be eligible to hold his office more than two terms in succession." Article 11, section 7 was repealed by amendment 22 in 1948. [FN2] The statute at issue provided: That no person shall be competent to qualify for or hold any elective public office within the state of Washington, or any county, district, precinct, school district, municipal corporation or other district or political subdivision, unless he be a citizen of the United States and state of Washington and an elector of such county, district, precinct, school district, municipality or other district or political subdivision.Rem.Rev.Stat. § 9929; Laws of 1919, ch. 139, § 1, p. 390. [FN3] The term "code city" includes both charter code cities and noncharter code cities. RCW 35A.01.030. [FN4] The Code and Charter Law provided in part: Each city governed by an optional form of government pursuant to this act shall, subject to the provisions of and limitations prescribed by this act, have full power to: (1) Organize and regulate its internal affairs, and to establish, alter, and abolish offices, positions and employments and to define the functions, powers and duties thereof and fix their term, tenure and compensation; ...515 A.2d at 1322 n. 6. Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) END OF DOCUMENT © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 01-19 http://web2.westlaw.conVprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 EXHIBIT B {G]Z596928.DOC;1/00000.00WWj 020 a 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 coot, 0 y 4LIWO IN THE SUPERIOR COURT OF THE STATE OF WA4gd ZTj'N IN AND FOR THE COUNTY OF SNOHOMISH��kINSS CITY OF EDMONDS, a Washington municipal corporation, Plaintiff, vs. No. 91-2-04568-1 LARRY NAUGHTEN and DEAN V. WILLIAMS, Snohomish County Auditor, Defendants. ] VERBATIM REPORT OF ORAL DECISION BE IT REMEMBERED that on the 13th day of - August, 1991, the above -entitled and numbered cause came on for Summary Judgment before the Honorable JAMES ALLENDOERFER, sitting in Department 2 of the Snohomish County Courthouse, in the City of Everett, County of Snohomish, State of Washington; For the- Plaintiff: George Cody, attorney; For. the Defendant. Thomas Bia.i t. and Barbara Gustafson, attorneys; William Meek:, CSR, Court Repatter-•. 021 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 1 21 22 23 24 25 THE COURT: In the matter of the City of Edmonds v. Larry Naughten and Dean V. Williams, both sides have made motions before this court for summary judgment. I have considered the briefs of the parties. I have considered the agreed statement of facts and the argument of counsel. I find that there are no material issues of disputed fact and that this case is in a posture where summary judgment is appropriate. There are two issues presented to the Court. One is the validity of section 2.01.030 of the Edmonds Municipal Code which was originally enacted as Section 3 of Ordinance No. 2349 and was effective on .January 1, 1984. The second issue before the Court is the validity of Mr. Naughten's Declaration of Candidacy, which was filed with the County Auditor's Office on July 24, 1991. My legal analysis starts with the question o'f wt-jether the concept of term limitations for a mayor's position is constitutional or unconstitutional. In determining an answer to that quest.inri, the Count_ must look at the equal protection clause of the U.S. Collst i tut i.on and the privileges and immunities clause of the Washington 022 1 2 3 4 5 6 7 8 9 10 1 ]. 12 13 14 15 16 17 18 19 20 21 22 2) 24 25 State Constitution. In analyzing the challenged section of the Edmonds Municipal Code in relation to those two constitutional provisions, I have chosen to apply the "rational basis test" rather than the "compelling interest test". I do not feel that heightened scrutiny of this section of the Edmonds Municipal Code is necessary or justified. Heightened scrutiny, which results from application of the compelling interest test, is justified only in 'cases involving electoral. classifications which discriminate on the basis of wealth, race, creed or color, and is not justified in cases involving electoral classifications which are less fundamental in character, such as the one being challenged here. In making this determination as to which test to rise, I have relied most heavily upon the case of Kraft v. Harris, 18 Wn. App. 432. In applying the rat: i onal, basis test , the Count Starts with a presumption of validity. The Court then asks the following question: Does the Edmonds ordinance: or whatever ordinance is under scrutiny at a given time, advance a legitimate -state .interest? Is the Edmonds 023 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ordinance relevant to the achievement of a valid state interest? In answering such questions, courts give deference to the wisdom of the legislative body which enacted the challenged ordinance. I do find that term limitations are arguably justifiable on any of of the following theories and are, therefore, constitutional: Term limitations preserve fresh and responsive government. Term limitations guard acga'inst political entrenchment. Perm limitations inject new and innovative leadership into the political system. They encourage incumbents to devote their full energies to public office rather than campaigns during their final term of office. They expand the spectrum of political candidates, and they tend to avoid political monopolies. Because any and all of those theories are relevant to the achievement of a valid state interest, I find that: the Edmonds ordinance, or the concept behind the Edmonds ordinance, is constitutional. I further .find that even if I were to have applied the compelling interest test, the Edmonds urd:irianc.e would be constitutionally valid. I note C-24 1 2 3 4 5 LIM 7 8 9 10 11 12 1.3 14 15 16 17 18 19 20 21 22 23 24 25 that every case across the United States that I have reviewed has also held that term limitation ordinances are constitutional; and, of course, we may rely upon the 22nd Amendment to the United States Constitution, which was approved in 1951, as an example of a term limitation which is clearly relevant to the achievement of a valid public purpose. The term limitation in the 22nd Amendment, incidentally, is more stringent than the one that Edmonds has applied to its mayor. So, having thus determined that a term limitation is conceptually constitutional, the next question the Court turns to is the harder of the questions presented today: Does the Edmonds City Council have the legislative power to enact term limitations; or what level of government does have such power? Are term limitations something that should be reserved for constitutions or should they be reserved for state legislatures, or, as in the case of Edmonds, may they be enacted by a city council? In answering this question, I turn first to the basic str»c_:ture of municipal Cinverrllnent in the State of W;-3.;h.1ngton. Tbat structure arises originally from Article 11 Sectic.1n 10 of the State 025 1 2 3 4 5 6 T 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 constitution which authorizes the State legislature to enact laws for the organization of cities. The Washington constitution is fundamentally a document which restricts and limits e:-::.=:�.e-g :s>1ature: That is, it reserves unto the people certain checks and balances. I note that that is just the reverse of the U.S. Constitution, which itself is the source of all legislative authority, and Congress can only operate within -the bounds of a constitutional grant. That's not the case with the State of Washington, which recognizes a fundamentally autonomous legislature. The Washington constitution is silent on the qualifications for local elected officials. That is, there are no restrictions in the constitution which govern what the legislature may or may not do on this topic. The legislature is, therefore, free to put whatever limitations it chooses on electoral qualifications, subject only to the coristi.tuti.onal principles of equal. protection and privileges and immunities. So, I now turn to an arialysis of what our legislature has dont-- with respect to candidate qualifications. There are two state statutes that have beeri Passed. One is R.C.W. 42.04.020. That 026 1 2 3 4 5 6 7 8 r 10 11 1.2 i3 14 15 16 17 18 19 20 21 22. 23 24 2 5 states that a candidate for any state or municipal office must be a United States citizen and -must be an elector of the jurisdiction which he is choosing to serve. Secondly, we have R.C.W. 35A.12.030, applying to code cities, which states that a candidate must be a registered voter in the city which he is choosing to serve, and he must have been a resident of that city for at least a year. That is the sum total of all restrictions the legislature has placed on municipal elected officials; and you will note that the legislature has apparently chosen not to impose term limitations as part of said minimum qualifications. On July 1, 1969, however, the State legislature adopted a very broad and significant amendment to municipal law in this state. It adopted the optional Municipal Code, which I will refer to as the OMC, and which is known as title 35A R.C.W.. The OMC states that cities with charters, and even those without charters, are granted the option of having broad Koine rule powers. Non--ebartNr C-ities must rely utaUn statutory provisions enacted by the State Legislature as �:=nr�titlti.lt:iziCJ their organic: ac.t. That is; that t1le OZ7 1 2 3 4 5 6 7 8 P1 10 11 12 3.3 14 15 16 17 18 19 20 21 22 23 24 23 State Legislature has written charters for these cities without the necessity of voter participation or city council participation. Charter cities, on the other hand, must write their own organic act subject to approval by the voters of that city. Under either scenario, that i.s, under either the non -charter or the charter scenario, home rule powers of cities are extremely broad, and such powers may be further expanded or supplemented by local legislation. As an illustration of the breadth of these powers, I refer to the clear and unmistakable legislative intent expressed in the following three sections of the OMC: R.C.W. 35A.01.010 confers on OMC cities the "broadest powers of local self-government consistent with the Constitution." R.C.W. 35A.11.02O states that OMC cities have "all Powers possible for a city under the Constitution." Tt also states that t7MC cities "sha11. have any authority ever given to any class of 113.131.iir;i.pal,ity or to all 'mutlici.pal:i.t:[es of the state." Finally, R.-C.W. 35A.11.050 states that: t1-ie grant of r111.11iicipal power i,s to i,rz c olistrued 028 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1` 'Orally in favor of OMC cities. Any specific itemizations of powers are merely supplementary or explanatory of the general presumption of power. Also, under either OMC scenario, that is the charter or non -charter scenario, there are certain limitations that are imposed on the broad powers referred to above. Those limitations arise, basically, from the 40th amendment of the State constitution. The first limitation is that an OMC city must abide by the State constitution and cannot violate it in any sense. For example, our State constitution has a provision that prohibits the lending of credit by cities. That is, cities can't make loans to private parties or make gifts of, money or of their credit. The State Legislature cannot violate this prohibition, nor may a city through its own ordinances. The second limitation is that if general laws are enacted by the state which either deny certain powers to cities or preempt certain areas, said laws may not be violated, supplemented or contradicted by the cities themselves. For example: a general law has been enacted in this state providing that candi(lates fox• the mayar's office 029 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21. 22 23 24 25 must be registered voters of the city which they seek to serve; this preempts the field, and certainly no city through its local ordinances could change that in any respect. The third restriction on OMC cities is the requirement that there must be an express or implied delegation of authority from the State Legislature to the cities on certain special issues of paramount state concern, or said issues are declared out of bounds for local ordinances. This third limitation is -expressed most. clearly in case law, but it's also expressed in R.C.W. 35A.21.160. An example of this third limitation would be a case where a city might try to create a municipal: court by its -own - - ordinances, or might attempt to create a new power of taxation by ordinance. The State Supreme Court has ruled in both of those examples that such matters are of paramount state concern and are out of bounds for cities, even OMC cities. Now, applying those three catega.ries of limitations to the facts of this case. First of all, is there a constitutional limitation against a city establ 3Shi ng a team 3 i.mi tat- i rill rill t.)-le office of its mayor? The answer is no. The constitution is s i l ont on that issue. 030 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 .3 24 25 Second, is there some statutory prohibition or pre-emption, express or implied, against a city council imposing a term limitation on its mayor? In answering that question, I make note, again, of the two statutes which the legislature has adopted to express what it feels the minimum qualifications should be for city candidates; R.C.W. 35A.12.030 and R.C.W. 42.04.020. I find that those expressions by the legislature are not intended to be exclusive, but are intended to be merely the minimum standards that a. city cannot go below_ I find that this question has been answered by our Supreme Court in the case of State In Re Griffiths Investment v. Superior Court 177 Wash. 619. I further find that this principle was followed more recently by our Appellate Court in the case of :raft v. Harris, 18 Wn. App. 432. I, therefore, turn to the third limitation to see if it. applies. Is the topic of term limitations for city officials an area of paramount state concern, or joint state,/city concern, thereby placing it o».t of bounds for city cour,c:i Xs? In answer..iuq that (,iupstioti, I have 1r.)oke(a to R.G.W. 35A.2.1.160, and I have looked to the Sut)remF Court (:asN (.-).f Issaquat) v. Teleprompter, 93 031. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1.9 20 21. 22 23 24 25 r- Wn. 2nd 567. Let me restate the question in a different format. Are matters relating to the state electoral process in a special catagory of funda-mental democratic rights which can only be acted upon by the state legislature or by the vote of the people through a locally enacted charter? That is, are electoral issues organic act issues, and, if so, who can decide them? I find that term limitations on political candidates directly relate to the integrity of the electoral process and are, therefore, fundamental to the democratic system of government. The right to run for office is a basic right of. citizenship. Such matters are of organic act significance. I have searched for case law authority which supports this finding. I am relying, in part, upon Sorenson v. Bellingham, 80 Wn. 2nd 547; I ant also relying, in part, on Buckingham v. State, a Delaware case found at 35 Atl. 2nd 903. The Buckingham case also leads to my next finding: That matters of organic: act signif-icanre may be enacted, supplemented or amended solely by the level of government that has, the tinder. l.ving organic act authority. In the context of our present 1-:ase, that- would mean tlia.t the Level. of. 032 [ I 1 government which establishes the office of mayor 2 reserves the exclusive authority to set the 3 qualifications for mayoral candidates. 4 In charter cities, that power is vested by 5 the 40th amendment to our Constitution, and/.or by 6 the OMC, in the electorate of the city; that is, the 7 authors of the charter. In non -charter cities, that 8 power is vested by the Constitution in the State 9 Legislature, which is the author of the organic act 10 for non -charter cities. 11 A delegation of organic act authority to 12 city councils is legally possible. But such a 13 delegation would have to be expressly stated in the 14 OMC, or in`a' city 's charter, or at least it would 15 have to be necessarily implied from some provision 16 in the OMC or in the city's charter. Mere general 17 statutes found in the OMC which apply to charter and 18 non -charter cities alike, and which make no speccifi.c 19 reference to electoral issues are not enough. A 20 mere principle of. liberal Statutory constr.urtirin 21 relating to OMC powers is not eriough. A provision 22 inc:orrpar.a.ting by reference ,-.13 powers and authority 23 of charter Cities is riot: t'.tiough; because it is t:1le 24 people of those ci t ie b that: have the power. on 25 r,)rganic act issut--_�s and not t1he c,.ity rouz'jr.:i1s. 033 I I find no express or implied delegation of 2 organic act authority to city councils on electoral 3 issues. In fact, I find that R.C.W. 35A.42.020, 4 R.C.W. 35A.12.030, and R.C.W. 35A.21.160 imply that 5 there was no such delegation intended by the State 6 Legislature. 7 Clearly, the State Legislature could adopt 6 term limitations for the position of mayor by 9 amending Title 29 R.C.W., or by amending the OMC as 10 an organic act amendment for non -charter cities. 11 But'it hasn't. 12 Clearly: a charter city could adopt term 13 limitations in its own charter by vote of the 14 people. That is, amend its own organic act as the 15 City of Seattle did in the Griffiths case and in the 16 Kraft case. But Edmonds doesn't have a charter that 17 it can amend. Edmonds is not the author of its own 16 organic act. A non -charter city never can be the 19 author of its own organic act. The Edmonds City 20 Council did .riot: establish the position of the mayor; 21 the Legislature did. Therefore, without a 22 delegation of organic act authority from the State 23 Legislature, the Eilmc nds, City Council cantiai: do 24 organic act bu.s.iness on .its own. 2.5 T hereby dt-c:l are that !;ei:� t iojl 034 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2.01.030 of the Edmonds Municipal Code is contrary to State law, is in excess of the authority of the Edmonds City Council, and is void and unenforceable. I further hold that Larry Naughten's Declaration of Candidacy for a third consecutive term as Mayor of the City of Edmonds is valid and that he should remain on the ballot. If elected, I hold that he is qualified to serve a third term. I further hold that the injunctions sought by 'the City of Edmonds are denied and that the City's complaint is dismissed, That completes my ruling. Are there questions from counsel. MR. BURT: Your Honor, may the transcript of your ruling stand as your order in the case or would you prefer a written order be prepared. MR. COPY: I can have a written order prepared certainly by first thing in the morning and to counsel, if that time table would work. I think. we should have Jt, a transcript, prepared. acid I will. order one, but rather than delay it, I think I can gels a suroma.ry judomu2ni: ur der nr,e.par.ed 'ray the III c►rning . T H E COURT: is t� 1 I d r., i t- 035 I that quickly I think that would be appropriate. Do 2 you want to have a time to present this tomorrow or 3 are you going to communicate with Mr. Burt to avoid 4 a formal presentation? 5 MR. CODY: If I can get it to Mr. Burt b by fax in the morning, I have to be up here on some 7 matters, and if he approves it I can just bring it 8 by and get it entered. I think we can work that 9 from there, unless he would rather a specific time 10 for presentation. 11 MR. BURT: I think that will work, 12 Your Honor. If we don't set a specific time, I 13 think we can work it out by communicating. 14 THE COURT: Very well. If there is 15 nothing further, the Court will be in recess. 16 (The proceedings were concluded.) 17 18 19 20 21. 22 23 24 25 036 EXHIBIT C {GJZS96928.DOC;1/00000.000000/) 037 Page 2 of 23 841 F.Supp. 1068 841 F.Supp. 1068,62 USLW 2523 (Cite as: 841 F.Supp.1068) P Briefs and Other Related Documents Thorsted v. GregoireW.D.Wash.,1994. United States District Court,W.D. Washington, at Seattle.. Susan THORSTED; William First; and Timothy S. Zenk, PIaintiffs, v. Christine O. GREGOIRE; and Ralph Munro, Defendants, andSherry Bockwinkel; Limit; Citizens for Term Limits; U.S. Term Limits; Alan M. Gottlieb; Lee Gill; and Wilbur B. McPherson, Intervenors Defendants. Margaret COLONY; League of Women Voters of Washington; George Cheek; John Clute; and Thomas Foley, Plaintiffs, V. Ralph MUNRO; and Christine O. Gregoire, Defendants, andSherry Bockwinkel; Limit; Citizens for Term Limits; U.S. Term Limits; Alan M. Gottlieb; Lee Gill; and Wilbur B. McPherson, Intervenors Defendants. Nos. C92-1763WD, C93-770WD. Feb. 10, 1994. Voters and Congressional representative brought action challenging constitutionality of Washington's ballot access statutes with term limits for members of United States Senate and House of Representatives. The District Court, Dwyer, J.. held that: (1) statutes violated qualifications clauses, and (2) special circumstances would make award of attorney fees unjust. Judgment for plaintiffs. West Headnotes [1] Federal Courts 170B C=272 170B Federal Courts 170BIV Citizenship, Residence or Character of Parties, Jurisdiction Dependent on Page 1 170BIV(A) In General 170Bk268 What Are Suits Against States 170Bk272 k. Injunctive or Mandatory Relief, Declaratory Judgments. Most Cited Cases Eleventh Amendment does not bar actions to enjoin state officials from enforcing unconstitutional Iaw. U.S.C.A. Const.Amend. 11. [2] Constitutional Law 92 C=42.3(2) 92 Constitutional Law 9211 Construction, Operation, and Enforcement of Constitutional Provisions 92k41 Persons Entitled to Raise Constitutional Questions 92k42.3 Particular Classes of Persons 92k42.3(2) k. Citizens, Residents, or Taxpayers; Property Owners. Most Cited Cases Constitutional Law 92 C;-42.3(3) 92 Constitutional Law 92H Construction, Operation, and Enforcement of Constitutional Provisions 92k41 Persons Entitled to Raise Constitutional Questions 92k42.3 Particular Classes of Persons 92k42.3(3) k. Government or Public Officers or Employees. Most Cited Cases Voters and congressional representative had standing to challenge constitutionality of Washington's ballot access statutes with terns limits for United States Senate and House of Representatives, even though statutes provided write-in procedure, and even though no injury had actually occurred; representative would be barred from ballot in 1998, and threatened injury to right to vote was sufficient. West's RCWA Init.Measure 573 prec. § 29.68.004. [3] Federal Civil Procedure 170A C=103.2 170AFederal Civil Procedure 170AII Parties © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 038 http://web2.westlaw.com/print/printstream. aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 3 of 23 841 F.Supp. 1068 841 F.Supp. 1068,62 USLW 2523 (Cite as: 841 F.Supp. 1068) 170AH(A) In General 170AkIO3.1 Standing 170Ak103.2 k. In General; Injury or Interest. Most Cited Cases If one plaintiff has standing, it does not matter whether others do. [41 Elections 144 0-21 144 Elections 1441 Right of Suffrage and Regulation Thereof in General 144k20 Power to Regulate Nominations and Ballots 144k21 k. In General. Most Cited Cases Each voter has right to choose among candidates placed on ballot without unconstitutional exclusions or restrictions. [5) Associations 41 C=20(1) 41 Associations 41k20 Actions by or Against Associations 41k20(1) k. In General. Most Cited Cases Organization of voters had representational standing to sue on behalf of voter -members who had standing to challenge constitutionality of Washington's ballot restriction statutes. West's RCWA Init.Measure 573 prec. § 29.68.004. [61 Federal Courts 170B 170B Federal Courts 170BI Jurisdiction and Powers in General 170BI(A) In General 170Bk12 Case or Controversy Requirement 170Bkl2.1 k. In General. Most Cited Cases (Formerly 170Bk12) Under "doctrine of ripeness," federal courts refrain from deciding abstract disagreements that might never become real disputes, Page 2 170Bk12 Case or Controversy. Requirement 17011k12.1 k. In General. Most Cited Cases (Formerly 170Bk12) Ripeness is largely question of timing, and court must look to both fitness of issues for judicial decision and hardship to parties of withholding court consideration. [8] Federal Courts 170B 4D-13 170B Federal Courts 170BI Jurisdiction and Powers in General 170BI(A) In General 170Bk12 Case or Controversy Requirement 170BkI3 k. Particular Cases or Questions, Justiciable Controversy. Most Cited Cases Challenge by voters and congressional representative to Washington's ballot access statutes with term limits was ripe for adjudication, although statutes would not bar representative from ballot until 1998; delay would substantially harm sponsor of the initiative -based statutes, would deprive voters of information, would inflict uncertainty on parties and public, and would create chance of Ninth Circuit not reviewing issues before ostensible winners of 1998 election are sworn into office. West's RCWA Init.Measure 573 prec. § 29.68.004. [9] Constitutional Law 92 C-90.1(1.2) 92 Constitutional Law 92V Personal, Civil and Political Rights 92k90 Freedom of Speech and of the Press 9200.1 Particular Expressions and Limitations 9200.1(1.2) k. Election Regulations. Most Cited Cases Constitutional Law 92 C-278.4(2) [7] Federal Courts 170B C-12.1 92 Constitutional Law 92XII Due Process of Law 170B Federal Courts 92k278.4 Regulations Affecting Public 170BI Jurisdiction and Powers in General Officers and Employees 170BI(A) In General 92k278.4(2) k. Eligibility and © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 039 http://web2.westlaw.com/prindprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 4 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) Appointment, Election, or Promotion. Most Cited Cases United States 393 C=11 393 United States 393I Government in General 393k7 Congress 393k11 k. Regulation of Elections of Senators and Representatives. Most Cited Cases Washington's ballot access statutes with term limits for United States House of Representatives and Senate violates qualifications clauses and First and Fourteenth Amendments, even if statutes are viewed as attempt to regulate electoral process; statutes would have practical effect of imposing new qualification of nonincumbency beyond specified periods, statutes seek to determine outcome, not procedures, and are not neutral or narrowly drawn. West's RCWA Init.Measure 573 prec. § 29.68.004; U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3, 4, cl. 1; Amends. 1, 14. [10] United States 393 C-11 393 United States 3931 Government in General 3930 Congress 393kll k. Regulation of Elections of Senators and Representatives. Most Cited Cases Voters' freedom to choose federal legislators must not be abridged by laws that make qualified persons ineligible to serve. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3. [11] United States 393 C=11 393 United States 393I Government in General 393k7 Congress 393k11 k. Regulation of Elections of Senators and Representatives. Most Cited Cases State may not diminish voters' constitutional freedom of choice by making would-be candidates for Congress ineligible on basis of incumbency or history of congressional service. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3, 4, cl. 1; Amends. 1, 14. [12] States 360 a18.71 Page 3 360 States 360I Political Status and Relations 360I(B) Federal Supremacy; Preemption 360kl8.71 k. Public Officers and Employees; Elections. Most Cited Cases United States 393 C;-11 393 United States 393I Government in General 3930 Congress 393k11 k. Regulation of EIections of Senators and Representatives. Most Cited Cases While Constitution bars states from imposing substantive restrictions on who may be elected to Congress, it permits reasonable state regulation of how elections are conducted. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3, 4, cl. 1. [13) United States 393 C-11 393 United States 393I Government in General 393k7 Congress 393k11 k. Regulation of Elections of Senators and Representatives. Most Cited Cases Measures lawfully adopted under constitutional provision permitting state regulation of times, places, and manner of elections for Senators and Representatives are designed to protect integrity and reliability of electoral process. U.S.C.A. Const. Art. 1, § 4, cl. 1. [14] States 360 0-4.16(1) 360 States 360I Political Status and Relations 360I(A) In General 360k4.16 Powers of United States and Infringement on State Powers 360k4.16(1) k. In General. Most Cited Cases Ninth and Tenth Amendments are restrictions upon federal power and are intended to provent interference with rights of states and their citizens. U.S.C.A. Const.Amends. 9,10. [151 States 360 C-4.4(3) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.eomlprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 5 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) 360 States 3601 Political Status and Relations 3601(A) In General 360k4.4 Powers Reserved to States 360k4.4(3) k. Other Particular Powers Most Cited Cases States 360 C;'4.16(i) 360 States 360I Political Status and Relations 360I(A) In General 360k4.16 Powers of United States and Infringement on State Powers 360M.16(1) k. In General. Most Cited Cases United States 393 C:-11 393 United States 393I Government in General 3930 Congress 393k11 k. Regulation of Elections of Senators and Representatives. Most Cited Cases Ninth and Tenth Amendments cannot be read to allow states to limit citizens' freedom of choice by adding qualifications for Congress, where qualifications clauses of Constitution preclude states from doing so. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3; Amends. 9, 10. [161 Civil Rights 78 (D;-1456 78 Civil Rights 78M Federal Remedies in General 78k1449 Injunction 78k1456 k. Other Particular Cases and Contexts. Most Cited Cases (Formerly 78k262.1) Declaratory Judgment 118A C�-124.1 I I8A Declaratory Judgment 118AII Subjects of Declaratory Relief 118AII(E) Statutes 118Akl24 Statutes Relating to Particular Subjects Cases 118Akl24.1 k. In General. Most Cited Page 4 Injunctive and declaratory relief under § 1983 were warranted as to Washington's unconstitutional ballot access statutes with term limits for United States House of Representatives and Senate, even though nothing was done to enforce statutes; state was prepared to enforce statutes if upheld, and threatened enforcement would deprive voters and congressional representative of constitutional rights. West's RCWA Init.Measure 573 prec. § 29.68.004; U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3; Amends. 1, 14; 42 U.S.C.A. § 1983. [171 Civil Rights 78 C;-1333(1) 78 Civil Rights 78111 Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue 78k1333 Injury and Causation 78k1333(1) k. In General. Most Cited Cases (Formerly 78k203) Threatened harm that has not yet occurred, but that will occur unless judicial relief is afforded, is enough to support civil rights claim. 42 U.S.C.A. § 1983. (181 Civil Rights 78 a1479 78 Civil Rights 78M Federal Remedies in General 78k1477 Attorney Fees 78k1479 k. Proceedings, Grounds, and Objections in General. Most Cited Cases (Formerly 78k293) Special circumstances would make award of attorney fees unjust in § 1983 challenge to constitutionality of Washington's ballot access statutes with term limits for members of United States Senate and House of Representatives; mere filing of suit by anyone with standing would have assured full court test, statutes were adopted by voter initiative, statutes were - not yet being enforced, state officials acted in good faith, case was one of first impression in federal court, and state officials could not have settled case by agreement. West's RCWA Init.Measure 573 prec. § 29.68.004; U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3; Amends. 1, 14; 42 U.S.C.A. §§ 1983, 1988. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1s http://web2.westlaw.comlpzinttprintstream.aspx?prft=HTU LE&destination=atp&sv=Split... 3/14/2007 Page 6 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite. as: 841 F.Supp. 1068) *1070 Glen K. Thorsted, Bellevue, WA, for Susan Thorsted, William First, Timothy S. Zenk. Fredric C. Tausend, Paul J. Lawrence, Stephen A. Smith, Preston, Thorgrimson, Shidler, Gates & Ellis, Seattle, WA, for Margaret Colony. Stephen A. Smith, Preston, Thorgrimson, Shidler, Gates & Ellis, Seattle, WA, for League of Women Voters of Washington, George Cheek, John Clute, Thomas Foley. John Maurice Groen, Pacific Legal Foundation, Bellevue, WA, Deborah J. La Fetra, Pacific Legal Foundation, Sacramento, CA, for Citizens for Term Limits. Jeffrey T. Even, Atty. General's Office, Olympia, WA, James Kendrick Pharris, Atty. General's Office, Olympia, WA, for Kenneth O. Eikenberry, State of Wash., Ralph Munro. Richard Andrew Derham, Davis Wright Tremaine, Seattle, WA, John G. Kester, Williams & Connolly, Washington, DC, for U.S. Term Limits, Alan M. Gottlieb, Lee Gill, Wilbur B. McPherson. Kevin J. Hamilton, Thomas More Kellenberg, Perkins Coie, Seattle, WA, for American Civ. Liberties Union of Washington (ACLU), amicus. David C. Stewart, Oles, Morrison & Rinker, Seattle, WA, for WA Legal Foundation, amicus. *1071 Richard Andrew Derham,Davis Wright Tremaine, Seattle, WA, for Taxpayers United for Term Limits, amicus, Ronald D. Rotunda, amicus. Herbert E. Wiigis, III, Preston, Thorgrimson, Shidler, Gates & Ellis, Seattle, WA, Lloyd N. Cutler , Wilmer, Cutler & Pickering, Washington, DC, for Henry J. Hyde, amicus. Wallace M. Rudolph, pro se. Shawn T. Newman, James Martin Johnson, Olympia, WA, Cleta Deatherage Mitchell, Washington, DC, Griffin B. Bell, King & Spalding, Atlanta, GA, Polly J. Price, King & Spalding, Washington, DC, for Limit (Sponsor of Initiative 573). Shawn T. Newman, James Martin Johnson, Olympia, WA, Cleta Deatherage Mitchell, Washington, DC, Griffin B. Bell, King & Spalding, Atlanta, GA, Polly J. Price, James D. MilIer, King & Spalding, Washington, DC, for Sherry Bochwinkel. Sherry Bochwinkel, pro se. ORDER ON DISPOSITIVE MOTIONS Page 5 DWYER, District Judge. I. INTRODUCTION These consolidated cases are of fundamental importance to the structure of representative government in the United States. At issue is the constitutionality of a state law designed to prevent incumbents who have served for a specified number of years from winning re-election to the United States Senate or House of Representatives. On November 3, 1992, the voters of the State of Washington approved Initiative Measure 573 by a margin of about fifty-two to forty-eight percent. (The measure failed, by a similar margin, in the state's Fifth Congressional District, represented by plaintiff Thomas Foley, who is Speaker of the House of Representatives.) Under Article 11, §§ 1 and l(a) of the Washington Constitution, Initiative 573 became law thirty days after its passage, and is now codified at Revised Code of Washington (" RCW ') Ch. 29. It provides in relevant part: See. 4. A new section is added to chapter 29.58 RCW to read as follows: No person is eligible to appear on the ballot or file a declaration of candidacy for the United States house of representatives who, by the end of the then current term of office will have served, or but for resignation would have served, as a member of the United States house of representatives during six of the previous twelve years. Sec. 5. A new section is added to chapter 29.68 RCW to read as follows: No person is eligible to appear on the ballot or file a declaration of candidacy for the United States senate who, by the end of the then current term of office will have served, or but for resignation would have served, as a member of the United States senate during twelve of the previous eighteen years. Other sections provide that the Washington Secretary of State shall not accept a declaration of candidacy from a person who "is ineligible for the office" under the Initiative, nor allow such person's name to appear on the ballot (Section 7); that one who is ineligible to appear on the ballot or file a declaration of candidacy may run a write-in m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C142 http://web2.westlaw.com/print/printstream. aspx?prft=HTNME&destination=atp&sv=SpIit... 3/14/2007 Page 7 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) campaign (Section 6); that no terms or years served in office before November 3, 1992, may be used to determine eligibility (Section 7); and that Sections 4 and 5, regarding candidates for federal legislative office, are not effective until at least nine other states have passed similar measures (Section 7). The latter condition has been met. The full text of Initiative 573 is set out in Appendix A to this order. Only the parts governing candidacies for the two houses of Congress are challenged here; no ruling on the provisions relating to State of Washington offices is sought or made. The plaintiffs, who are or represent registered voters in Washington, and one of whom is a member of the House of Representativ- lege that Initiative 573's restrictions on candwacies for Congress are invalid under Article I, §§ 2 and 3, of the United States Constitution, and under the First and *1072 Fourteenth Amendments. They seek a declaratory judgment and an order enjoining defendants Ralph Munro and Christine Gregoire, the Washington Secretary of State and Attorney General, from enforcing those provisions. Plaintiffs also seek relief for an alleged deprivation of their civil rights under 42 U.S.C. §§ 1983 and 1988. The two State officers • who are defendants, and the intervenor defendants (Sherry Bockwinkel, LIMIT, U.S. Term Limits, Alan M. Gottlieb, Lee Gill, Wilbur B. McPherson, and Citizens for Term Limits), seek judgment upholding the constitutionality of Initiative 573 and denying any relief to plaintiffs. A variety of amici curiae have filed briefs Pxt FNI. Amici curiae contending that Initiative 573 is unconstitutional are Rep. Henry J. Hyde (R-III.) and the American Civil Liberties Union of Washington Foundation. Arguing in favor of constitutionality are the Washington Legal Foundation; Taxpayers United for Term Limits; Citizens United Foundation; Ronald D. Rotunda; and Wallace M. Rudolph. Page 6 This court has jurisdiction under 28 U.S.C. § 1331. All parties have moved for summary judgment and/or for dismissal. The motions for dismissal are treated as summary judgment motions because matters outside the pleadings have been presented. Fed.R.Civ.P. 12(b)(6). There is no genuine issue of material fact for trial, and the case may be resolved on the motions under Fed.R.Civ.P. 56. The briefs of all parties and friends of the court have been fully considered, as have the arguments of counsel given in open court at a hearing held on January 11, 1994. II. ELEVENTH AMENDMENT [1] These actions are brought against the Washington Secretary of State and Attorney General, who are responsible for implernanting and enforcing Initiative 573. Although the Eleventh Amendment prohibits suits in federal court against a state without the state's consent, see Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), it does not bar actions to enjoin state officials from enforcing an unconstitutional law. Ex Pane Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); San Francisco County Democratic Central Comm. v. Eu, 826 F.2d 814, 824-25 (9th Cir.1987), of d, 489 U.S. 214, 109 S.Ct. 1013,103 L.Ed.2d 271 (1989) FN2 FN2. By a separate order entered today, an unopposed motion in the Thorsted case to dismiss that action as against the State of Washington, defendants Munro and Gregoire in their personal capacities, and the spouses of the two State officials named as defendants, is granted. The Colony plaintiffs have named only the Washington Secretary of State and Attorney General as defendants. III. STANDING AND RIPENESS The plaintiffs, supported by intervenor defendants Sherry 13ockwinkel and LIMIT, and by some of the amici curiae, contend that plaintiffs have standing to © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 043 http://web2.westlaw.comlprintlprintstream. aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 8 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) sue and that the constitutional challenge is ripe for decision. The State defendants, supported by intervenor defendant U.S. Term Limits and by some of the amici curiae, contend that standing is absent and the case is not justiciable, i.e., is not ripe for decision. A. Standing [2] There are eight plaintiffs. In the Colony case, Thomas Foley, who has represented the Fifth Congressional District of Washington in Congress since 1965, declares that he plans to continue serving if the voters re-elect him. Initiative 573, if valid, will bar him from the ballot in 1998. Margaret Colony, a registered voter in the State's Eighth Congressional District, claims injury to her right to vote for constitutionally qualified candidates of her choice. The League of Women Voters of Washington, a civic organization, asserts representational standing for its member -voters. George Check is a registered voter in the Fifth District who intends to vote for Congressman Foley. John Clute, dean of the Gonzaga University School of Law, is also a registered voter in the Fifth District. In the Thorsted case, plaintiffs Susan Thorsted, William First, and Timothy S. Zenk are registered voters in Washington. The plaintiffs allege injury to their rights as voters and/or as candidates, and to their rights of free association and political expression. Some assert standing based upon harm to public projects that are being supported*1073 by certain incumbents. The latter category need not be analyzed because plaintiff Foley's standing as a member of Congress who plans to seek re-election, and the other plaintiffs' standing as registered voters, are enough. The Supreme Court has listed three elements of standing to sue: the plaintiff must have suffered an " injury in fact" (an invasion of a legally -protected interest which is "concrete and particularized" and is "actual or imminent"); there must be a "causal connection" between the injury and the conduct complained of, and it must be "likely," and not merely "speculative," that the injury will be redressed by a favorable decision. Lujan v. Page 7 Defenders of Wildlife, 504 U.S. 555, ----, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). The Court in bija„ held that if "the plaintiff is himself an object of the [government] action ... at issue ... there is ordinarily little question that the action ... has caused him injury." Id. 504 U.S. at ---, 112 S.Ct. at 2137. Congressman Foley is clearly an "object" of Initiative 573; the measure, if enforced, will bar him from the ballot in the future. Like the plaintiffs in Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895 (1979). he has demonstrated a "realistic danger of sustaining a direct injury as a result of the [challenged] statute's operation or enforcement." [3] If one plaintiff has standing, it does not matter whether the others do. Bowsher v. Synar, 478 U.S. 714, 721, 106 S.Ct. 3181, 3185, 92 L.Ed.2d 583 (1986); Watt v. Energy Action Educ. Found, 454 U.S. 151, 160, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981); Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 264 n. 9, 97 S.Ct. 555, 563 n. 9, 50 L.Ed.2d 450 (1977). In this case, however, the voter plaintiffs have standing as well. The Supreme Court has held that Article I, Section 2 of the Constitution "gives persons qualified to vote a constitutional right to vote and to have their votes counted." Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 534, 11 L.Ed.2d 481 (1964). "No right," said the Court, is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right. Id., 376 U.S. at 17-18, 84 S.Ct. at 534-36. [4] It is true, as defendants point out, that a voter " does not have a fundamental right to vote for any particular candidate." Burdick v. Takushi, 927 F.2d 469, 473 (9th Cir.1991), affd, 504 U.S. 428, 112 © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. RM http://web2.westlaw.com/print/printstream. aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 9 of 23 841 F.Supp. 1068 841 F.Supp. 1068,62 USLW 2523 (Cite as: 841 F.Supp.1068) S.Ct. 2059, 119 L.Ed.2d 245 (1992). But each voter does have a right to choose among candidates placed on the ballot without unconstitutional exclusions or restrictions. The rights of voters and those of candidates are related and "do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. " Anderson v. Celebrezze, 460 U.S. 780, 786, 103 S.Ct. 1564, 1568, 75 L.Ed.2d 547 (1983), quoting Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972). In Anderson and Bullock, the Court allowed suits by voter plaintiffs or intervenors challenging state ballot access requirements. The Ninth Circuit, interpreting Anderson, has upheld voter standing to challenge a candidate eligibility requirement since "basic constitutional rights of voters as well as those of candidates" are implicated. Erum v. Cayetano, 881 F.2d 689, 691 (9th Cir.1989), citing Baker v. Carr, 369 U.S. 186, 206, 82 S.Ct. 691, 704, 7 L.Ed.2d 663 (1962). The Circuit has also upheld a voter's standing to challenge a state election law write-in provision. Burdick, 927 F.2d at 472. Initiative 573 would prevent the plaintiffs from casting their votes for any candidate barred from the ballot under its provisions except through a burdensome write-in procedure. The Supreme Court has held that a write-in opportunity "is not an adequate substitute for having the candidate's name appear on the printed ballot." Anderson, 460 U.S. at 799 n. 26, 103 S.Ct. at 1575 n. 26, *1074 citing Lubin v. Panish, 415 U.S. 709, 719 n. 5, 94 S.Ct. 1315, 1321 n. 5, 39 L.Ed.2d 702 (1974). This threatened injury is enough to confer standing; the plaintiffs are not required to wait until the injury has actually occurred. Babbitt, 442 U.S. at 298, 99 S.Ct. at 2308-09; Idaho Conservation League v. Mumma, 956 F.2d 1508, 1515 (9th Cir.1992). [5] The League of Women Voters of Washington has representational standing to sue for its voter -members. Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct, 2197, 2211, 45 L.M.2d 343 (1975); Hunt v. Washington State Apple Advertising Page 8 Comm'n, 432 U.S. 333, 342-43, 97 S.Ct. 2434, 2441-42, 53 L.Ed.2d 383 (1977). B.Ripeness [6][7] Under the doctrine of ripeness, federal courts refrain from deciding "abstract disagreements" that might never become real disputes. See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 3332-33, 87 L.Ed.2d 409 (1985). Ripeness is largely a question of timing, id., 473 U.S. at 580, 105 S.Ct. at 3332, and the court must look to "both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99,97 S.Ct. 980,51 L.Ed.2d 192 (1977). Fitness for judicial decision may be found where the plaintiffs have standing and the issue "is a purely legal one," as Nvitli construction of a statute. Id. See also Union Carbide, 473 U.S. at 581, 105 S.Ct. at 3333; Trustees for Alaska v. Hodel, 806 F.2d 1378, 1381 (9th Cir.1986); Helm v. California, 722 F.2d 507 (9th Cir.1983); Friedman Bros. Inv. Co. v. Lewis, 676 F.2d 1317, 1319 (9th Cir.1982). [8] The questions raised here are purely legal: whether a state may add qualifications for election to Congress beyond those listed in Article I, Sections 2 and 3; if not, whether Initiative 573 imposes further qualifications; and whether plaintiffs' rights under the First and Fourteenth Amendments are violated. The.record is complete. The constitutional issues will not disappear, and to postpone deciding them would accomplish nothing. See Union Carbide, 473 U.S. at 581, 105 S.Ct. at 2634; Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 81, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978); cf.. Renne v. Geary, 501 U.S. 312, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) (further opportunity for the state courts to interpret the statute might alter the question presented). As for hardship to the parties, the plaintiffs and © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 045 http://web2.westlaw.comlprinttprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 10 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) intervenor defendants Bockwinkel and LIMIT have shown that they would be substantially harmed by delay. In the face of uncertainty about whether Initiative 573 will stand, plaintiff Foley is unable to plan whether to run again beyond the 1996 election. Even if he decides to run, until this matter is resolved he cannot know {row to run -whether to wait until 1998 to campaign in the customary way, or to embark sooner on a long-range effort to overcome the ballot -exclusion barrier. The voter plaintiffs are deprived of information they need in deciding which candidates to support, when to begin supporting them, and by what methods. LIMIT, self -described as a temporary organization, is forced to try to prolong its existence and solvency for as long as necessary to defend its position. Ms. Bockwinkel is an organizer and leader of LIMIT. As an official sponsor of the initiative, LIMIT has a judicially -recognized interest in seeking to have it upheld. See RCW 29.79.010 and Yniquez v. Arizona, 939 F.2d 727, 733 (9th Cir.1991). The Supreme Court has described the importance of deciding a challenge to the constitutionality of an election law before it takes effect: Though waiting until [plaintiffs] invoke unsuccessfully the statutory election procedures would remove any doubt about the existence of concrete injury resulting from application of the election provision, little could be done to remedy the injury incurred in the particular election. Challengers to election procedures often have been left without a remedy in regard to the most immediate election because the *1075 election is too far underway or already consummated prior to judgment.... Justiciability in such cases depends not so much on the fact of past injury but on the prospect of its occurrence in an impending or future election. Babbitt, 442 U.S. at 300 n. 12, 99 S.Ct. at 2310 n. 12. See also Buckley v. 111hwis Judicial Inquiry Bd., 997 F.2d 224, 226 (7th Cir.1993); Signorelli v. Evans, 637 F.2d 853, 858 (2nd Cir.1980). To put off a court test of Initiative 573 until 1997 or 1998 would not only inflict uncertainty on the parties and the public, but would risk a failure to complete review by the Ninth Circuit, and perhaps Page 9 by the Supreme Court, before the ostensible winners of the 1998 election are sworn into office. See Joyner v. Mofford 706 F.2d 1523, 1527 (9th Cir.), cert. denied, 464 U.S. 1002, 104 S.Ct. 509, 78 L.Ed.2d 698 (1983). The case is ripe for adjudication, and the constitutional issues must be decided. IV. CONSTITUTIONALITY A. State Legislation and the Constitution The parties have expressed fervent beliefs for and against term limits for members of Congress. The proponents say that long-term incumbents become indifferent to the well-being of the people, preoccupied with re-election, aligned with special interest groups, hard to dislodge because they hold a great advantage in fund-raising, and resistant to any change that would level the playing field. The opponents say that there is in fact a large and steady turnover in congressional membership, voters should be free to re-elect good representatives, the way to end a political career is simply to defeat the incumbent at the polls, and term limits would weaken the national legislature. These arguments are important in a policy debate but cannot determine the legal issues. Whether congressional term limits are wise or foolish is not for the courts to decide. The nation could adopt them by amending the Constitution, as it did in limiting the President to two elected terms in the Twenty -Second Amendment, ratified in 1951. The question is whether a state may adopt them in the absence of a federal constitutional amendment. A state statute that violates the United States Constitution must be held invalid. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3 L.Ed. 162 (1810). In Washington the initiative process is a way "to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature..." Wash. Const., art. 11, § 1. An initiative is tested by the same constitutional standards as a bill adopted by the legislature. As the Supreme Court held in ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 046 http://web2.westlaw.comlprintlprintstream.aspx?prft=HTU LE&destination=atp&sv=Split... 3/14/2007 Page 11 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981) It is irrelevant that the voters rather than a legislative body enacted [the statute], because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation. Id., 454 U.S. at 295, 102 S.Ct. at 437.FN3 FN3. Several Washington initiatives have been declared unconstitutional by federal courts. See Continental Ill. Nat'l Bank v. State of Washington, 696 F.2d 692 (9th Cir.1983) (Initiative 394 regulating WPPSS financing held unconstitutional under Contract Clause); Washington State Building & Construction Trades Council V. Spellman, 518 F.Supp. 928 (E.D.Wash.1981), aFd, 684 F.2d 627 (9th Cir.1982) (Initiative 383 prohibiting shipment of nuclear waste to Washington held unconstitutional under Supremacy and Commerce Clauses); Seattle School Dist. No. I v. State of Washington, 473 F.Supp. 996 (W.D.Wash.1979), affd in part, rev'd in part, 633 F.2d 1338 (9th Cir.1980), affd, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982) (Initiative 350 limiting school busing held unconstitutional under Equal Protection Clause); Spokane Arcades, Inc. v. Ray, 449 F.Supp. 1145, 1158 (E.D.Wash.1978) (Initiative 335 dealing with obscenity held unconstitutional under First Amendment). B. The Qualifications Clauses (9] The first challenge to Initiative 573 is brought under the Qualifications Clauses. Article 1, Section 2 of the Constitution provides in part: No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall *1076 not, when elected, be an Inhabitant of that State in which he shall be chosen. Page 10 Article I, Section 3 provides in part:No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The defendants contend that these provisions Iist only the minimum qualifications for the House and Senate, and that a state may add to them. 1. The Powell Case The Supreme Court in Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), held that the Article I qualifications for election -age, citizenship, and residency -cannot be added to by Congress. Powell arose from an attempt by the House of Representatives to exclude a re-elected member from New York, found by a majority of his colleagues to have engaged in financial misconduct. The member sued, claiming that since he possessed the qualifications listed in Article I, Section 2, the House had no authority to deny him his seat. The Court agreed, holding that Congress is "without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution." Id., 395 U.S. at 522, 89 S.Ct. at 1964 (emphasis in original). Although Section 2 is phrased in the negative -"No Person shall...." -the Court found it equivalent to a positive list of qualifications. Id., 395 U.S. at 537-39, 89 S.Ct. at 1972-73. The narrow holding of Powell defined Congress's power under Article 1, Section 5, which provides that "f e]ach House shall be the Judge of the Elections, Returns, and Qualifications of its own members...:' But in reaching its result the Court marshaled the historical and legal precedents showing that neither Congress nor the states can add to the Article 1, Sections 2 and 3, qualifications. It referred to "the Framers' understanding that the © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C47 http://web2.westlaw.conVprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 12 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) qualifications for members of Congress had been fixed in the Constitution." Id., 395 U.S. at 540, 89 S.Ct. at 1973. It quoted, among other sources, Alexander Hamilton's reply to an antifederalist charge that the new Constitution would favor the wealthy: "The qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature." Id., 395 U.S. at 539, 89 S.Ct. at 1973, quoting The Federalist Papers 371 (Mentor ed. 1961) (emphasis omitted). The Court quoted, as well, James Madison's statement that, " '[t]he qualifications of the elected .. . have been very properly considered and regulated by the [constitutional] convention.' " Id., 395 U.S. at 540 n. 74, 89 S.Ct. at 1973, quoting The Federalist Papers 326 (Mentor ed. 1961). And the Court quoted an 1807 report by the House Committee of Elections recommending that a member be seated despite his failure to meet additional state -imposed residency requirements: "The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein determined, without reserving any authority to the State Legislatures to change, add to, or diminish those qualifications; ...... Id., 395 U.S. at 542, 89 S.Ct. at 1975, quoting 17 Annals of Cong. 871 (1807). The Powell Court concluded that "in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution" Id, 395 U.S. at 550, 89 S.Ct. at 1979 2. Pre- and Post -Powell Decisions Under the Qualifications Clauses For many years, before and after Powell, courts have held that the states, like Congress, are without power to add substantive requirements for election Page 11 to Congress to those set forth in the Qualifications Clauses. In Joyner v. Mofford, 706 F.2d at 1528, the Ninth Circuit stated: *1077 From the beginning of the Republic, commentators have asserted that the three qualifications contained in the Clause -age, citizenship, and residency -are exclusive, and that neither Congress nor the states may require more of a candidate. See, e.g., 1 J. Story, Commentaries on the Constitution 453-63 (5th ed. 1891). In Powell v McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), the Supreme Court accepted this restrictive view of the Qualifications Clause -at least as applied to Congress -and held that members of Congress may not set extra -constitutional qualifications for taking a seat in the House of Representatives. In addition, as the district court observed in the present case, the same principle has frequently been applied to state laws imposing additional qualifications on candidates for federal office. [Joyner v. Mofford] 539 F.Supp. [1120] at 1121-22 & n. 1 [ (D.C.Ariz.1982) ]. See also Public Citizen, Inc. v. Miller, 813 F.Supp. 821, 831 (N.D.Ga.) ("Although Powell did not address states' power to add qualifications for membership in the House of Representatives, courts agree that states are similarly denied the power to act in this area") (emphasis in original), affd rnem., 992 F.2d 1548 (11th Cir.1993); United States v. Richmond 550 F.Supp. 605, 607 (E.D.N.Y.1982) (" the states are barred from imposing additional qualifications on congressional candidates"); Dillon v. Fiorina, 340 F.Supp. 729, 731 (D.N.M.1972) ("That a state cannot add to or take away from these [Article 1] qualifications is well settled," invalidating two-year district residency requirement); Exon v. Tietnann, 279 F.Supp. 609, 613 (D.Neb.1968) ("There being no such requirement in the Constitution itself, a state cannot require that a Representative live in the District from which he was nominated'. Among the many state court decisions reaching the same conclusion are State ex rel. Chandler v. Howell, 104 Wash. 99, 175 P. 569, 570 (1918) ("So long as a candidate for membership in Congress meets the requirements set forth in the constitution which created the office, no state has the right or m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintfprintstrea n.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 13 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: $41 F.Supp. 1068) authority to prevent his candidacy, either by provisions in its constitution or in its statutes"); Application of Ferguson, 57 Misc.2d 1041, 294 N.Y.S.2d 174 (N.Y.Sup.Ct.), affd, 30 A.D.2d 982, 294 N.Y.S.2d 989 (1968) (disqualification of candidate convicted of a felony held invalid); Shub v. Simpson, 196 Md. 177, 76 A.2d 332 (anti -subversion declaration requirement held unconstitutional), appeal dismissed, 340 U.S. 881, 71 S.Ct. 198, 95 L.Ed. 640 (1950); Strong v. Breaux, 612 So.2d 111, 112 (La.App.1992) ("The qualifications prescribed by [Article I, Section 3] are exclusive and neither a state constitution nor state law can add to nor take away from such qualifications").17N4 FN4. The Washington legislature appears to have recognized that the state cannot add qualifications for Congress to those set forth in Article I. RCW 29.15.025 requires that "[t]he name of a candidate for an office shall not appear on a ballot for that office unless the candidate is ... properly registered to vote in the geographic area represented by the office," but adds: "This section does not apply to the office of a member of the United States Congress." Thus, while the declaration of candidacy form includes a "place for the candidate to declare that he or she is a registered voter within the jurisdiction of the office for which he or she is filing," RCW 29.15.010(l), such a declaration need not be made by a candidate for Congress. 3. The Constitutional Freedom to Choose Governmental Representatives The cases holding that neither the states nor Congress may add to the Article I qualifications for service in Congress all rest on the same foundation: the constitutional right of voters in the United States to elect legislators of their choice. The Powell Court said: A fundamental principle of our representative democracy is, in Hamilton's words, "that the people should choose whom they please to govern them." Page 12 2 Elliot's Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself. 395 U.S. at 547, 89 S.Ct. at 1977. The Court in Powell repeatedly mentioned this basic freedom: "That the right of the electors to be represented by men of their own choice, was so essential for the preservation of all their other rights, that it ought to be considered*1078 as one of the most sacred parts of our [English] constitution" 395 U.S. at 534 n. 65, 89 S.Ct. at 1970 n. 65, quoting 16 Parl.Hist.Eng. 589-90 (1769)."Under these reasonable limitations [of Article I], the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession or religious faith" Id., 395 U.S. at 540 n. 74, 89 S.Ct. at 1526 n. 74, quoting Madison, The Federalist Papers 326 (Mentor ed. 1961)."[T]he true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed." Id., 395 U.S. at 540-41, 89 S.Ct. at 1973-75, quoting Hamilton, 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876) (hereinafter cited as " Elliot's Debates")."It has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no qualifications required except those of age and residence, which create a certainty of their judgment being matured, and of being attached to their state." Id., 395 U.S. at 541, 89 S.Ct. at 1974, quoting Wilson Carey Nicholas, 3 Elliot's Debates 8. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 049 http://web2.westlaw.conVprintlprintstream.aspx?prft=HTU LE&destination=atp&sv=Split... 3/14/2007 Page 14 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) [10] As Powell, Joyner, and the other authorities cited above make clear, the voters' freedom to choose federal legislators must not be abridged by laws that make qualified persons ineligible to serve. 4. Term Limit Laws and Freedom of Choice If adopted as a complete bar to re-election, a term limits law would exclude a category of candidates qualified under Article 1: those who have served for a certain time. It would allow a bare majority of those voting in a current year to prevent, say, eighty percent in a later year from electing a candidate of their choice.FNs FNS. These figures are not entirely hypothetical. The late Henry M. Jackson of Washington, who served twelve years in the House and thirty in the Senate before dying in office in 1983, won re-election with an eighty-two percent statewide majority in 1970, and often won more than two-thirds of the vote. See Official Abstract of Votes, State of Washington. Tenn limits for members of Congress, like the property -ownership qualification which many urged at the time, were considered by the Framers of the Constitution. A number of states had imposed term limits on members of their legislatures. Under the Articles of Confederation, delegates to Congress could not serve "for more than three years in any term of six years; ...:. Art. Conf. V (1777). The phrase "rotation in office" was current then as it is now. By 1787 these efforts were widely seen as a failed experiment. FN6 On June 12, 1787, the Constitutional Convention voted unanimously to reject congressional term limits. See 1 Max Farrand, The Records of the Federal Convention of 1787 (1937) 217; Supplement to Max Farrand's The Records of the Federal Convention of 1787 (James H. Hutson ed.,1987) 71. FN6. See Gordon S. Wood, The Creation of the American Republic, 1776-1787 (1969) at 140-41, 398-99, 436-38, 477. Page 13 In adopting a short but comprehensive list of qualifications for Congress -age, citizenship, and residency -the Framers protected the "indisputable right [of the people] to return whom they thought proper" to the legislature. Powell, 395 U.S. at 535, 89 S.Ct. at 1971, quoting 16 Parl.Hist.Eng. 589. [11] In a political climate different from today's, a state's voters -or its legislature -might believe that age brings wisdom, government experience brings knowledge, and long-term incumbency brings power in the nation's capital. The state might therefore adopt an experience requirement: only those presently serving in Congress, or with at least two years of service in Congress or in the state legislature, would be eligible for *1079 election to the federal House or Senate. This method of " going through the chairs" could be presented as thoroughly democratic, since anyone could run for the state legislature. But to bar those without legislative experience from serving in Congress would be plainly unconstitutional under Article I, Sections 2 and 3. And just as experience in government cannot be added as a qualification, neither can inexperience. A state may not diminish its voters' constitutional freedom of choice by making would-be candidates for Congress ineligible on the basis of incumbency or history of congressional service.FN7 FN7. See, for a variety of views, the law review articles listed in Appendix B to this order. See also Stumpf v. Lau, 108 Nev. 826, 839 P.2d 120, 123 (1992) ("The [Nevada] term limits initiative clearly and ` palpably' violates the qualifications clauses of Article I of the United States Constitution"). Such holdings under Article I, Sections 2 and 3, of course, relate to the federal legislature. Term limits applicable to state offices are tested not under Article I but under state constitutional law and under the First and Fourteenth Amendments to the United States Constitution. See, e.g., Miyazawa v City of Cincinnati, 825 F.Supp. 816 (S.D.Ohio 1993); Legislature v. Eu, 54 Ca1.3d 492, 286 Cal.Rptr. 293, 816 P.2d © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 050 http://web2.westlaw.comlprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 15 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) 1309 (1991), cert. denied, 503 U.S. 919, 112 S.Ct. 1292, 117 L.Ed.2d 516 (1992). 5. Initiative 573 and the Qualifications Clauses [121 While the Constitution bars the states from imposing substantive restrictions on who may be elected to Congress, it permits reasonable state regulation of how elections are conducted. Article 1, Section 4, provides in part: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.... It is argued that Initiative 573 is not a term limits law but a ballot access measure, and as such is constitutional under Section 4. The Initiative does not impose a total ban on re-election. While barring the targeted incumbents from the ballot in order to cause their defeat (or their decision not to run), it leaves open a pinhole of opportunity: a barred incumbent may run a write-in campaign. The Washington election code provides that a candidate who desires to have his or her name printed on the ballot for Congress must file a declaration of candidacy. RCW 29.15.010. One who seeks to be a write-in candidate may file a declaration of candidacy not later than the day before the election. RCW 29.04.180. If such a declaration has been filed, voters may write in the candidate's name at the appropriate place on the ballot; absent a filed declaration, one voting for a candidate not on the ballot "must designate the office sought and position number or political party, if applicable." Id. Whether a vote will be counted turns on the Canvassing Board's ability to discern the voter's intent. RCW 29.51.170. Initiative 573 makes incumbents with the specified length of service "ineligible to appear on the ballot or file a declaration of candidacy" Appendix A, Sections 4, 5, and 7. The measure will thus keep barred incumbents off the ballot no matter what they do. Page 14 If this restriction is a state -imposed qualification for congressional office, it must be held invalid under Article I, Sections 2 and 3. If it does not impose a new qualification, then its constitutionality as a ballot access measure is tested by different standards. The Supreme Court has recognized that "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974). It has, accordingly, " upheld generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself." Anderson v. Celebrezze, 460 U.S. 780, 788 n. 9, 103 S.Ct. 1564, 1569 n. 9, 75 L.Ed.2d 547 (1982). Among the cases upholding state ballot access Iaws on this basis are Storer, 415 U.S. at 733, 94 S.Ct. at 1280 (law denying ballot position to independent candidates who had a registered affiliation with a political party within one year prior held " expressive of a *1080 general state policy aimed at maintaining the integrity of the various routes to the ballot" and to involve "no discrimination against independents"; American Party v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974) (petition requirement for independents and minor parties); Hopfmann v. Connolly, 746 F.2d 97 (1st Cir.1984), vacated in part on other grounds, 471 U.S. 459, 105 S.Ct. 2106, 85 L.Ed.2d 469 (1985) (party requirement that candidates receive fifteen percent of the vote at the convention in order to be included on the ballot in the state primary election); Public Citizen, Inc. v. Miller, 813 F.Supp. 821 (N.D.Ga.) (law requiring a run-off election for Congress), affd per curiam, 992 F.2d 1548 (llth Cir.1993); Williams v Tucker, 382 F.Supp. 381 (M.D.Pa.1974) (statute preventing candidate from contemporaneously filing nomination papers and running in primary); Clark v. Rose, 379 F.Supp. 73 (S.D.N.Y.1974) (statute requiring authorization of parry's state committee for non-member of party to run in its primary), affd, 531 F.2d 56 (2nd Cir.1976) ; Fowler v. Adams, 315 F.Supp. 592 (M.D.Fla.1970) (statute requiring candidates to pay © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. CII http://web2.westlaw.com/printlprintstream. aspx?prft=HTULE&destination=atp&sv=Split... 3/14/2007 Page 16 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) a filing fee), appeal dismissed, 400 U.S. 986, 91 S.Ct, 477, 27 L.Ed.2d 436 (1971). But the law recognizes that fundamental rights under the First and Fourteenth Amendments are affected by ballot access measures. In Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1969), the Supreme Court struck down a state statute that imposed onerous petition requirements on small parties seeking ballot access, and stated: In the present situation the state laws place burdens on two different, although overlapping, kinds of rights -the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. It "is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the `liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech." NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958). A law that excludes candidates from the ballot "burdens voters' freedom of association, because an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying point for like-minded citizens" Anderson, 460 U.S. at 787-88, 103 S.Ct. at 1569-70 . As for candidates' rights, although reasonable regulations may be imposed, "[tlhe right of a party or an individual to a place on a ballot is entitled to protection and is intertwined with the rights of voters." Lubin, 415 U.S. at 716, 94 S.Ct. at 1320. The inquiry is "whether the challenged restriction unfairly or unnecessarily burdens the 'availability of political opportunity.' " Anderson, 460 U.S. at 793, 103 S.Ct. at 1572, quoting Clements v. Fashing, 457 U.S. 957, 964, 102 S.Ct. 2836, 2844, 73 L.Ed.2d 508 (1982), and Lubin, 415 U.S. at 716, 94 S.Ct. at 1320. On this basis, unduly restrictive ballot measures have been held unconstitutional as violating the First and Fourteenth Amendment rights of voters and candidates. See, e.g., Page 15 Anderson, supra (early filing requirement for independent candidates for President; without comparable requirement for party candidates); Norman v. Reed, 502 U.S. 279, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992) (requirement that more signatures be obtained to appear on local ballot than were required to appear on statewide ballot); Tashjian v. Republic Party, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986) (requirement that party hold primary open only to its members); Lubin, supra (excessive filing fees). The state election laws that have been upheld have been general ground rules designed to make elections "fair and honest" and to impose "some sort of order, rather than chaos" on the electoral process, see Burdick v. Takushi, 504 U.S. 428, ----, 112 S.Ct. 2059, 2063, 119 L.Ed.2d 245 (1992), or to prevent "voter confusion, ballot over -crowding, or the presence of frivolous candidacies," Munro v. Socialist Workers Party, 479 U.S. 189, 194-95, 107 S.Ct. 533, 537-38, 93 L.Ed.2d 499 (1986). *1081 All such laws have been open to compliance by candidates who take the necessary steps, or make the required showing, in the election process itself. Initiative 573, in contrast, is aimed not at achieving order and fairness in the process but at preventing a disfavored group of candidates from being elected at all. The Initiative plainly states its purpose: to get rid of "entrenched incumbents." It aims to prevent "the self-perpetuating monopoly of elective office by a dynastic ruling class." Appendix A, section 1(7). It refers to ballot -barred persons as " ineligible for the office." Id., section 7(2). The statement for it in the "1992 Voters Pamphlet" published by the Secretary of State repeatedly describes it as a "term limits" measure. See Exhibit B to State Defendants' Memorandum in Support of Summary Judgment. It is codified at several places in RCW Ch. 29 under the heading " Initiative Measure 573-Term Limits." Denial of ballot access ordinarily means unelectability. The State concedes that no one in its history has been elected to Congress by a write-in vote. The record shows that in the country as a whole only three candidates for the House have © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 052 http://web2.westlaw.com/print/printstream. aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 17 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) been elected by write-in votes since 1958, and only one candidate for the Senate has been elected by that method since 1954. The Initiative would thus have the practical effect of imposing a new qualification: non -incumbency beyond the specified periods. The intended and probable result would be the same as if the State were to adopt non -incumbency as an absolute requirement. A state may not do indirectly what the Constitution forbids it to do directly. Frost & Frost Trucking Co. v. Railroad Cor m'n of California, 271 U.S. 583, 593-94, 46 S.Ct. 605, 607, 70 L.Ed. 1101 (1926). The challenged parts of Initiative 573 must therefore be held to impose additional qualifications for Congress in violation of Article 1, Sections 2 and 3. 6. The Resign -to -Run Cases The resign -to -run cases, cited by both sides, do not suggest that Initiative 573 is constitutional. Those cases arise from laws that require public officials to resign from a state post before running for an elected federal position, or that treat a declaration of candidacy for Congress as an automatic resignation from state office. Some courts have held such provisions unconstitutional as imposing additional qualifications. See State ex rel. Chandler v. Howell, 104 Wash. 99, 175 P. 569, 570 (1918); State ex rel. Wettengel v. Zimmerman, 249 Wis. 237, 24 N.W.2d 504 (1946); Stack v. Adams, 315 F.Supp. 1295 (N.D.Fla.1970). Others have upheld them as valid exercises of a state's power to regulate the conduct of its own officeholders. See Signorelli v. Evans, 637 F.2d 853 (2nd Cir.1980); Adams v. Supreme Court of Pa., 502 F.Supp. 1282 (M.D.Pa.1980); Oklahoma State Election Board v. Coats, 610 P.2d 776 (Okla.1980); Alex v. County of Los Angeles, 35 Cal.App.3d 994, 111 Cal.Rptr. 285 (1973). The Ninth Circuit, reviewing an Arizona constitutional provision that required certain officials to resign as a condition of running for Congress in the final year of their state terms, explained these holdings as follows: The courts considering challenges to state laws relying on the Qualifications Clause have distinguished between state provisions which bar a Page 16 potential candidate from running for federal office, and those which merely regulate the conduct of state officeholders. The former category of laws imposes additional qualifications on candidates and therefore violates the Qualifications Clause, while the latter category is constitutionally acceptable since it merely bars state officeholders from remaining in their positions should they choose to run for federal office. Joyner v. Mofford, 706 F.2d at 1528. Finding that the Arizona provision "regulates the conduct of state officials" and "merely requires that they not occupy a state office while seeking either a federal or state elective office," the court upheld it as constitutional. Id. at 1531, 1533. The resign -to -run cases turn on a state's power to regulate its own officials' conduct. That factor is not present here. There is no constitutional basis for a state to require non -service, or limited prior service, in Congress*1082 as a condition of election to the House or Senate. C. Alternative Ruling Under Article I, Section 4 [13] Even if viewed as an attempt to regulate the electoral process, the federal -office sections of the Initiative would have to be held invalid. Measures lawfully adopted under Article 1, Section 4, are designed to "protect the integrity and reliability of the electoral process." Anderson, 460 U.S. at 788 n. 9, 103 S.Ct. at 1569 n. 9. Ballot -access restrictions "implicate[ ] basic constitutional rights." Id., 460 U.S. at 786, 103 S.Ct. at 1568. The court must weigh the "character and magnitude of the asserted injury to the right protected by the First and Fourteenth Amendments" and "the precise interests put forward by the State as justifications for the burdens imposed by its rule." Id, 460 U.S. at 789, 103 S.Ct. at 1570. Any "severe restrictions" designed to assure an honest and orderly electoral process must be "narrowly drawn to advance a state interest of compelling importance," Norman v. Reed, 502 U.S. 279, ---, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992), and must be "reasonable [and] non-discriminatory," Burdick, 504 U.S. at ---- - ----, ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. (153 http://web2.westlaw.com/printlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 18 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) 112 S.Ct. at 2063-64. "[W]e have repeatedly upheld," said the Burdick Court, "reasonable, politically neutral regulations that have the effect of channeling expressive activity at the polls." 504 U.S. at--, 112 S.CL at 2066. Sections 4 and 5 of Initiative 573 are neither neutral, nor nondiscriminatory, nor narrowly drawn. They seek to determine the outcome, not the procedures. The state interest claimed is to prevent congressional incumbents from winning; but the Constitution places that decision with the voters in each election, not with a state government. The extent to which a state might try to even a congressional race through neutral measures (such as providing forums or financing for all candidates) is outside the scope of this case. Initiative 573 is not such a measure. Instead, it hobbles a few runners to make sure they lose. A state may not constitutionally do that, just as it may not bar qualified runners from the track. D. The Ninth and Tenth Amendments It is argued that, notwithstanding Article I, Sections 2 and 3, the Ninth and Tenth Amendments reserve to the states the power to limit congressional terms. The Ninth Amendment provides: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The Tenth Amendment provides.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. [141 These two amendments are "restrictions upon federal power, intended to prevent interference with the rights of the States and of their citizens." Fox v. Ohio, 46 U.S. (5 How.) 410, 434, 12 L.Ed. 213 (1847). Their very wording shows their inapplicability. The Ninth Amendment assures rights to the people beyond those specifically listed but implies no right to alter the governmental structure established by the Constitution. The Page 17 Tenth Amendment concerns powers "not delegated to the United States by the Constitution"; it implies no state power to abridge what is delegated to the United States. Justice Story in his Commentaries spoke to whether the Tenth Amendment reserved any power to the states to add qualifications for Congress: [N]o powers could be reserved to the States, except those which existed in the States before the Constitution was adopted. The [tenth] amendment does not profess, and, indeed, did not intend to confer on the States any new powers, but merely to reserve to them what were not conceded to the government of the Union.... [W]here did the States get the power to appoint representatives in the national government? Was it a power, that existed at all before the Constitution was adopted? ... The truth is, that the States can exercise no powers whatsoever which exclusively spring out of the existence of the national government, which the Constitution does *1083 not delegate to them. They have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a President. Each is an officer of the Union, deriving his powers and qualifications from the Constitution.... It is no original prerogative of State power to appoint a representative, a senator, or President for the Union. Those officers owe their existence and functions to the united voice of the whole, not of a portion of the people.... No State can say that it has reserved what it never possessed. 2 J. Story, Commentaries on the Constitution of the United States §§ 626-27 (5th ed. 1891). The case of Gregory v. Ashcroft; 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), relied upon by term limits proponents, concerned a state's power to set qualifications for state, not federal, office, and is not in point. [15] The Ninth and Tenth Amendments cannot be read to allow the states to limit their citizens' freedom of choice by adding qualifications for Congress, while Sections 2 and 3 of Article I preclude them from doing so. ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 054 http://web2.westlaw.comlprintlprintstream.aspx?prft=HTU LE&destination=atp&sv=Split... 3/14/2007 Page 19 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) V. SECTION 1983 CLAIMS [16] The plaintiffs also seek declaratory and injunctive relief under a federal civil rights law, 42 U.S.C. § 1983, and an award of attorney fees under 42 U.S.C. § 1988. Since, for the reasons given above, declaratory and injunctive relief must be awarded on plaintiffs' constitutional claims -and would thus be ordered whether or not any civil rights claims were asserted -the only practical importance of the latter is the application for attorney fees. Section 1983 provides: Every person who, under color of any statute ... of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Civil rights cases typically involve acts committed by state officials with resulting harm to the plaintiffs. The defendants Munro and Gregoire, the Washington Secretary of State and Attorney General, point out that they have done nothing yet to enforce Initiative 573. They argue that they have not subjected plaintiffs "to the deprivation of any rights," and that accordingly there is no liability under Section 1983. [17) The difficulty with this argument is that the Supreme Court has mandated that Section 1983 be " `broadly construed, against all forms of official violation of federally protected rights.' " Dennis v. Higgins, 498 U.S. 439, 444, 111 S.Ct. 865, 869, 112 L.Ed.2d 969 (1991), quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 700-701, 98 S.Ct. 2018, 2040-41, 56 L.Ed.2d 611 (1978). Threatened harm that has not yet occurred, but that will occur unless judicial relief is afforded, is enough to support a civil rights claim. See, e.g., Wright v. Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 431-32, 107 S.Ct. 766, 774-75, 93 L.Ed.2d 781 (1987). Injunctive and declaratory relief are proper under Section 1983, which authorizes, among other procedures, a "suit Page 18 in equity." See, e.g., Fraser v Bethel School Dist., 755 F.2d 1356 (9th Cir.1985), rev'd on other grounds, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986). The State defendants are prepared to enforce Initiative 573 if it is upheld, and have defended its constitutionality in this case. Since the threatened enforcement would deprive plaintiffs of constitutional rights, entitlement to injunctive and declaratory relief under Section 1983 has been shown. See Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972); see also Baer v. Meyer, 728 F.2d 471, 474-76 (10th Cir.1984); McCarthy v. Askew, 420 F.Supp. 775, 777-79 (S.D.Fla.), afJ"d, 540 F.2d 1254 (5th Cir.1976); Sotomura v. County of Hawaii, 402 F.Supp. 95, 102-103 (D.Haw.1975). It does not follow, however, that attorney fees must automatically be awarded. Section 1988 provides that the court, in its discretion, may allow the prevailing party [in a Section 1983 case], *1084 other than the United States, a reasonable attorney's fee as part of the costs. While a prevailing plaintiff " `should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust,' " Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1936, 76 L.Ed.2d 40 (1983), quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968), a degree of discretion remains. Section 1988 should not be applied "woodenly without consideration of the underlying factors which generated it." Buxton v. Patel, 595 F.2d 1182, 1184 (9th Cir.1979), quoting Zarcone v. Perry, 581 F.2d 1039,1044 (2nd Cir.1978). [18] The special circumstances here would make an award of fees unjust. The record shows the following, which the court now finds as facts: FNs FN8. The Ninth Circuit requires findings of fact and conclusions of law if fees are denied under Section 1988. Sethy v. Alameda County Water District, 602 F.2d © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C55 http://web2.westlaw.comlprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 20 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) 894, 897 (9th Cir.1979). The facts found here are clearly shown in the record and no further hearing is required. The burden of showing special circumstances, see Herrington v. County of Sonora, 883 F.2d 739, 744 (9th Cir.1989), has been sustained. 1. No award is needed to serve the purpose of Section 1988, which is to assure "effective access to the judicial process." Hensley, 461 U.S. at 429, 103 S.Ct. at 1937. This is not a typical civil rights case. The mere filing of suit by anyone with standing would have assured a full court test. See the briefs amicus curiae, which demonstrate this. 2. No relief has been won under the Section 1983 claims beyond that already awarded under the constitutional claims. 3. The legislation that prompted the suit was adopted by a voters' initiative, not by State officials. The deterrence purpose of Section 1983, see Wyatt v. Cole, 504 U.S. 158, ----, 112 S.Ct. 1827, 1830, 118 L.Ed.2d 504 (1992), is inapplicable. 4. The defendant officials have not yet enforced Initiative 573. Their willingness to do so if it is upheld reflects only the minimum their oaths of office require. Cf.. May v. Cooperman, 578 F.Supp. 1308 (D.N.J.1984) (denying attorney fees as against state officials who took no action to enforce an unconstitutional statute, but granting them against state legislators who intervened). 5. The State officials have acted in good faith. " The Ninth Circuit has ruled that a defendant's good faith is one factor of several that a court may consider in applying the Attorney's Fees Act." Teitelbaum v. Sorenson, 648 F.2d 1248, 1250 (9th Cir.1981). 6. This is a case of first impression in federal court, and the public interest requires that it be adjudicated through a full adversary process. The State defendants have done nothing to increase the litigation costs beyond what would have been necessary in any event. Page 19 7. There was no way for the State officials to settle the case by agreement. Even if a stipulation of unconstitutionality had been entered (a most unlikely event), the court would have rejected it. State legislation is presumed constitutional until the contrary is shown. Clements v. Fashing, 457 U.S. at 963-64, 102 S.Ct. at 2843-44. On the basis of the foregoing findings, the court now makes and enters the following conclusions of law: 1. Within the meaning of Hensley, supra, special circumstances exist in this case which would make an award of attorney fees "manifestly unfair." See Cunningham v. County of Los Angeles, 869 F.2d 427, 436-37 (9th Cir.1988); Aho v. Clark, 608 F.2d 365, 367 (9th Cir.1979). 2. Cases holding that particular mitigation factors are insufficient to avoid a fee award (e.g., Teitelbaum, supra, and Wilson: v. Stocker, 819 F.2d 943, 951 (loth Cir.1987)), are distinguishable. None involved the totality of circumstances present here. 3. Accordingly, plaintiffs' applications for attorney fees under 42 U.S.C. § 1988 should be denied. VI. CONCLUSION For the reasons stated, the motions for summary judgment are granted and denied as follows: The plaintiffs have standing to *1085 sue and these cases are ripe for decision. Plaintiffs are entitled to judgment declaring that sections 4 and 5 of Washington Initiative Measure 573, denying ballot access to certain candidates for the United States Senate and House of Representatives, are invalid under Article I, Sections 2 and 3, of the United States Constitution, and under the First and Fourteenth Amendments, and enjoining the State defendants from implementing or enforcing those sections and section 7 insofar as it incorporates them. Plaintiffs are entitled to the same relief under the provisions of 42 U.S.C. § 1983. Because special circumstances exist that would make an award unjust, plaintiffs' applications for attorney O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 056 http://web2.westlaw.comlprintlprintstream.aspx?prft=E TU LE&destination=atp&sv=Split... 3/14/2007 Page 21 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) fees under 42 U.S.C. § 1988 are denied. Judgment will be entered accordingly. APPENDIX A COMPLETE TEXT OF INITIATIVE MEASURE 573 AN ACT Relating to ballot access for elected officials; adding a new section to chapter 43.01 RCW; adding a new section to chapter 44.04 RCW; adding new sections to chapter 29.68 RCW; adding a new section to chapter 29.51 RCW; adding a new section to chapter 29.15 RCW; adding a new section to chapter 7.16 RCW; and creating a new section. BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON: NEW SECTION. Sec. 1. The people of the state of Washington find that: (1) The people will best be served by citizen legislators who are subject to a reasonable degree of rotation in office; (2) Entrenched incumbents have become indifferent to the conditions and concerns of the people; (3) Entrenched incumbents have an inordinate advantage in elections because of their control of campaign finance laws and gerrymandering of electoral districts; (4) Entrenched incumbency has discouraged qualified citizens from seeking public office; (5) Entrenched incumbents have become preoccupied with their own reelection and devote more effort to campaigning than to making legislative decisions for the benefit of the people; (6) Entrenched incumbents have become closely aligned with special interest groups who provide contributions and support for their reelection campaigns, give entrenched incumbents special Page 20 favors, and lobby office holders for special interest legislation to the detriment of the people of this state, and may create corruption or the appearance of corruption of the legislative system; (7) The people of Washington have a compelling interest in preventing the self-perpetuating monopoly of elective office by a dynastic ruling class. The people of the state of Washington therefore adopt this act to limit ballot access of candidates for state and federal elections. NEW SECTION. Sec. 2. A new section is added to chapter 43.01 RCW to read as follows: (1) No person is eligible to appear on the ballot or file a declaration of candidacy for governor who, by the end of the then current term of office will have served, or but for resignation would have served, as governor during eight of the previous fourteen years. (2) No person is eligible to appear on the ballot or file a declaration of candidacy for Iieutenant governor who, by the end of the then current term of office will have served, or but for resignation would have served, as lieutenant governor during eight of the previous fourteen years. NEW SECTION. Sec. 3. A new section is added to chapter 44.04 RCW to read as follows: (1) No person is eligible to appear on the ballot or file a declaration of candidacy for the house of representatives of the legislature who, by the end of the then current tern of office will have served, or but for resignation would have served, as a member of the house of representatives of the legislature during six of the previous twelve years. (2) No person is eligible to appear on the ballot or file a declaration of candidacy for the senate of the legislature who, by the end *1086 of the then current term of office will have served, or but for resignation would have served, as a member of the senate of the Iegislature during eight of the previous fourteen years. OO 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 057 http://web2. westlaw.comlprintlprintstream. aspx?prft=HTMLE&destination=atp&sv=Split... 3/ 14/2007 Page 22 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp- 1068) (3) No person is eligible to appear on the ballot or file a declaration of candidacy for the Iegislature who has served as a member of the legislature for fourteen of the previous twenty years. NEW SECTION. Sec. 4. A new section is added to chapter 29.68 RCW to read as follows: No person is eligible to appear on the ballot or file a declaration of candidacy for the United States house of representatives who, by the end of the then current term of office will have served, or but for resignation would have served, as a member of the United States house of representatives during six of the previous twelve years. NEW SECTION. Sec. 5. A new section is added to chapter 29.68 RCW to read as follows: No person is eligible to appear on the ballot or file a declaration of candidacy for the United States senate who, by the end of the then current term of office will have served, or but for resignation would have served, as a member of the United States senate during twelve of the previous eighteen years. NEW SECTION. Sec. 6. A new section is added to chapter 29.51 RCW to read as follows: Nothing in sections 2 through 5 of this act prohibits a qualified voter of this state from casting a ballot for any person by writing the name of that person on the ballot in accordance with RCW 29.51.170 or from having such a ballot counted or tabulated, nor does anything in sections 2 through 5 of this act prohibit a person from standing or campaigning for an elective office by means of a write-in campaign. NEW SECTION. Sec. 7. A new section is added to chapter 29.15 RCW to read as follows: (1) The secretary of state or other election official authorized by law shall not accept or verify the signatures, nor accept a declaration of candidacy or a nomination paper, from or on behalf of a person who, by reason of sections 2 through 5 of this act, is ineligible for the office, nor allow the person's name to appear on the ballot. Page 21 (2) No terms or years served in office before November 3, 1992, may be used to determine eligibility to appear on the ballot. NEW SECTION. Sec. 8. A new section is added to chapter 29.68 RCW to read as follows: Sections 4 and 5 of this act, regarding candidates for federal legislative office, are not effective until nine states other than Washington have passed laws limiting ballot access or terns of federal legislative office, or both, based on length of service in federal legislative office. NEW SECTION. Sec. 9. A new section is added to chapter 7.16 RCW to read as follows: Any resident of this state may bring suit to enforce sections 2 through 8 of this act. If the person prevails, the court shall award the person reasonable attorney's fees and costs of suit. NEW SECTION Sec. 10. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected. APPENDIX B COMPENDIUM OF RELATED LAW REVIEW ARTICLES The constitutionality of term limits measures is discussed in the following law review articles, notes, and comments: Brendan Barnicle, Comment, Congressional Tenn Limits: Unconstitutional by Initiative, 67 Wash.L.Rev. 415 (1992); Erwin Chemerinsky, Protecting the Democratic Process. Voter Standing to Challenge Abuses of Incumbency, 49 Ohio St.L.J. 773 (1988); *1087 Comment, Tenn Limits and the Seventeenth and Nineteenth Amendments: A © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.com/printlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/ 14/2007 Page 23 of 23 841 F.Supp. 1068 841 F.Supp. 1068, 62 USLW 2523 (Cite as: 841 F.Supp. 1068) Reconceptualization of Article V, 103 Yale L.J. ---- (April, 1994) (forthcoming); Erik H. Corwin, Recent Development, Limits on Legislative Terms: Legal and Policy Implications, 28 Har.J. On Legis. 569 (1991), Robert C. DeCarli, Note, The Constitutionality of State -Enacted Tenn Limits Under the Qualifications Clauses, 71 Tex.L.Rev. 865 (1993); Troy Eid and Jim Kolbe, The New Anti -Federalism: The Constitutionality of State -Imposed Limits on Congressional Terms of 0fflce, 69 Denv.U.L.Rev. 1 (1992); Neil Gorsuch and Michael Guzman, Will the Gentlemen Please Yield? A Defense of the Constitutionality of State-bnposed Term Limitations, 20 Hofstra L.Rev. 341 (1991); Steven R. Greenberger, Democracy and Congressional Tenure, 41 DePaul L.Rev. 37 (1991); Roderick M. Hills, Jr., A Defense of State Constitutional Limits on Federal Congressional Terms, 53 U.Pitt.L.Rev. 97 (1991); Tiffanie Kovacevich, Comment, Constitutionality of Term Limitations: Can States Limit the Terms of Members of Congress?, 23 Pac.L.J. 1677 (1992); Martin E. Latz, The Constitutionality of State -Passed Congressional Term Limits, 25 Akron L.Rev. 155 (1991); Joshua Levy, Note, Can They Throw the Brous Out? 7'he Constitutionality of State -Imposed Congressional Tenn Limits, 80 Geo.L.J. 1913 (1992); Johnathan Mansfield, Note, A Choice Approach to the Constitutionality of Term Limitation Laws, 78 Cornell L.Rev. 966 (1993); Stephen J. Safranek, Term Limitations: Do the Winds of Change Blow Unconstitutional?, 26 Creighton L.Rev. 321(1993). Page 22 W.D.Wash.,1994. Thorsted v. Gregoire 841 F.Supp. 1068, 62 USLW 2523 Briefs and Other Related Documents (Back to top) • 2:93cv00770 (Docket) (Jun. 07, 1993) • 2:92CV01763 (Docket) (Nov. 16, 1992) END OF DOCUMENT m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C 5 9 http://web2.westlaw.com/printlpxintstream.aspx?prft=H rMLE&destination=atp&sv=Split... 3/14/2007 Page 1 of 8 Westlaw Attached Printing Summary Report for PARK,BIO F 5228588 Date/Time of Request: Wednesday, March 14, 2007 15.13:00 Central Client Identifier: 00006.900020 Database: WA -AG Citation Text: Wash. AGO 1991 NO.22 Lines: 446 Documents: 1 Images: 0 The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson, West and their affiliates. CGO http://web2.westlaw.comlprintlprintstream.aspx?prft=HTNU E&destination=atp&sv=Split... 3/14/2007 Page 2 of 8 Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) Page 1 (Cite as: Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.)) Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G) lOffice of the Attorney General State of Washington AGO 1991 No. 22 June 24, 1991 CITIES AND TOWNS -COUNTIES -ELECTIONS -OFFICES AND OFFICERS -CHARTERS -OPTIONAL MUNICIPAL CODE -AUTHORITY TO IMPOSE TERM LIMITATIONS ON ELECTED LOCAL GOVERNMENT OFFICIALS 1. Charter cities, charter counties, noncharter first class cities and noncharter code cities have the authority to impose a limit on the number of terms a locally elected official can serve. 2. Depending upon the provisions of their charter, charter cities and charter counties can adopt a term limitation as a charter provision by ordinance or through the initiative process. Noncharter first class cities and noncharter code cities can only adopt a term limitation through the passage of an ordinance. Honorable Gary A. Nelson State Senator, District 21 106-A Institutions Building, AS-32 Olympia, Washington 98504 Dear Senator Nelson: By letter previously acknowledged you have asked for our opinion on questions we paraphrase as: on the number of terms an elected official can serve? 2. If the answer to question 1 is yes, how can the term limitation be enacted? Brief Answer The answer to question 1 is yes for charter cities, charter counties, noncharter first class cities and noncharter code cities. For other cities, towns and counties, the answer is no. With regard to question 2, depending on the provisions of their charter, charter cities and charter counties can adopt a term limitation as a charter provision, by ordinance or through the initiative process. First class cities and noncharter code cities can only adopt term limitations by ordinance. ANALYSIS Question 1: Can a city, town or county impose a limit on the number of terms an elected official can serve? We begin our analysis with a brief review of the types of local governments authorized in Washington. The Legislature classifies cities and towns as first class, second class, third class and fourth class. RCW` 35.01.010-.040. These classifications depend upon population. For example, a first class city is defined as "one having at least twenty thousand inhabitants at the time of its organization or reorganization." RCW 35.01.010. On the other hand, a fourth class municipal corporation -called a town instead of a city -is one " having not less than three hundred inhabitants and not more than fifteen hundred inhabitants at the time of its organization" RCW 35.01.040. 1. Can a city, town or county impose a limit Cities may also be organized pursuant to article © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Q61 http://web2.westlaw.comlprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 3 of 8 Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) Page 2 (Cite as: Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.)) 11, section 10 (amendment 40) of the Washington Constitution, which provides: "Any city containing a population of ten thousand inhabitants, or more, shall be permitted to frame a charter for its own government, consistent with and subject to the Constitution and laws of this state...:" In addition to the plan for organizing cities and towns in Title 35 RCW, the Legislature has enacted another scheme for the organization of municipal corporations -the optional municipal code set forth in Title 35A RCW. The optional municipal code authorizes two kinds of cities, a noncharter code city and a charter code city. A noncharter code city is defined as: A noncharter code city is one, regardless of population, which has initially incorporated as a noncharter code city, subject to the provisions of this title, or is an incorporated municipality which has elected, under the procedure prescribed in this title, to be classified as a noncharter code city and to be governed according to the provisions of this title under one of the optional forms of government provided for noncharter code cities.RCW 35A.01.020. A charter code city is defined as: A charter code city is one having at least ten thousand inhabitants at the time of its organization or reorganization which has either initially incorporated as a charter code city and has adopted a charter under the procedure prescribed in this title; or which, as an incorporated municipality, has elected to be classified as a charter code city and to be governed according to the provisions of this title and of its adopted charter.RCW 35A.01.030. The Legislature has set up a somewhat similar organization for counties. Counties are classified by population ranging from AA counties which contain a population of 500,000 or more, to ninth class counties which have a population of less than 3,300. RCW 36.13.010. In addition, article 11, section 4 (amendment 21) of the Washington Constitution provides that "[a]ny county may frame a 'Home Rule' charter for its own government subject to the Constitution and laws of this state...." Your question is whether any of these units of local government have the authority to limit the number of terms their elected officials can serve. In AGO 1991 No. 17 we discussed the principles governing the authority of municipal corporations: The general rule is that municipal corporations are limited to those powers expressly granted to them by the Legislature and to powers necessarily or fairly implied in or incident to the powers expressly granted. Chemical Bank v. WPPSS, 99 Wn.2d 772, 792, 666 P.2d 329 (1983); City of Spokane v. J-R Distributors, Inc., 90 Wn.2d 722, 585 P.2d 784 (1978). At least as to matters of local concern, however, this general rule does not apply to cities and counties that have adopted charters pursuant to article 11, sections 4 and 10, of the Washington Constitution, respectively, or to cities operating under the Optional Municipal Code, Title 35A RCW. These cities and counties have legislative power akin to that of the state, except that their actions cannot contravene any constitutional provision or legislative enactment. Thus, such a city or county has broad legislative power except when restricted by enactments of the state. King Cy. Coun. v. Public Disclosure Comm'n, 93 Wn.2d 559, 562-63, 611 P.2d 1227 (1980); Winkenwerder v. Yakima, 52 Wn.2d 617, 622, 328 P.2d 873 (1958); La Mon v. Westport, 22 Wn.App. 215, 217-18, 588 P.2d 1205 (1978); Chemical Bank v. WPPSS, 99 Wn.2d 772, 792-93, 666 P.2d 329 (1983).AGO 1991 No. 17 at 2. To answer your first question we must resolve two issues: (1) Does a term limitation contravene any constitutional provision or legislative enactment? (2) Do the various units of local government have the authority to enact a term limitation? Turning to the first issue, we are persuaded that a term limitation for local elected officials does not contravene a provision of the Washington Constitution or legislative enactment. Article 3, section 25 (amendment 31) sets out qualifications for state office. However, the © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Cs2 http://web2.westlaw.con/printlprintstream.aspx?prft=E TNME&destination=atp&sv=Split... 3/14/2007 Page 4 of 8 Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) (Cite as: Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.)) Constitution is silent on the qualifications for local elected officials. [FN1] Article 3, section 25 provides: "No person, except a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office." These qualifications only apply to state officers. For example, in In re Bartz, 47 Wn.2d 161, 287 P.2d 119 (1955) the court ruled that a justice of the peace is a judicial officer, rather than a state officer. Accordingly, the court ruled that article 3, section 25 did not apply and that the Legislature had the authority to require that a justice of the peace be an attorney. Since article 3, section 25 does not apply to the elected officials of cities, towns and counties and the Constitution is otherwise silent, a term limitation for these officials cannot conflict with a provision of the Constitution. Under the Constitution, the Legislature is authorized to enact laws for the organization of cities and counties. Article 11, section 10 provides that "the legislature, by general laws, shall provide for the incorporation, organization and classification ... of cities and towns...." Article 11, section 4 provides that "[t]he legislature shall establish a system of county government ... throughout the state ... and by general laws shall provide for township organization, under which any county may organize...: . Pursuant to this authority, the Legislature has enacted some qualifications for local officials. These qualifications are scattered throughout Titles 35, 35A and 36 RCW. The prescribed qualifications are very general. They usually require that the candidate be a voter and a resident of the jurisdiction for some specified period of time. For example, RCW 35.23.030 provides: No person shall be eligible to hold any elective office in any city of the second class unless he is a registered voter therein and has resided therein for at least one year next preceding the date of his election.RCW 35,24.030 provides: No person shall be eligible to hold an elective office in a city of the third class unless he be a citizen of and a legal resident therein. RCW 35.27.090 provides: No person shall be eligible to or hold an elective office in a town unless he is a resident and elector therein.RCW 35A.12.030 provides: Page 3 No person shall be eligible to hold elective office under the mayor -council plan unless the person is a registered voter of the city at the time of fling his declaration of candidacy and has been a resident of the city for a period of at least one year next preceding his election.RCW 36.16.030 provides: In every county there shall be elected from among the qualified voters of the county [authorized county officials].... RCW 36.32.040 provides: [Tlhe qualified electors of each county commissioner district, and they only, shall nominate from among their own number, candidates for the office of county commissioner of such commissioner district to be voted for at the following general election. A limitation on the number of terms an elected official can serve has the effect of imposing an additional qualification that must be met by the candidate. To use RCW` 35,23.030 as an example, if a two -term limitation were in place, a candidate for elective office in a second class city would have to meet the following requirements: 1. The candidate must be a registered voter. 2. The candidate must have resided in the city for at least one year preceding the date of the election. 3. The candidate must not have held the office sought for two terms. The Washington Supreme Court reached the conclusion that imposing an additional qualification does not contravene statutes setting forth the qualifications for the election of local officials in State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P.2d 94 (1934). This case concerned a provision in a city charter that no member of the city council "shall hold any other office, federal, state, county or municipal...." 177 Wash. at 620-21. The relator, who had been elected to the city council and also held office as a director of a school district, disputed the application of this provision in the charter. One basis of the challenge was that the charter provision conflicted with statutes enacted by the legislature setting forth the qualification for election of city officials. The statute provided that to hold elective office one must be a citizen of the United States and the State of Washington and an elector of the jurisdiction. [FN2] The court rejected © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C 63 http://web2.westlaw.com/prindprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 5 of 8 Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) Page 4 (Cite as: Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.)) this argument stating: The only attack made by the relator upon the charter is that it purports to superadd certain qualifications necessary for elective officers to those imposed by the legislature.... Had the framers of the charter sought to lessen the requirements demanded by the statute, a different question would be presented, for then the charter would be in direct conflict with the statute. But that is not the case here. Section 9929 merely provides that no person shall be competent to hold elective office unless he possesses certain qualifications. It does not say that no other requirements shall be prescribed, nor does it say that the political subdivision therein named may not impose restrictions not inconsistent with the statute. After all, the statute merely fixes a minimum of qualification below which its political subdivisions may not go. It does not say that other qualifications may not be required, in so far as they affect only the particular subdivision. 177 Wash. at 623-24 (emphasis added). The statutory qualification in Griffith is substantially the same as those previously cited in this opinion. Compare Rem.Rev.Stat. § 9929 and RCW 35.23.030; 35.24,030; 35.27.080; 35A.12.030; 36.16.030. Applying the same line of reasoning in this situation, we must conclude that a term limitation, which would constitute an additional qualification for a candidate, would not contravene the statutes 'which have been enacted by the Legislature. This brings us to the second issue raised by your first question: Do the various units of local government have the authority to enact a term limitation? We begin with charter counties and charter cities. These units of local government clearly have the authority to enact term limitations. Charter cities and charter counties have legislative power, at least as to matters of local concern, akin to that of the state. AGO 1991 No. 17 at 2. In State ex rel. Griffiths, 177 Wash. 619 (1934), the court specifically recognized the authority of a charter city to impose an additional requirement for candidates seeking office in that city. More recently, the court has approved the exercise of authority by charter counties in the election area. In State ex rel. Carroll v. King Cy., 78 Wn.2d 452, 474 P.2d 877 (1970), the court considered a provision of the King County charter that provided for the election of certain county officials in odd -numbered years and adjusted the terms of certain officials to match the new election dates. In sustaining this charter provision the court stated: We think that ... the framers of amendment 21 meant to confer upon counties adopting home rule charters those powers which had theretofore been conferred upon the legislature under Const. art. 11, § 5, including the power to fix the terms of office of county officers, with certain exceptions expressly set forth. It will be observed that the power to frame its own organic law is conferred in broad terms upon the county adopting a charter. While it is not permitted to "affect the election" of the prosecuting attorney, the superintendent of schools, the judges of the superior court and the justices of the peace (all offices in which the state has an interest), there are no restrictions placed upon its right to provide for the election of, prescribe the duties of, and fix the compensation of those officers which it deems necessary to handle its purely local concerns.78 Wn.2d at 456. The court followed State ex rel. Carroll in a subsequent decision, Henry v. Thorne, 92 Wn.2d 878, 602 P.2d 354 (1979). Henry concerned a charter provision that provided a greater restriction on the timing of elections to fill vacancies than those set forth in the State Constitution or statutes enacted by the Legislature. The court approved this charter provision stating: [Amendment 211 providing for county home rule expressed the intent of the people of this state to have "the right to conduct their purely local affairs without supervision by the State, so long as they abided by the provisions of the constitution and did not run counter to considerations of public policy of broad concern, expressed in general laws.92 Wn.2d at 881. Since charter cities and charter counties have broad legislative powers in matters of local concern, we conclude that they have the authority to impose term limitations on locally elected officials. We next turn to local governments that have not © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C64 http://web2.westlaw.conVprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Sp]it... 3/14/2007 Page 6 of 8 Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) (Cite as: Wash. AGO 1991 NO, 22, 1991 WL 521713 (Wash.A.G.)) adopted a charter. The rule for such governments is that they are limited to those powers expressly granted to them by the Legislature and the power necessarily or fairly implied in or incident to the powers expressly granted. AGO 1991 No. 17 at 2. In reviewing the powers delegated to local governments, we find two that have been delegated sufficient authority by the Legislature to impose term limitations -first class cities, that have not adopted a charter, and noncharter code cities under the optional municipal code. With regard to first class cities, RCW 35.22.280(1) provides: Any city of the first class shall have power: (1) To provide for general and special elections, for questions to be voted upon, and for the election of officers[.]This power is granted to all first class cities, even cities that have not adopted a charter. In light of the specific grant of authority to provide for the election of officers, we conclude that a first class city may impose a term limitation upon city officers. Our conclusion here is consistent with our opinion in AGO 1991 No. 3. In that opinion we concluded that RCW 35.22.280(1) authorized a noncharter first class city to enact an ordinance imposing an additional residency requirement on candidates for the office of freeholder, elected to frame a city charter. AGO 1991 No. 3 at 11. Noncharter code cities have also been granted broad powers by the Legislature. RCW 35A.01.010 provides: The purpose and policy of this title is to confer upon two optional classes of cities created hereby the broadest powers of local self-government consistent with the Constitution of this state. Any specific enumeration of municipal powers contained in this title or in any other general law shall not be construed in any way to limit the general description of power contained in this title, and any such specifically enumerated powers shall be construed as in addition and supplementary to the powers conferred in general terms by this title. All grants of municipal power to municipalities electing to be governed under Page 5 the provisions of this title, whether the grant is in specific terms or in general terms, shall be liberally construed in favor of the municipality. RCW 35A.21.160 provides: A code city [FN3] organized or reorganized under this title shall have all of the powers which any city of any class may have and shall be governed in matters of state concern by statutes applicable to such cities in connection with such powers to the extent to which such laws are appropriate and are not in conflict with the provisions specifically applicable to code cities.RCW 35A.11.020 provides in part: The legislative body of each code city shall have power to organize and regulate its internal affairs within the provisions of this title and its charter, if any; and to define the functions, powers, and duties of its officers and employees; within the limitations imposed by vested rights, to fix the compensation and working conditions of such officers and employees and establish and maintain civil service, or merit systems, retirement and pension systems not in conflict with the provisions of this title.... After reviewing the statutes in AGO 1972 No.24 we stated: The critical point to be drawn from these statutes is that by electing to come under the optional municipal code a city ceases to be governed by the traditional rules of delegated powers.... Instead, a city so opting thereby becomes possessed of all powers which either have been specifically granted by the legislature to any class of city (RCW 35A.21.160, supra) or which could be granted by the legislature (RCW 35A.01.010 and 35A.11.020, supra), subject only to such restrictions or limitations as are contained in the statutes themselves or within the state constitution; which is but another way of saying that the optional municipal code entitles cities operating thereunder to the equivalent of the home rule powers otherwise available only to first class charter cities.AGO 1972 No. 24 at 7. There is no Washington case authority directly on point relating to local governments that have not adopted a charter. However, we have discovered a © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 7 of 8 Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) Page 6 (Cite as: Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.)) decision from Pennsylvania that appears directly on point and we find the decision persuasive. In Commonwealth of Pennsylvania v. Clark, 515 A.2d 1320, 512 Pa. 1 (1986), the court considered the authority of a city to enact an ordinance that limited the office of mayor to two terms. The city in question had chosen to be governed by the Code and the Charter Law, Mayor -Council Plan A. 515 A.2d at 1322. The law granted the city broad powers somewhat similar to those granted in the optional municipal code. [FN4] One of the issues before the court was whether "a third class municipality operating under Mayor -Council Plan A of the Charter Law has authority to promulgate an ordinance limiting the number of times a municipal officer can stand for reelection." 515 A.2d at 1324. The court concluded that the city did have the authority to enact the ordinance: (4) Under section 303(1), supra, the Legislature does empower the Council to administer local affairs. The power of the Council to limit incumbent municipal officers, including mayors to one term of reelection, as in the case at bar, is well within the scope of authority granted by the Legislature through section 303(1). Further, section 304 (53 P.S. § 41304, Supp.1986) provides "[a] general grant of municipal power ... intended to confer the greatest power of local self-government consistent with the Constitution of the State." Moreover, section 304 also provides that "[a]ll grants of municipal power to cities governed by an optional plan under this act, whether in the form of specific enumeration or general terms, shalt be liberally construed in favor of the city." 515 A.2d at 1324 (footnote omitted). In our judgment the court's reasoning is equally applicable to powers granted noncharter first class cities and noncharter code cities. These jurisdictions have been granted the authority to impose term limitations on their elected officials. We do not find a similar grant of authority to second and third class cities, towns or the various classifications of counties. See e.g., RCW 35.23.010; 35.27.010; 36.32.120. In absence of a delegation of authority from the Legislature these levels of local government do not have the authority to limit the terms of their elected officials. Question 2: If the answer to question I is yes, how can the term limitation be enacted? The starting point for our analysis of your second question is the power of the Legislature to enact laws for the organization of city and county government. Const. art. 11, §§ 5, 10. Clearly, the Legislature has the authority to enact term limitations for city and county officials. By the same token, the Legislature could specifically prohibit term limitation for local officials or enact statutes setting forth the exclusive qualification for local officials, which would have the same effect. Before any city, town or county can impose a term limitation it must carefully review the statutes governing its elections to determine if the Legislature has enacted exclusive qualifications or acted in some other way to prohibit term limitations. We have reviewed some statutes. See infra. p. 5. However, given the broad nature of your question, we have not made an exhaustive review of the law in this area. Accordingly, any jurisdiction considering a term limitation should conduct its own review. With regard to charter cities and charter counties, the means of enacting a term limitation depends on the provisions of the charter. Obviously, the limitation can be adopted as a provision in the charter. This can be done when the charter is initially drafted or by amendment. See e.g., RCW 35.22.050-.190; 35A.08.030-.120; 35A.09.010-.070. A term limitation also might be accomplished by ordinance. However, this also depends on the provisions of the charter. If the charter sets out the exclusive qualifications for a candidate seeking city or county office, the legislative authority would be without power to change those qualifications. In this situation, a charter amendment would be necessary to enact a term limitation. On the other hand, if the charter sets out certain minimum qualifications, the legislative authority would have the power to add a term limitation by ordinance, so long as it did not conflict with the qualifications © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C,6G http://web2.westlaw.comlprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 8 of 8 Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) (Cite as: Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.)). contained in the charter. A term limitation in a charter city or charter county might also be enacted by initiative of the people. Again, this can only be done if the charter provides for initiatives. If the charter does not provide an initiative process, the people have no direct legislative powers. If the charter does provide an initiative process, the people must exercise their legislative power in accordance with the charter. Thus, as with the city or county legislative authority, the people would have the power to add a term limitation, so long as it did not conflict with the qualifications contained in the charter. We turn next to noncharter first class cities and noncharter code cities. These units of local government can only adopt term limitation by ordinance. Since these jurisdictions have not adopted a charter, the term limitation cannot be included as a charter provision. In addition, the people of noncharter first class cities and noncharter code cities do not have power to legislate directly through the initiative process. RCW 35.22.200; AGO 1970 No. 8 at 4. We trust the foregoing will be of assistance to you. Very truly yours, Kenneth O. Eikenberry Attorney General William B. Collins Assistant Attorney General [FNI) As originally adopted in 1889, the Washington Constitution provided a term limitation for county officials. Article 11, section 7 stated: "No county officer shall be eligible to hold his office more than two terms in succession." Article 11, section 7 was repealed by amendment 22 in 1948. [FN21 The statute at issue provided: That no person shall be competent to qualify for or hold any elective public office within the state of Washington, or any county, district, precinct, school district, municipal corporation or other district or political subdivision, unless he be a citizen of the United States and state of Page 7 Washington and an elector of such county, district, precinct, school district, municipality or other district or political subdivision.Rem.Rev.Stat. § 9929; Laws of 1919, ch. 139, § 1, p. 390. [FN31 The term "code city" includes both charter code cities and noncharter code cities. RCW 35A.01.030. [FN4] The Code and Charter Law provided in part: Each city governed by an optional form of government pursuant to this act shall, subject to the provisions of and limitations prescribed by this act, have full power to: (1) Organize and regulate its internal affairs, and to establish, alter, and abolish offices, positions and employments and to define the functions, powers and duties thereof and fix their term, tenure and compensation; ...515 A.2d at 1322 n. 6. Wash. AGO 1991 NO. 22, 1991 WL 521713 (Wash.A.G.) END OF DOCUMENT © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C67 http://web2.westlaw.comlprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 EXHIBIT D { G17S96928.WC:1 /00000.000000/ } CGS Page 2 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as:134 Wash.2d 188, 949 P.2d 1366) P Briefs and Other Related Documents Gerberding v. MunroWash.,1998. Supreme Court of Washington,En Banc. William GERBERDING; Kemper Freeman, Jr.; Common Cause of Washington; Association of Washington Cities; Paul Sutley; Shirley Doty; Timothy Kaufman -Osborn; Arthur Siegal; Tom Gregory; Ida Ballasiotes; Bob McCaslin; Alex Deccio; Valoria Loveland; Helen Sommers; and Marlin Appelwick, Petitioners, V. Ralph MUNRO, Secretary of State; and Christine O. Gregoire, Attorney General, Respondents, U.S. Term Limits, Inc.; Citizens for Leaders with Ethics and Accountability Now, Inc. (CLEAN), Respondents/Intervenors. No. 65059-4. Argued Oct. 15, 1997. Decided Jan. 8, 1998. Voters, public interest groups, and incumbent legislators brought original action against Secretary of State, in his capacity as State's chief elections officer, and Attorney General, seeking invalidation of initiative effectively imposing term limits on state constitutional officers, and issuance of writ of mandamus directing Secretary to allow incumbents access to ballot. The Supreme Court, Talmadge, J., held that initiative was unconstitutional attempt to impose statutory qualifications for office in addition to those prescribed by State Constitution. Page 1 Mandamus will not lie to compel discretionary act or to direct state officer to generally perform constitutional duties, but will lie to compel state officer to undertake clear duty. West's RCWA Const. Art. 4, § 4. [2] Mandamus 250 C=173(1) 250 Mandamus 250I1 Subjects and Purposes of Relief 25011(B) Acts and Proceedings of Public Officers and Boards and Municipalities 25003 Specific Acts 25003(1) k. In General. Most Cited Cases Supreme Court can declare law unconstitutional in mandamus action only if such declaration is necessary to issuance of writ. West's RCWA Const. Art. 4, § 4. [3] Constitutional Law 92 4' -48(1) 92 Constitutional Law 92II Construction, Operation, and Enforcement of Constitutional Provisions 92k44 Determination of Constitutional Questions 92k48 Presumptions and Construction in Favor of Constitutionality 92k48(1) k. In General. Most Cited Cases Constitutional Law 92 C=48(3) Ordered accordingly. 92 Constitutional Law West Headnotes 9211 Construction, Operation, and Enforcement [1] Mandamus 250 C=?72 of Constitutional Provisions 92k44 Determination of Constitutional 250 Mandamus Questions 250H Subjects and Purposes of Relief 92k48 Presumptions and Construction in 250I1(B) Acts and Proceedings of Public Favor of Constitutionality Officers and Boards and Municipalities 92k48(3) k. Doubtful Cases; 250k72 k. Matters of Discretion. Most Construction to Avoid Doubt. Most Cited Cases Cited Cases Statute is presumed constitutional, and parties © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. CG9 http://web2.westlaw.com/print/printstream. aspx?prft=HTML.E&destination=atp&sv=Split... 3/14/2007 Page 3 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as: 134 Wash.2d 188, 949 P.2d 1366) challenging its constitutionality must demonstrate its unconstitutionality beyond reasonable doubt. [41 Statutes 361 0:-301 361 Statutes 3611X Initiative 3611301 k. Initiative in General. Most Cited Cases While initiative measures are reflective of reserved power of people to legislate, people in their legislative capacity remain subject to mandates of Constitution. [5] Constitutional Law 92 C;;�26 92 Constitutional Law 92II Construction, Operation, and Enforcement of Constitutional Provisions 92k25 Grant or Limitation of Powers 92k26 k. State Constitutions. Most Cited Cases State Constitution is restriction on legislative power, rather than grant of powers. [6] Statutes 361 e,-64(2) 361 Statutes 361I Enactment, Requisites, and Validity in General 361k64 Effect of Partial Invalidity 36lk64(2) k. Acts Relating to Particular Subjects in General. Most Cited Cases Provisions of initiative effectively imposing term limits on state constitutional officers were severable from portions of initiative addressing federal legislators, which had been found by federal courts to violate federal constitution; initiative had severability clause and addressed perceived evils of incumbency in state offices, and it could not fairly be said that state office provisions would not have been independently supported by initiative proponents and voters seeking to address perceived evils of incumbency at local level. West's RCWA 29.15.240(1), 29.68.015, 29.68.016, 43.01.015, 44.04.015. [71 Statutes 361 C-64(1) Page 2 361 Statutes 3611 Enactment, Requisites, and Validity in General 361164 Effect of Partial Invalidity 361k64(1) k. In General. Most Cited Cases Basic test for severability of constitutional and unconstitutional provisions of legislation is whether provisions are so connected that it could not be believed that legislature would have passed one without other, or whether unconstitutional part is so intimately connected with balance of act as to make balance useless to accomplish purposes of legislature. [8) States 360 4D-47 360 States 36011 Government and Officers 360k47 k. Eligibility to Office. Most Cited Cases States 360 C=51 360 States 36011 Government and Officers 360k5l k. Term of Office, Vacancies, and Holding Over. Most Cited Cases Nonincumbency as described in initiative effectively imposing term limits on state constitutional officers was "qualification" for office, for purposes of determining initiative's constitutionality. West's RCWA 29.15.240(1), 43.01.015, 44.04.015. [9) Officers and Public Employees 283 C-18 283 Officers and Public Employees 283I Appointment, Qualification, and Tenure 2831(C) Eligibility and Qualification 283k18 k. Eligibility in General. Most Cited Cases "Negative" framing of attribute does not preclude it from being "qualification" for office. [101 States 360 C=47 360 States 36011 Government and Officers 3601<47 k. Eligibility to Office. Most Cited 0 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. e7o http://web2.westlaw.conVprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 4 of 27 949 P.2d 1366 134 Wash.2d 189, 949 P.2d 1366 (Cite as:134 Wash.2d 188, 949 P.2d 1366) Cases Statutes 361 (D-303 361 Statutes 361IX Initiative 361003 k. Matters Subject to Initiative. Most Cited Cases Qualifications for state constitutional officers set forth in State Constitution were exclusive, and additional qualifications effectively imposing term limits could not be added by statutory initiative; framers established qualifications for office, did not confer express authority upon Legislature to add to such qualifications by statute, specifically debated term limits, and rejected such qualifications for officers in question. West's RCWA Const. Art. 2, § 7; Art. 3, § 25; West's RCWA 29.15.240(1), 43.01.015, 44.04.015, [111 Constitutional Law 92 C=9(.5) 92 Constitutional Law 92I Establishment and Amendment of Constitutions 92k4 Amendment and Revision of State Constitutions 92k9 Submission to Popular Vote 92k9(.5) k. In General, Most Cited Cases Initiative effectively imposing term limits on state constitutional officers was statutory enactment that was not designed to, and did not, amend State Constitution. West's RCWA Const. Art. 2, § 7; Art. 3, § 25; West's RCWA 29.15.240(1), 43.01.015, 44.04.015. [12] Constitutional Law 92 C---9(.5) 92 Constitutional Law 92I Establishment and Amendment of Constitutions 92k4 Amendment and Revision of State Constitutions 92k9 Submission to Popular Vote 92k9(.5) k. In General. Most Cited Cases Initiative power may not be used to amend Constitution. Page 3 [131 States 360 C-47 360 States 360111 Government and Officers 360k47 k. Eligibility to Office. Most Cited Cases Statute, whether adopted by Legislature or people, may not add qualifications for state constitutional officers where Constitution sets those qualifications. West's RCWA Const. Art. 2, § 7; Art. 3, § 25. **1367 *190 Brent D. Boger, Robin L. Rivett, Deborah La Fetra, Sacramento, CA, amicus curiae for Pacific Legal Foundation. Perkins, Coie, David Burman, Nancy Day, Seattle, for Petitioners. Christine Gregoire, Attorney General, James Pharris, Jeffrey Even, Anne Egeler, Assistant Attorneys General, Olympia, Marten & Brown, Stimson Bullitt, Appel & Glueck, William Glueck, Seattle, for Respondents. *191 TALMADGE, Justice. We are asked in this original action for a writ of mandamus to evaluate the constitutionality of those portions of Initiative 573 (the Term Limits Law) effectively placing term limits on certain state constitutional officers. Initiative 573 prevents individuals who have held state legislative seats or certain state constitutional offices FNt for a prescribed**1368 period of time from filing a declaration of candidacy and appearing on the ballot for such offices, although write-in campaigns are permitted. Such restrictions are qualifications beyond those set forth in the Washington Constitution for such offices, and the Legislature or the people acting in their legislative capacity may not add statutory qualifications to those prescribed for state constitutional officers. We find Initiative 573 unconstitutional and issue a writ of mandamus to the secretary of state directing him to accept declarations of candidacy, notwithstanding Initiative 573. FN I. Aside from legislative offices, Initiative 573 affects only the governor and the lieutenant governor, and not the judiciary, attorney general, secretary of m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C" 71 http://web2.westlaw.conVprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 5 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as:134 Wash.2d 188, 949 P.2d 1366) state, auditor, treasurer, superintendent of public instruction (SPI), land commissioner, or insurance commissioner. Ironically, in AGO 61-62, No. 173, at 1 (1962), the attorney general concluded the Legislature did not have the authority to establish additional qualifications for the SPI beyond those set forth in article 111, section 25: "[t]he legislature does not have the authority to establish qualifications for the office of the state superintendent of public instruction in addition to those found in Article III, § 25, Amendment 31, of the Washington State Constitution." ISSUES 1. Are the provisions of Initiative 573 pertaining to state constitutional officers severable -from the provisions pertaining to federal legislators which have been found unconstitutional by federal courts? *192 2. Do the restrictions on declarations of candidacy and appearance on the ballot for certain candidates with prior office holding experience set forth in Initiative 573 constitute qualifications for state constitutional offices? 3. May qualifications for state constitutional officers beyond those set forth in the Washington Constitution be added by statute? 4. Does Initiative 573 amend the Washington Constitution? FACTS In 1992, Washington voters approved Initiative 573, the Term Limits Law, by a 52 percent majority. That initiative restricted access to the ballot for incumbent state and federal office holders. Section 1 of Initiative 573 sets forth the perceptions upon which enactment of the initiative was based: FN' FN2. Prior to the enactment of Initiative Page 4 573, significant turnover in the Washington Legislature occurred without the mandate of this law. In the 1992 election itself, the Washington House of Representatives had 38 newly elected members, or 39 percent, and the Senate had 16 newly elected members, or 33 percent. The House of Representatives had 42 new members after the 1994 election. See 1993-94 Washington Legislative Manual at 469-78, 529-44; 1995-96 Washington Legislative Manual at 453-68. It is also noteworthy the voters in 1996 rejected Initiative 670 which would have required a notation on the ballot affixed to the name of any candidate who opposed term limits. (1) The people will best be served by citizen legislators who are subject to a reasonable degree of rotation in office; (2) Entrenched incumbents have become indifferent to the conditions and concerns of the people; (3) Entrenched incumbents have an inordinate advantage in elections because of their control of campaign finance laws and gerrymandering of electoral districts; (4) Entrenched incumbency has discouraged qualified citizens from seeking public office; (5) Entrenched incumbents have become preoccupied with their own reelection and devote more effort to campaigning *193 than to making legislative decisions for the benefit of the people; (6) Entrenched incumbents have become closely aligned with special interest groups who provide contributions and support for their reelection campaigns, give entrenched incumbents special favors, and lobby office holders for special interest legislation to the detriment of the people of this state, and may create corruption or the appearance of corruption of the legislative system; (7) The people of Washington have a compelling interest in preventing the self-perpetuating monopoly of elective office by a dynastic ruling class. Laws of 1993, ch. 1, § 1. This preamble to Initiative © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C72 http:llweb2.westlaw.comlprint/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 6 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as: 134 Wash.2d 188, 949 P.2d 1366) 573 strongly implies its purpose is to make incumbents ineligible for specified state constitutional offices. See RCW 29.15.240. Under the initiative, persons who have served for 8 or more of the last 14 years (measured from the end of current term of office) for governor or lieutenant governor may not file a declaration of candidacy or appear on the ballot for such offices. **1369RCW 43.01.015. Similar restrictions, with variations in the years of service, are established for state legislators, RCW 44.04.015; United States representatives, RCW 29.68.015; and United States senators, RCW 29.68.016. The secretary of state may not accept declarations of candidacy or nomination papers, or permit a person's name to appear on the ballot if the person is subject to these restrictions. RCW 29.15.240(1) FN3 Citizens suits are allowed to enforce Initiative 573. RCW 7.16.370 FN4 FN3. The use of this language regarding declarations of candidacy, nomination papers, and names on the ballot also means the secretary, who is charged with preparing the official Voters' Pamphlet, may not include candidates subject to Initiative 573 in the official Voters' Pamphlet. RCW 29.80.010; RCW 29.04.180. FN4. Because section 7(2) of Initiative 573 excludes service before November 3, 1992 in any eligibility calculation, 1998 will be the first year in which some members of the State House of Representatives will be subject to Initiative 573. No state senator will be affected until the year 2000. Since a new governor and lieutenant governor were elected in 1996, 2004 is the first year in which there may be an incumbent in either of those offices subject to the provisions of Initiative 573. See RCW 29.15.240(2). Initiative 573 permits the people to write in the name of *194 a candidate, notwithstanding the restrictions it establishes. RCW 29.51.173. But Page 5 the effect of such a write-in campaign is limited. If the incumbent write-in candidate wins his or her party's nomination, the candidate is still barred from the general election ballot and the Voters' Pamphlet. See RCW 29.15.240(1); RCW 29.80.010, Thus, the candidate must mount a second write-in campaign for the general election FN5 FN5. Cf.. Representative Linda Smith's successful 1994 Congressional campaign, in which she secured the Republican Party nomination by a write-in campaign, but her name was placed on the general election ballot and her statement and photograph appeared in the Voters' Pamphlet. Upon its enactment, Initiative 573 was challenged in federal court with respect to its effect on federal officers. Sections 4, 5, and 8 relating to United States senators and representatives were invalidated by the federal courts. See Thorsted v. Gregoire, 841 F.Supp. 1068 (W.D.Wash.1994), affd sub nom. Thorsted v. Munro, 75 F.3d 454 (9th Cir.1996). State constitutional officers were not at issue in the federal litigation. The present original action was filed on March 21, 1997. The petitioners include voters, Common Cause of Washington, the Association of Washington Cities, and incumbent legislators. The respondents are Ralph Munro, the secretary of state, in his capacity as the state's chief elections officer, RCW 29.04.070, and the attorney general. The action seeks invalidation of the Term Limits Law and issuance of a writ of mandamus directing the secretary of state to allow incumbents access to the ballot. RAP 16.2(b). The secretary of state opposed the petition, arguing our consideration of Initiative 573 was premature. We, nevertheless, retained the petition. We granted the motion to intervene of public interest groups, U.S. Term Limits, Inc. (USTL) and Citizens for Leaders with Ethics and Accountability *195 Now, Inc. (CLEAN). We also granted amicus curiae status to the Pacific Legal Foundation (PLF). ANALYSIS m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 073 http://web2.westlaw.com/printlprintstream.aspx?prft=HTN LE&destination=atp&sv=Split... 3/14/2007 Page 7 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as: 134 Wash.2d 188,949 P.2d 1366) In addressing an original action, we are guided by the principles of RAP 16.2 regarding the filing of original actions against a state officer. The parties here have stipulated to the facts so that a factual reference hearing pursuant to RAP 16.2(d) is unnecessary. The case takes the same course of review as any other case where we accept review of a trial court decision. RAP 16.2(e). [1][2] The Washington Constitution confers original jurisdiction upon this Court in "mandamus as to all state officers." Wash. Const. art. IV, § 4. Mandamus will not lie to compel a discretionary act, State ex rel. Burlington Northern, Ii:c. v. Washington State Utils. & Transp. Comm'n, 93 Wash.2d 398, 410, 609 P.2d 1375 (1980), nor lie to direct a state officer to generally perform constitutional duties. Walker v. Munro, 124 Wash.2d 402, 407-08, 879 P.2d 920 (1994). Mandamus will lie to compel a state officer to undertake a clear duty. Id at 409, 879 P.2d 920; see also **1370State ex rel. Burlington Northern, 93 Wash.2d at 410, 609 P.2d 1375. We can declare a law unconstitutional in a mandamus action only if such a declaration is necessary to the issuance of the writ. See Walker, 124 Wash.2d at 409, 879 P.2d 920. In this case, if we find Initiative 573 unconstitutional, mandamus will properly lie as to the Secretary of State. The Secretary is the chief elections officer for the state. RCW 29,04.070. The Secretary accepts declarations of candidacy for state executive officers, RCW 29.15.030(l), and legislators whose districts encompass multiple counties. RCW 29.15.030(2). The Secretary makes rules to facilitate the execution of election laws and assists local elections officers by devising uniform forms and procedures. RCW 29.04.080. The Secretary also prepares the official state Voters' Pamphlet, RCW 29.80.010, and certifies names of candidates for placement on the election ballot. See RCW 29.04.210(1), (8); RCW 29.30.101; RCW 29.79.230. Thus, *196 the writ would compel the Secretary to undertake a clear Iegal duty, to accept declarations of candidacy and nominations papers, and certify for placement on the election ballot the names of candidates otherwise disqualified by Initiative 573. Page 6 Turning to the arguments raised by the parties in this case, petitioners assert Initiative 573 is unconstitutional, offering three arguments: (1) the term limit provisions for state constitutional officers cannot be severed from the unconstitutional federal legislator provisions; (2) Initiative 573 impermissibly adds to the exclusive list of qualifications contained in the Washington Constitution, which can only be altered by constitutional amendment; (3) Initiative 573 violates petitioners' rights of expression, suffrage, free association, and equal treatment under the Washington and United States Constitutions. Respondents assert the provisions of Initiative 573 at issue here are constitutionally valid. Intervenors and PLF contend Initiative 573 should be sustained on policy grounds. [3][4][5) In our analysis of the provisions of Initiative 573 we are guided by general principles for evaluating its constitutionality. First, the statute is presumed constitutional and parties challenging its constitutionality must demonstrate its unconstitutionality beyond a reasonable doubt. City of Seattle v. Montana, 129 Wash.2d 583, 589, 919 P.2d 1218 (1996); Erickson & Assocs., Inc. v. McLerran, 123 Wash.2d 864, 869, 872 P.2d 1090 (1994); State v. Brayman, 110 Wash.2d 183, 193, 751 P.2d 294 (1988). Second, while initiative measures are reflective of the reserved power of the people to legislate, Save Our State Park v. Hordyk, 71 Wash.App. 84, 89-90, 856 P.2d 734 (1993), the people in their legislative capacity remain subject to the mandates of the Constitution. Culliton v. Chase, 174 Wash. 363, 373-74, 25 P.2d 81 (1933). Finally, the Washington Constitution is a restriction on legislative power rather than a grant of powers. Moses Lake Sch. Dist. No. 161 v. Big Bend Community College, 81 Wash.2d 551, 555, 503 P.2d 86 (1972), appeal dismissed, 412 U.S. 934, 93 S.Ct. 2776, 37 L.Fd.2d 393 (1973); Fain v. Chapman, 89 Wash.2d 48, 53, 569 P.2d 1135 (1977). *197 A. Severability [6] The first issue advanced by petitioners is that because the provisions of Initiative 573 pertaining © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 074 http://web2.westlaw.com/print/printstream.aspx?prft=HTN4U&destination=atp&sv=Split... 3/14/2007 Page 8 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as. 134 Wash.2d 188,949 P.2d 1366) to federal legislators were found unconstitutional in Thorsted, 841 F.Supp. 1068, the provisions pertaining to state constitutional officers fail as well because they cannot be severed from the unconstitutional portions of the measure. [7] The basic test for severability of constitutional and unconstitutional provisions of legislation is set forth in Hall by Hall v. Niemer, 97 Wash.2d 574, 582, 649 P.2d 98 (1982) (quoting State ex rel. King County v. State Tax Comm'n, 174 Wash. 336, 339-40, 24 P.2d 1094 (1933)): whether the constitutional and unconstitutional provisions are so connected ... that it could not be believed that the legislature would have passed one without the other; or where the part eliminated is so intimately connected with the balance of the act as to make it useless to accomplish the purposes of the legislature. Accord Leonard v. City of Spokane, 127 Wash.2d 194, 201, 897 P.2d 358 (1995). **1371 With respect to the first requirement, where a severability clause is present in legislation, we have found such a clause to provide the necessary assurance that the Legislature would have enacted the appropriate sections of the legislation despite the unconstitutional sections. State v. Anderson, 81 Wash.2d 234, 236, 501 P.2d 184 (1972). Initiative 573 contains a severability clause so that the first aspect of the severability test is met. See Laws of 1993. ch. 1, § 10. As to the second requirement, petitioners assert the elimination of the unconstitutional portions of Initiative 573 pertaining to federal legislators so destroys the act as to render it incapable of accomplishing its intended purpose. They note the frequent references in the 1992 Voters' Pamphlet to "national issues" as to the intent of Initiative 573, claiming the term limits for federal legislators*198 were essential to its enactment by the people. The 1992 Voters' Pamphlet refers to the national debt and tax burden, the S & L bailout and congressional banking and postal scandals. However, even a cursory look at the pamphlet reveals many references to state offices, referring to governor, lieutenant governor and state senators and Page 7 representatives. Although the pamphlet notes several national issues, its lamentations regarding the evils of incumbency and elimination of " deadwood" can fairly be read as applying equally to the state constitutional officers addressed in the initiative. Thus, even without the portions relating to national office, as Initiative 573 addresses perceived evils of incumbency in state offices, it has not been rendered "useless," as required by the test for severability. Nor can it fairly be said that the state office provisions would not have been independently supported by the initiative proponents and voters seeking to address the perceived evils of incumbency at the local level. The second prong of the severability test is also met. The provisions of Initiative 573 addressing state constitutional officers are severable, and are not unconstitutional per se because the provisions regarding federal legislators have been found by federal courts to violate the federal constitution. B. Qualifications for State Constitutional Officers The next question before us is whether the provisions of Initiative 573 are qualifications for state constitutional officers and whether the qualifications, set in the Washington Constitution for the officers in question, may be supplemented by statute. 1. Term Limits Are Qualifications (8) The threshold question we must answer is whether the restrictions set forth in Initiative 573 for certain candidates constitute "qualifications" for office. In the traditional sense, qualifications for office are attributes *199 which must be met before a person can be a candidate for office or officeholder such as age, residence, or citizenship. The dictionary definition is "... [a] condition or circumstance which must be satisfied." Webster's II New Riverside University Dictionary 961 (1984). As the term itself is undefined in the Constitution, we apply its ordinary meaning. See Boeing Co. v. Aetna Cas. & Sur. Co., 113 Wash.2d 869, 877, 784 P.2d 507 (1990) (undefined terms are given their " m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C7Is http://web2.westlaw.comlprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 9 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as: 134 Wash.2d 188,949 P.2d 1366) plain, ordinary and popular" meaning; and courts look to standard English language dictionaries to determine the ordinary meaning of such terms). [9) Initiative 573, however, frames the limitation in a negative sense, barring certain people from being candidates. A "negative" framing of the attribute does not preclude it from being a qualification. In Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). the United States Supreme Court addressed U.S. Const. art. I, § 2, cl. 2, the qualifications clause for members of the United States House of Representatives.FN6 The Court rejected a contention that the negative phrasing of the qualifications clause prescribed standing incapacities only and did not impose further limits on the **1372 power of each house to judge its members' fitness for office. See Powell, 395 U.S. at 536-47, 89 S.Ct. at 1972-77. In holding the House was without power to exclude any member -elect who met the Constitution's requirements for membership, the Court recognized the qualifications clause provides an exclusive list of qualifications, notwithstanding its negative phrasing. Id. 395 U.S. at 536-38, 89 S.Ct. at 1972-73. FN6. U.S. Const. an. I, § 2, cl. 2 provides: No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. In State ex ret. Chandler v. Howell, 104 Wash. 99, 175 P. 569 (1918), we held the Washington Constitution's prohibition on judges seeking other offices during the term for which they were elected was a qualification that could not *200 be added to those set for federal legislative office under the United States Constitution. Moreover, under Wash. Const. art. IV, § 3(a) (amend.25), judges have a mandatory retirement age of 75 years. Thus, framed more positively, a qualification for judicial office in Washington is that judges must be 75 years of age or younger. Page 8 While some proponents of term limits of the sort established by Initiative 573 have contended the restrictions on incumbents relate to ballot access, such restrictions have been interpreted to be qualifications for office. The United States Supreme Court in United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 829-39, 115 S.Ct. 1842, 1867-71, 131 L.Ed.2d 881 (1995), rejected the view that an Arkansas constitutional amendment imposing term limits was a valid ballot access measure, and held term limits constituted a qualification for federal legislative office; such addition to the constitutional qualifications for federal office was invalid. See also Thorsted v. Gregoire, 841 F.Supp. 1068, 1081 (W.D.Wash.1994) (Initiative 573 imposes a new qualification for office: nonincumbency beyond the specified periods), afd sub nom. Thorsted v. Munro, 75 F.3d 454 (9th Cir.1996); Alaskans for Legislative Reform v. State, 887 P.2d 960, 966 (Alaska 1994) (rejecting Alaska's term limits initiative because it imposed " 'qualifications' as that term has been used by constitutional delegates, political thinkers, legal scholars, and courts"). Likewise in 1895. we interpreted the term limit provision of former article XI, section 7 Fv7 as a qualification for county treasurers. In Koontz v. Kurtzman, 12 Wash. 59, 40 P. 622 (1895), an unsuccessful candidate for county treasurer challenged the election asserting the person elected was ineligible to hold office under former Wash. Const. art. XI, § 7 alleging a partial tern served by the treasurer pursuant to appointment should be counted in applying the term limit. In analyzing the issue, we treated the term limit as a qualification: FN7. See note 9, infra. *201 We are of the opinion that appellant was not disqualified from holding the second term under [ article XI, section 7], in consequence of having served for a part of a term under the appointment by the commissioners. The constitution does not say that no person shall hold a county office for more than four years, but says that he shall not hold it for more than two terms in succession. It interposes a term limit but not a time limit. The term of office © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. (_ 7 6 http://web2.westlaw.comlprintlpiintstream.aspx?prft=HTN LE&destination=atp&sv=Split... 3/14/2007 Page 10 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as: 134 Wash.2d 188, 949 P.2d 1366) is fixed by law and is two years, and there may be several different incumbents during a single term. Koontz, 12 Wash. at 60, 40 P. 622 (emphasis added). Counsel for Respondents Munro and Gregoire effectively conceded the restrictions of Initiative 573 are qualifications in oral argument. As the intent section of the measure proclaims, and the effect of the measure commands, nonincumbency as described in Initiative 573 becomes a qualification for state constitutional officers, and we so hold. 2. Qualifications for State Constitutional Officers Are Exclusive [10] Having determined Initiative 573 establishes nonincumbency as a new qualification for state constitutional officers we next turn to the question of whether qualifications can be added by statute to the qualifications set forth in the constitution for such officers. Petitioners contend the qualifications mandated by Initiative 573 unconstitutionally add to the exclusive qualifications for state constitutional**1373 officers established in the Washington Constitution. Respondents, in turn, assert the negative phraseology of the Constitution indicates the qualifications for state constitutional officers are minimums to which the Legislature or the people may add by statute. In determining whether term limits constitute impermissible qualifications beyond those expressed in our state Constitution, it is important to re -visit fundamental principles regarding qualifications for state constitutional *202 offices. Our cases have expressed a strong presumption in favor of eligibility for office. In State v. Schragg, 158 Wash. 74, 78, 291 P. 321 (1930), we stated: Since the right to participate in the government is the common right of all, it is the unqualified right of any eligible person within the state to aspire to any of these offices, and equally the unqualified right of the people of the state to choose from among those aspiring the persons who shall hold such offices. It must follow from these considerations that eligibility to an office in the state is to be presumed Page 9 rather than to be denied, and must further follow that any doubt as to the eligibility of any person to hold an office must be resolved against the doubt. Id. at 78, 291 P. 321. Accord State ex rel. O'Connell v. Dubuque, 68 Wash.2d 553, 566, 413 P.2d 972 (1966) ("[a] strong public policy exists in favor of eligibility for public office, and the constitution, where the language and context allows, should be construed so as to preserve this eligibility" The Washington Constitution sets forth qualifications for state legislative offices: Qualifications of Legislators. No person shall be eligible to the legislature who shall not be a citizen of the United States and a qualified voter in the district for which he is chosen. Wash. Const. art. II, § 7. Similarly, the Constitution establishes qualifications for state executive officers:Qualifications, Compensation, Offices Which May Be Abolished. No person, except a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office. Wash. Const. art. III, § 25 (amend.31). The history of these provisions indicates they were meant to be the exclusive qualifications for such state constitutional officers. The constitutional provisions establishing qualifications for state constitutional officers were the subject of intense debate in the 1889 Constitutional Convention. The original *203 draft of article III, section 25, provided a general residency in Washington requirement of two years in addition to other qualifications. For the governor and lieutenant governor, a minimum age of 35 years and a five-year Washington residency requirement were established. This draft of the section was ultimately rejected. See The Journal of the Washington State Constitutional Convention 1889, at 589-91 (Beverly Paulik Rosenow ed., 1962). Term limits were also debated, and in some cases applied, when qualifications for certain state offices m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 7 httv://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 11 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as:134 Wash.2d 188, 949 P.2d 1366) were being determined. As originally adopted in 1889, Wash. Const. art. III, § 25, provided in part: No person, except a citizen of the United States and a qualified elector of this state shall be eligible to hold any state office, and the State Treasurer shall be ineligible for the term succeeding that for which he was elected ... (Emphasis added.) Journal at 589-90 Ms Similarly, former Wash. Const. art. XI, § 7, initially provided: FN8. The original term limit qualification applicable to the state treasurer was deleted by Amendment 31 in 1956. See Laws of 1955, 34th Leg., S.J.R. No. 6, at 1861, approved November 6, 1956. No county officer shall be eligible to hold his office more than two terms in succession. Journal at 720.Ft49 FN9. Wash. Const. art. XI, § 7, was repealed by Amendment 22 in 1948. See Laws of 1947, 30th Leg., H.R.J. No. 4 at 1385, approved November 2, 1948. Delegates at the 1889 Constitutional Convention considered but rejected term limits for other offices. Journal at 589-91. When article III, section 25, was being considered in July of 1889, delegate J.Z. Moore moved to **1374 amend the section to make the governor as well as the treasurer ineligible for a succeeding term. The Convention considered but rejected imposition of a term limit for the office of governor. Id. at 591. In addition, delegate Suksdorf moved "that no other state officer should hold office for more than two terms in succession" Id. The Convention also defeated this motion. Id. 1�204 A similar process took place at the 1889 Convention in addressing article II, section 7. The actual qualifications for state legislators came only after several motions to change the section by convention delegates. The initial draft of that section required a legislative candidate to be a citizen of the United States, a resident of the state Page 10 for two years, and a qualified voter of the district where she or he is chosen; provided, that at the first election every citizen of the United States who was a qualified voter when elected was eligible. A motion by delegate Griffiths to strike the two-year residence qualification failed. A subsequent motion by delegate T.M. Reed to strike language drawing a distinction between the eligibility of candidates at the first and subsequent elections carried. A motion to strike the entire section by delegate P.C. Sullivan lost, and a final motion by delegate Dunbar to "amend so that a member of Legislature must be a citizen of the United States and an elector of the state, leaving out the two-year requirement of residence" carried. Journal at 240, 527-28. Washington's constitutional framers believed qualifications for state constitutional officers were a matter of constitutional, not statutory, concern. They debated citizenship, residency in the state, age, status as qualified elector, and term limits in ultimately arriving at the appropriate qualifications for state constitutional officers. Additionally, the framers did not confer authority on the Legislature to prescribe additional qualifications for such officers. Various constitutional provisions demonstrate the framers knew how to grant, and expressly did grant the Legislature lawmaking authority pertaining to certain constitutional offices. See, e.g., Wash. Const. art. III, H 19-23 (establishing constitutional offices and providing such officers shall perform duties "as may be prescribed by law," thereby expressly delegating to the Legislature the power to fix the officers' duties). See also Wash. Const. art. IV, § 3(a) (amend.25) (setting mandatory retirement age for judges but authorizing Legislature to fix a lesser age). Article III, § 25 itself allows the Legislature to abolish *205 certain offices by statute. The framers were careful to spell out the extent of legislative power over other constitutional offices, indicating that if the framers intended the Legislature to have authority to add to the qualifications of Wash. Const. art. II, § 7, and art. III, § 25, they would have so stated. In addition to the text of the Constitution itself and m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 0178 http:/lweb2.westlaw.cons/print/printstream.aspx?prf t=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 12 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as:134 Wash.2d 188, 949 P.2d 1366) our constitutional history, our case law indicates the qualifications sections of the Washington Constitution are exclusive. In In re Bartz, 47 Wash.2d 161, 287 P.2d 119 (1955). we stated the general rule with respect to constitutional qualifications for office: where the constitution has set forth qualifications for an office, either general or specific, in the absence of an express grant of power to the legislature, there is an implied prohibition against the imposition of additional qualifications by the legislature. Bartz, 47 Wash.2d at 164, 287 P.2d 119. In Bartz, we upheld a statute requiring justices of the peace in cities of over 5,000 population to be attorneys. We noted the specific constitutional qualifications for executive and legislative office and held where the Constitution failed to provide qualifications regarding justices of the peace, the legislature could appropriately fill the vacuum because enactment of such laws would not conflict with any express or implied constitutional provision. We indicated this holding was consistent with the concept of the Washington Constitution as a restriction on legislative powers, and followed from the authority expressly granted the Legislature by Wash. Const. art. IV, § 10 (amend.65) to determine the powers, duties, and jurisdiction of justices of the peace. We also noted laws governing the qualifications of these officers had been in effect for many years at the time the state Constitution was adopted. Bartz, 47 Wash.2d at 166-68, 287 P.2d 119. **1375 Under the general rule in Bartz, qualifications may not be supplemented by a legislative act where qualifications for the state officers have been expressly stated in *206article III, section 25 (regarding executive offices), and article II, section 7 (regarding legislative offices). This general rule has been repeatedly expressed in cases across the United States. 63C Am.Jur.2d Public Officers and Employees § 51, at 494-95 (1997), noting the general rule to be "where the constitution establishes specific eligibility requirements for a particular constitutional office, the constitutional criteria are exclusive." See, e.g., Page 11 Alaskans for Legislative Reform v. State, 887 P.2d 960, 966 (Alaska 1994) (Alaska's Constitution sets forth qualifications for legislative office and term limits may not be added thereto by initiative); Reale v. Board of Real Estate Appraisers, 880 P.2d 1205, 1206-08 (Colo.1994) (collecting cases and noting: "The law is well established that, where a state constitution provides for certain officials and names the qualification for such officers, the legislature is without authority to prescribe additional qualifications.'D; Opinion of the Justices, 240 Mass. 611, 614, 135 N.E. 305 (1922) (where qualifications of voters or officers are fixed by the Constitution the Legislature cannot add to or subtract from them); Pavlak v. Growe, 284 N.W.2d 174, 180 (Minn.1979) (holding fair campaign statute void as imposing an additional qualification for office not specified by the Constitution); Imbrie v. Marsh, 3 N.J. 578, 585-86, 71 A.2d 352, 18 A.L.R.2d 241 (1950) (collecting authorities and noting "The recognized authorities on public law are in accord: `It would seem but fair reasoning upon the plainest principles of interpretation, that when the Constitution established certain qualifications as necessary for office, it meant to exclude all others as prerequisites ... . " "The legislature cannot add to the constitutional qualifications of an officer'."). Accord State ex rel. Powers v. Welch, 198 Or. 670, 672-73, 259 P.2d 112, 114 (1953); Whitney v. Bolin, 85 Ariz. 44, 47, 330 P.2d 1003, 1005 (1958); Thomas v. State ex rel. Cobb, 58 So.2d 173, 184, 34 A.L.R.2d 140 (F1a.1952); State v. Betensen, 14 Utah 2d 121, 378 P.2d 669 (1963); State ex rel. Palagi v. Regan, 113 Mont. 343, 126 P.2d 818, 826 (1942); Gibbany v. Ford, 29 N.M. 621, 225 P. 577, 578 (1924); Cornell v. McAlister, 121 Okla. 285, 249 P. 959, 961 (1926). See also *207People ex rel. Hoyne v. McCormick, 261 111. 413, 423, 103 N.E. 1053, 1057 (1913); League of Women Voters of Mass. v. Secretary of Commonwealth, 425 Mass. 424, 430, 681 N.E.2d 842, 846 (1997) (rejecting the contention that the people by initiative alone can alter the qualifications for such office prescribed by the constitution, the Supreme Judicial Court of Massachusetts opined: "The idea that constitutionally prescribed qualifications may be changed only by constitutional amendment is intuitively sound. "). Contra, League of Women m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C % 9 http://web2.westlaw.conVprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 13 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as: 134 Wash.2d 188,949 P.2d 1366) Voters v. Secretary of State, 683 A.2d 769 (Me.1996) (upholding statute, enacted by initiative, adding to qualifications of state constitutional officers). jicers). Respondents assert the "better -reasoned" decisions of other state courts support the conclusion the qualifications for state constitutional officers listed in the Washington Constitution are not exclusive. Relying on annotations appearing in Legislative Power to Prescribe Qualifications for or Conditions of Eligibility to Constitutional Office, 34 A.L.R.2d 155, 167 (1954), they argue constitutional provisions phrased positively are exclusive lists of qualifications, while those phrased negatively, like Washington's, are minimum requirements. Whether phrased negatively or positively, such requirements are qualifications. The critical issue is whether such qualifications are exclusive. Respondents also argue "Courts interpreting provisions constructed similarly to Washington's have often concluded that additional qualifications can be added by statute." Br. of Resp't at 18-19. They cite four cases from the annotations, Boughton v. Price, 70 Idaho 243, 215 P.2d 286 (1950); Darrow v. People, 8 Colo. 417, 8 P. 661 (1885); State v. Johnson, 33 Del. 334, 138 A. 280 (Super.Ct.1927); and State ex rel. Thompson v. McAllister, 38 W.Va. 485, 18 S.E. 770 (1893), while noting "[i]n candor to the tribunal, however, the annotation also notes a number of cases from other states for the opposite proposition." Br. of Resp't at 19 n. 20. Indeed, we specifically noted the Boughton case and rejected its approach in Bartz. See **1376 Bartz, 47 Wash.2d at 164, 287 P.2d 119 . The other cases are readily distinguishable. Darrow, *208 Johnson: and Thompson involve statutorily -added qualifications to a "statutorily created office" and are thus inapposite. The very annotation upon which respondents rely distinguishes the Legislature's power over statutory offices as opposed to constitutional offices, noting: It is generally considered that the legislature has full control over offices created by its enactment of a statute, whereas its power over constitutional offices is limited; and that it cannot abolish a constitutional office, nor change such an office, except as expressly permitted by the constitution. Page 12 34 A.L.R.2d at 168 (citation and footnote omitted). Indeed, although respondents cite the Johnson case, upholding the Delaware Legislature's addition of qualifications to the statutory office of levy court commissioner, they overlook the annotation's discussion of the later case of Buckingham v. State ex rel. Killoran, 42 Del. 405, 35 A.2d 903 (1944), in which the Delaware court rejected legislatively -imposed additional qualifications on constitutionally created judicial offices stating:We are convinced from all the authorities that the Legislative branch of government has no authority to add further qualifications in connection with a constitutional judicial officer where the qualifications are provided by the Constitution. 34 A.L.R.2d at 188 (quoting Buckingham, 42 Del. at 415, 35 A.2d at 907). This latter pronouncement by the Delaware court is in accord with our approach in Bartz. Intervenors argue the qualifications listed in the Constitution are minimums which may be added to by statute, listing several statutory examples. These statutes do not support their position. RCW 43.10.010 requires the attorney general to be a qualified practitioner of the supreme court of this state. This qualification can be traced to Laws of 1887-88, § 3, at 7, which noted the "attorney general of this Territory shall be learned in the law and shall be a qualified practitioner before the supreme and district courts of this Territory." This then existing qualification was recognized by the Washington Constitution upon *209 its adoption in 1889 via art. XXVII, § 2, which recognized and retained all territorial laws then in effect. See Wash. Const. art. XXVH, § 2; 7►t re Bartz, 47 Wash.2d 161, 167, 287 P.2d 119 (1955); State v. Estill, 55 Wash.2d 576, 582, 349 P.2d 210, 89 A.L.R.2d 1251 (1960) (Mallery, J., concurring) (noting the provisions of Wash. Const, art. XXVH, § 2, and stating: "Territorial laws have a specific constitutional sanction and approval which subsequent state statutes do not have"). Intervenors also claim that judges in Washington are disqualified from office at age 75, citing RCW 2.10.100(3). This statute, part of the RCW Ch. 2.10 provisions regarding the judicial retirement O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C SO 0 httv://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/ 14/2007 Page 14 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as:134 Wash.2d 188,949 P.2d 1366) system, merely echoes a constitutional requirement found at Wash. Const. art. IV, § 3(a) (amend.25). The mandatory retirement age for judges is constitutionally, not statutorily prescribed.FNto FN10. Amicus PLF argues disqualifications from office for felons, minimum age requirements, durational residency requirements, and anti -nepotism requirements are all examples of valid restrictions on candidacies. We express no view on such restrictions, but note the examples cited by PLF do not support a disposition of this case different from the one we announce today. The disqualification for ex -felons is a constitutional directive in Washington, Wash. Const. art. VI, § 3 (amend.83), and qualifications such as minimum age or durational residency requirements were debated as constitutional qualifications for state officers at the 1889 convention. Journal at 589-90. These qualifications do not address the question of whether the state officer qualifications sections in the Washington Constitution are exclusive. - Furthermore, the cases cited by PLF from other jurisdictions are not in conflict with our disposition of this case. See, e.g., Stiles v. Blunt, 912 F.2d 260 (8th Cir.1990) , cert. denied, 499 U.S. 919, Ill S.Ct. 1307, 113 L.Ed.2d 241 (1991) (upholding a Missouri constitutional age requirement for the constitutional office of state representative); Zielasko v. Ohio, 873 F.2d 957 (6th Cir.1989) (upholding an Ohio constitutional age requirement for state judicial office). See also Sununu v. Stark, 383 F.Supp. 1287 (D.N.H.1974), aff'd, 420 U.S. 958, 95 S.Ct. 1346, 43 L.Ed.2d 435 (1975); Chimento v. Stark; 353 F.Supp. 1211 (D.N.H.), afJ"d, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973) (upholding New Hampshire's constitutionally imposed residency requirement for constitutional offices of state senator and governor, respectively). The antinepotism requirement cited by Page 13 PLF is inapposite. It is a Kentucky statutory requirement imposed on the statutorily created Board of Education by the Kentucky General Assembly which has oversight responsibility for education under the Kentucky Constitution. See Chapman v. Gorman, 839 S.W.2d 232, 233-37 (Ky.1992); Ky. Const. § 183; KRS § 160.160. **1377 RCW 29.65.010(4) cited by intervenors is not even a qualification for state office. That statute provides an avenue *210 by which any registered voter may contest any election to public office where the person elected gave or offered a bribe to a voter, inspector, or judge of election for the purpose of procuring his election. RCW 29.65.010(4). This statute addresses unlawful voting irregularites, not qualifications for office. The general rule in Bartz remains the applicable principle as to statutory additions to qualifications for constitutional offices. Where the framers established qualifications for office, did not confer express authority upon the Legislature to add to such qualifications by statute, and specifically debated term limits, rejecting such qualifications for the officers in question, we must conclude that article II, section 7 and article III, section 25 are exclusive. Washington's constitutional framers evidenced an intent to allow broad eligibility for public office in setting the qualifications for state constitutional officers. We believe it the wiser course to adopt the general rule expressed in Bartz and not allow the qualifications for state constitutional officers to be easily altered by the particular politics of the moment. C. Initiative 573 Did Not Amend the Constitution [11)[12] The intervenors claim the Washington Constitution can be amended by initiative. They contend "[e]ven if the Legislature lacks authority to qualify eligibility by term limits, the citizens have such authority through the initiative process." Intervenors Br. at 39. In this case, by its terms, Initiative 573 is a statutory enactment. It was not designed to amend either article II, section 7 or m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.con/printlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 15 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as: 134 Wash.2d 188,949 P.2d 1366) article III, section 25 of our Constitution. Initiative 573 did not and cannot add qualifications to those prescribed in the Washington Constitution for state officers. FN11 FNIL We have often stated the initiative process, as a means by which the people can exercise directly the legislative authority to enact bills and laws, is limited in scope to subject matter which is legislative in nature. Ruano v. Spellmw4 81 Wash.2d 820, 823, 505 P.2d 447 (1973) ; Seattle Bldg. & Constr. Trades Council v. City of Seattle, 94 Wash.2d 740, 748, 620 P.2d 82 (1980) (declaring initiative attempting to achieve something not within its power invalid); see also Leonard v. City of Bothell, 87 Wash.2d 847, 849-50, 557 P.2d 1306 (1976) (noting referendum elections are limited in scope to acts by a governmental body which are legislative in nature). Thus, the initiative power may not be used to amend the Constitution. Ford v. Logan, 79 Wash.2d 147, 156, 483 P.2d 1247 (1971); see also Philadelphia H v. Gregoire, 128 Wash.2d 707, 718, 911 P.2d 389, cert. denied 519 U.S. 862, 117 S.Ct. 167, 136 L.Ed.2d 109 (1996). See also Jefferey T. Even, Direct Democracy in Washington: A Discourse on the Peoples' Powers of Initiative and Referendum, 32 Gonz. L. Rev. 247, 270 (1996-97) (the Washington initiative process is limited to legislative acts and does not include constitutional amendments). *211 CONCLUSION M12 FN12. In light of our disposition of the issue of improper additional qualifications to constitutional offices in violation of the Washington Constitution, we do not address the other arguments by the parties such as the impact of the Law on rights of expression, suffrage, free association, or equal treatment. See Leonard v. City of Page 14 Spokane, 127 Wash.2d 194, 202, 897 P.2d 358 (1995). Recognizing its political significance, we are not swayed in our analysis of Initiative 573 by the policy merits or demerits of term limits for officeholders. The wisdom of term limits is ultimately a policy decision for the voters of this state, through the process for constitutional amendment articulated in Wash. Const. art. XXIII. Whether this Court thinks such choice wise, or results in the best or most effective state constitutional officers, is of no consequence. With or without Initiative 573, the people retain the ultimate power to limit election of incumbents: by the reasoned and determined exercise of their franchise, they may in their discretion evict incumbents from office at the next election. Our review here is limited to the issue of whether the voters acted in compliance with our state's Constitution in expressing their collective will. [13] Initiative 573 improperly attempts to add qualifications to constitutional offices by statute. A statute, whether adopted by the Legislature or the people, may not add qualifications**1378 for state constitutional officers where the Constitution sets those qualifications. We hereby order that a writ of mandamus be issued to the Secretary of State, requiring him to accept declarations of candidacy and nomination papers and certify names of candidates for placement on the ballot, in accordance with existing election laws, notwithstanding Initiative 573. *212 DURHAM, C.J., and DOLLIVER, GUY, JOHNSON and MADSEN, JJ., concur. SANDERS, Justice, dissenting. If the constitution, by its language, purported to exclusively set the qualifications for public office I would yield to that higher law; however, it does not. This court is not above the very constitution which created it, and must always heed its voice. I dissent because the constitution requires no less. The Constitutional Text m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C82 http://web2.westlaw.conn/print/printstream.aspx?pzft=HTMLE&destination=atp&sv--Split... 3/14/2007 Page 16 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as: 134 Wash.2d 188, 949 P.2d 1366) To test the majority's claim that the people may not impose limits upon the terms of their elected public servants we must repair to the words of the constitutional text as "[a]ppropriate constitutional analysis begins with the text and, for most purposes, should end there as well." Malyon v. Pierce County, 131 Wash.2d 779, 799, 935 P.2d 1272 (1997).FN' As Patrick Henry similarly expressed early in our nation's history, "A Constitution, sir, ought to be, like a beacon, held up to the public eye, so as to be understood by every man." Jean Edward Smith, John Marshall. Definer of a Nation 137 (1st ed.1996) (quoting letter dated May 7, 1784, from John Marshall to John Ambler in 1 Marshall Papers 122). FN1. See, e.g., I Joseph Story, Commentaries on the Constitution of the United States § 451 (Melville M. Bigelow ed., 5th ed. 1891): Constitutions are not designed for metaphysical or Iogical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common-sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss. These clauses were worded negatively to prohibit anyone from holding office who does not possess the constitutionally minimum qualifications. Washington constitution article II, section 7, addressing state legislators, provides: *213 No person shall be eligible to the legislature who shall not be a citizen of the United States and a qualified voter in the district for which he is chosen. And Washington constitution article III, section 25, Page 15 addressing all other state officers, provides: No person, except a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office. The majority errs when it concludes negative constitutional language which sets a minimum exclusively sets a maximum as well FNa To set a floor and ceiling, simultaneously, more appropriate language would state "all persons shall be eligible for office who are citizens and qualified voters." But it doesn't.FN3 FN2. Such an exclusive reading of constitution article II, section 7 and article III, section 25, would also require an exclusive reading of article IV, section 17 ( "No person shall be eligible to the office of judge of the supreme court, or judge of a superior court, unless he shall have been admitted to practice in the courts of record of this state, or of the Territory of Washington.") thus placing its exclusive qualifications in direct conflict with article IV, section 31(5) (supreme court may remove or suspend judge or justice "and that person is ineligible for judicial office until eligibility is reinstated by the supreme court."). FN3. One commentator has referred to the construction preferred by the majority as reading "something that is not there." Lloyd Cutler, The Constitutionality of State -Imposed Tenn Limits for Federal Office in The Politics and Law of Term Limits 113 (Edward H. Crane & Roger Pilon eds., 1994) (reading the qualifications clauses to be exclusive " suggests something that is not there. In reality, of course, those clauses do not list qualifications -much less the qualifications. They are worded entirely in the negative. They list some disqualifications. They say that 'no person shall be' eligible to serve unless of at least a certain age, residency, and duration of citizenship."). m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. bav://web2.westlaw.con/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 17 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as:134 Wash.2d 188, 949 P.2d 1366) **1379 State ex rel. Griffiths v. Superior Court, 177 Wash. 619, 33 P.2d 94 (1934) is dispositive. There a Seattle council member challenged a Seattle ordinance which disqualified officeholders from holding any second public office. The council member challenged the ordinance on the grounds it was prohibited by state statute which provided: "no person shall be competent to hold an elective office within the state or any of its political subdivisions, including that of school district, unless he be a citizen of the United States *214 and of the state of Washington and an elector of such political subdivision." Id. at 623, 33 P.2d 94 (citing Rem.Rev.Stat. § 9929). The disqualified council member argued the state statute set the exclusive qualifications for city office, and, accordingly, the city could not add any qualifications. But this court disagreed, holding the negatively worded language meant what it said by setting minimum qualifications and nothing more. Holding the city could add qualifications consistent with the state statute, the court held, "Section 9929 merely provides that no person shall be competent to hold elective office unless he possesses certain qualifications. It does not say that no other requirements shall be prescribed, nor does it say that the political subdivision therein named may not impose restrictions not inconsistent with the statute." Id. at 624. 33 P.2d 94. Griffiths and today's majority read nearly identically worded qualification clauses to an opposite result. As the constitutional language is materially identical to the state statute (no person shall hold office unless ... ), the same outcome is mandated: Such negatively worded qualification clauses set the minimum qualifications but do not limit legislative power to add further qualifications above that minimum. Our starting point is the presumption that the State has the legislative power to act in any given field unless affirmatively restrained by the constitution. State ex rel. Distilled Spirits Institute, Inc. v. Kinnear, 80 Wash.2d 175, 181, 492 P.2d 1012 (1972) ("Mhe legislative power is absolute unless expressly or by fair implication limited in the constitution.") (citing State v. Fair, 35 Wash. 127, Page 16 76 P. 731 (1904)).FN4 FN4. The majority asserts that laws are presumed constitutional until proven unconstitutional "beyond a reasonable doubt." Majority at 1370. I question whether this standard is applicable to the legal question before us. Indeed, "beyond a reasonable doubt" is generally reserved for the guilt of an accused and is used because the accused is deemed innocent until proven the opposite. However, there is no sensible reason to cant' over the same factual standard to the constitutionality of legislation. Whether legislative power has been abused should be a legal question reviewed de novo as any other legal question. Compare Brown v. Multnomah County Dist. Court, 280 Or. 95, 570 P.2d 52, 56 n. 6 (1977). However, were we to measure the majority by its own yardstick, it would most surely fall short, as there are many reasons to doubt the correctness of its view. If our constitution does not affirmatively limit the *215 legislature's, or the people's, ability to set reasonable qualifications for office, the legislature's authority to do so is simply not so limited. Such was the generally recognized rule of law at the time of statehood: "where the constitution has made some provision [for qualifications for office], but not exclusive ones, the legislature may add such others as are reasonable and proper." Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers § 66 (1890). Cf. State ex rel. Buttz v. Marion Circuit Court, 225 Ind. 7, 72 N.E.2d 225, 230, 170 A.L.R. 197 (1947) ("It has been held universally that in the absence of constitutional restrictions there may be qualifications imposed by the legislature for holding public office.") (citing Floyd R. Mechem, supra, §§ 64-68 (1890)). Many of our framers were lawyers and appreciated the nuances of language.FN5 In matters of constitutional construction, courts prefer a construction m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C84 httn://web2.westlaw.cona/print/printstrearrt. aspx?prft=E TMLE&destination=atp&sv=Split... 3/14/2007 Page 18 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as: 134 Wash.2d 188,949 P.2d 1366) FN5. For example, Justice Theodore L. Stiles, elected to the Washington Supreme Court on the same day the constitution was popularly ratified, played a leading role in the constitutional convention and was reputed as a scholar and constitutional authority. Charles H. Sheldon, The Washington High Bench, A Biographical History of the State Supreme Court, 1889-1991, at 327 (1992). which will render every word operative, rather than one which may make some words idle and nugatory. **1380 This rule is applicable with special force to written constitutions, in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding with the immense importance of the powers delegated, leaving as little as possible to implication. Thomas M. Cooley, A Treatise on the Constitutional Limitations 72 (6th ed. 1890) (footnotes omitted). This analysis could and should end here, with the conclusion that our negatively worded qualification clauses FN6 do not forbid legislative imposition of further qualifications, *216 including term limits. We know that because the text says that FN7 FN6. Perhaps we should refer to them as " disqualification clauses" instead as they really set conditions that disqualify one from office. FN7. Westerman v. Cary, 125 Wash.2d 277, 288, 892 P.2d 1067 (1994) ("We will presume the language [of our constitution] carries its ordinary and popular meaning, unless shown otherwise."). Yet the majority ignores the plain meaning of the constitutional text embarking instead upon a journey back in time to the constitutional convention in a vain effort to give the unambiguous words of our constitution another meaning. Majority at 1373. While such is ultimately unproductive,FNs notwithstanding, I posit, our Page 17 constitutional history does nothing to alter the plain meaning of the constitutional clauses before us. This is necessarily so because it is not the subjective intent of our framers which matters but the plain meaning of the words ratified by the public in 1889. State v, Lister, 91 Wash. 9, 156 P. 858 (1916); Malyon v. Pierce County, 131 Wash.2d 779, 799 n. 31, 935 P.2d 1272 (1997); Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L.Rev. 491, 510 (1984). The framers proposed, but the public disposed. FN8. "Possible or even probable meanings, when one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere." Thomas M. Cooley, A Treatise on the Constitutional Limitations 70 (6th ed. 1890). Constitutional History At the time of the constitutional convention in 1889 Washington Territory was governed by the Organic Act. Under the Organic Act the Washington Territorial legislature was directed to set the qualifications for voting and holding office. 10 Stat. ch. 90, p. 172, § 5 (1853). The Organic Act, however, set the minimum qualifications by requiring office holders and voters alike be United States citizens at least 21 years of age. Id. § 5. The Organic Act provided: the qualifications of voters and of holding office at all subsequent elections shall be such as shall be prescribed by *217 the Legislative Assembly: Provided, That the right of suffrage and of holding office shall be exercised only by citizens of the United States above the age of twenty-one years.... Id. § 5. Thus, in the beginning, qualifications for voting and office eligibility were treated the same: the minimum was set by the Organic Act, the remainder by the legislature. The new constitution, however, altered the scheme by treating qualifications for © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. tc 8,15 http://web2.westlaw.comlprintlpiintstream.aspx?prft=HTNE E&destination=atp&sv=Split... 3/14/2007 Page 19 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as: 134 Wash.2d 188,949 P.2d 1366) voting differently from qualifications for holding office. By unmistakable language voting qualifications were set exclusively; however, the new constitution retained the prior system's treatment of qualifications for office by setting constitutional minimums for eligibility, leaving the legislature free reign to set all remaining qualifications. The voting qualification enshrined in the new constitution affirmatively stated: All male persons of the age of twenty-one years or over, possessing the following qualifications, shall be entitled to vote at all elections .... I[[[[[FNs] FN9. The same provision, article VI, section 1, currently reads: Qualifications of Electors. All persons of the age of eighteen years or over who are citizens of the United States and who have lived in the state, county, and precinct thirty days immediately preceding the election at which they offer to vote, except those disqualified by Article VI, section 3 of this Constitution, shall be entitled to vote at all elections. Constitution article VI, section 3, currently provides: Who Disqualified. All persons convicted of infamous crime unless restored to their civil rights and all persons while they are judicially declared mentally incompetent are excluded from the elective franchise. Const. 1889 art. VI, § 1. Thus, article VI, section 1, affirmatively sets the exclusive qualifications for voting. **1381 The legislature could not, in light of this language, impose additional qualifications on voter eligibility. Noticeably contrasting language was used to address qualifications for office. The qualification clauses for office provides, "No person *218 shall be eligible to the legislature who shall not be a citizen of the United States and a qualified voter in the district for which he is chosen' Page 18 (Const. art. II, § 7) and "No person, except a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office " (Const. art. III, § 25). Unfortunately the majority does not grasp the importance of the difference in language used in these parallel settings, purblind asserting the meaning is the same. Thus, the majority violates the cardinal rule of construction which holds, " Where different language is used in the same connection in different parts of a statute, it is presumed that a different meaning was intended." State v. Roth, 78 Wash.2d 711, 715, 479 P.2d 55 (1971). Exclusive language was employed in the voter qualification clause, evidencing the qualifications set forth therein were intentionally exclusive; however, negative language was used in the office -holding qualification clause. The difference is obvious. But the majority does not account for it. Contemporary authorities to our constitutional ratification were well able to discern the difference between negative and exclusive language; "Where the constitution has prescribed the qualifications, the possession of which shall entitle an individual to hold office under the state, it is not within the power of the legislature to change or add to them.... A negative provision, however, as that a person not an elector shall not be appointed or elected to an office in the state, does not preclude the legislature from adding other reasonable and proper requirements." Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers § 96 (1890). Case law of the time, and thereafter, agreed. For example, the Ohio high court held in 1876 that negative phraseology in its constitutional qualifications clause did not preclude the legislature from enacting reasonable additional qualifications. State ex rel. Atty. Gen. v. Covington, 29 Ohio St. 102, 117-18 (1876). The negatively worded language there was the same as ours. Id. at 117 (" No person shall be elected or appointed to any office in this *219 state, unless he possesses the qualifications of an elector.") (quoting Ohio Const. art. XV, § 4). The Ohio court there upheld a © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 20 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as: 134 Wash.2d 188,949 P.2d 1366) statute requiring all officeholders must be residents for three years and be able to read and write. Id. at 117. Holding the negatively worded constitutional language was not offended, the court wrote: It is apparent that this statute is not in conflict with the terms of this constitutional provision. It does not authorize the appointment of a person who is not an elector. The express provision of the constitution is, that a person not an elector shall not be elected or appointed to any office in this state. Now, unless the clear implication is that every person who has the qualifications of an elector shall be eligible to any office in this state, there is no conflict between the statute and the constitution. I do not believe that such implication arises..... If the framers of the constitution had intended to take away from the legislature the power to name disqualifications for office, other than the one named in the constitution, it would not have been left to the very doubtful implication which is claimed from the provision under consideration. The power under the general grant being ample and certain, a statute should not be declared void because in conflict with an alleged implication, unless such implication be clear and indubitable. Id. at 117-18. In 1883 the South Carolina Supreme Court followed that same distinction. **1382State v. Williams, 20 S.C. 12, 17 (1883). After our constitution was adopted, several more courts elaborated. For example, the North Carolina high court interpreted a constitutional clause which stated, "Every voter in North Carolina, except as in this article disqualified, shall be eligible to office" to be exclusive while observing that if the constitution were worded negatively, as is Washington's, then the legislature could add qualifications. State ex rel. Spruill v. Bateman, 162 N.C. 588, 591, 77 S.E. 768 (1913) (quoting N.C. Const. art. VII, § 7). The North Carolina Supreme Court therein stated the obvious: "It is true that where a Constitution provides that ' no person shall be elected or appointed to any office unless he possesses*220 the qualifications of an elector,' the Legislature can prescribe additional qualifications." Id at 591, 77 S.E. 768. The New Mexico Supreme court followed suit soon Page 19 thereafter in Gibbany v. Ford, 29 N.M. 621, 225 P. 577, 578 (1924) (interpreting N.M. Const. art. VII, § 2: "Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any public office in the state except as otherwise provided in this Constitution."). The court went to the heart of the issue and held that the legislature cannot add qualifications "because the constitutional provision is not a negative one, providing that no person shall be eligible to hold an office unless he possess certain qualifications, as is often the case in other states, but is a positive provision, giving the right to every person possessing the qualifications therein set forth to hold office." Id. 225 P. at 578. Drafters of our constitution had every reason to be well aware of the difference between negative and exclusive phraseology. In 1889, when our constitution was drafted, several states had recently included exclusive qualifications for holding office in their constitutions. For example, North Carolina's second constitution, written in 1868, included a provision clearly stating that citizenship and voter status shall be the sole requirements for public office and that the legislature cannot add qualifications thereto. N.C. Const. art. VI, § 6 (" Every qualified voter in North Carolina who is 21 years of age, except as in this Constitution disqualified, shall be eligible for election by the people to office.") North Carolina inserted this language because of fears the legislature might enact laws to deprive a certain group access to office.FNta Several other state constitutions used *221 similarly exclusive language.FNtt Ours did not but our majority rewrites it under the guise of construing it. FN10. In State ex rel. Spruill v. Bateman, 162 N.C. 588, 592, 77 S.E. 768 (1913) the court explained: The purpose of this peculiar phraseology in the North Carolina Constitution is well known by every one. A newly emancipated element had been admitted to suffrage, and it was rightly anticipated that at some future day there might be a majority in the General Assembly m 2007 Thomson/West. No CIaim to Orig. U.S. Govt. Works. C 87 http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 21 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as: 134 Wash.2d 188, 949 P.2d 1366) unfavorable to their holding office, so the provision was made that "every voter," except as disqualified by the Constitution, should be eligible "to office." FNII. Conn. Const. art VI, § 10 ("Every elector who has attained the age of eighteen years shall be eligible to any office in the state ... except in cases provided for in this constitution.'); Minn. Const. art. VII, § 6 ("Every person who by the provisions of this article is entitled to vote at any election and is 21 years of age is eligible for any office elective by the people in the district wherein he has resided 30 days previous to the election, except as otherwise provided in this constitution...:'); N.M. Const. art. VII, § 2 ("Every citizen of the United States who is a legal resident of the state and is a qualified elector therein, shall be qualified to hold any elective public office except as otherwise provided in this constitution."); S.C. Const. art. XVII, § IA ("Every qualified elector is eligible to any office to be voted for, unless disqualified by age, as prescribed in this Constitution."). The majority makes much of the framers' debate on possibly inserting mandatory term limits into the constitution. Majority at 1373-1374. The fact is the convention debated, but decided not to make term limits a constitutional mandate. The resulting constitution suggests the framers thought enough of tern limits to discuss them while simultaneously rejecting the proposition that the legislature cannot impose reasonable term limits in the future. The resulting negative language in the qualifications clause perhaps represents a compromise on the term limits debate to leave the legislature free to impose and remove term limits as it **1383 saw fit by simple legislative enactment. If the drafters intended to restrain legislative power from imposing additional disqualifications, such as term limits, they could have easily proposed an exclusive qualification provision, yet they did not. Other History Page 20 The Washington legislature has always acted consistent with the view that the negatively worded qualification clauses mean what they say and do not restrain the legislature from adding reasonable qualifications.FNt'- The majority*222 acknowledges one example, the statutory requirement that the attorney general be a qualified practitioner before the supreme court. Majority at 1376 (citing RCW 43.10.010). FN12. At the time our constitution was ratified, legislatures routinely set additional qualifications. See, e.g., Thomas M. Cooley, supra, at 748 n. 1 (discussing in the abstract the rule that one must be a qualified voter to hold office Cooley concluded, "The question is not very important, as State constitutions or statutes generally lay down that rule, in some cases adding further requirements.") (emphasis added). The attorney general is a constitutional executive officer. Const. art. III, § 1. The constitution imposes no qualifications on the attorney general other than those minimums found in the provision setting the minimum for all state officers, the same clause at issue today. Const. art. III, § 25. The constitution sets no requirement that the attorney general be qualified to practice before this or any court. Yet the legislature imposed the qualification as an additional minimum requirement for holding that office. The additional qualification legislatively imposed on the attorney general is irreconcilable with the majority's position that the legislature may never add to the constitutional minimum qualifications. Yet the majority gives its stamp of approval to this additional qualification and that statute remains in force today. See RCW 43.10.010. The only explanation offered for this incongruous result by the majority is the fact that the territorial legislature enacted that law one year prior to the constitutional convention. Majority at 1376. However by the majority's logic, the newly adopted constitution would have nullified this law, like any other prior inconsistent statute as Const. art. XXVII, § 2, only purports to retain territorial laws "which are not repugnant to this Constitution.... © 2007 Thomson/'West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.com/printlprintstreai n.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 22 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as: 134 Wash.2d 188, 949 P.2d 1366) A more probable view is the legislature passed a qualification law contemporaneously with the drafting of the constitution because it viewed the addition of legislative qualifications constitutionally consistent. Cf. Malyon v. Pierce County, 131 Wash.2d 779, 799, 935 P.2d 1272 (1997) (fact that religious societies provided most social services to the public at time of constitutional convention *223 indicates the state establishment clause is not offended by use of volunteer chaplains) YN13 FN13. See also In re Bartz, 47 Wash.2d 161, 168, 287 P.2d 119 (1955) ( "The legislature has consistently acted on the assumption that it had this power [to establish qualifications for justices of the peace], both before and after the adoption of the constitution.... `Where a particular construction has been generally accepted as correct, and especially when this has occurred contemporaneously with the adoption of the constitution, and by those who had opportunity to understand the intention of the instrument, it is not to be denied that a strong presumption exists that the construction rightly interprets the intention.' 1 Cooley's Constitutional Limitations (8th ed.) 144 (1927)."). The practice of legislative additions to qualifications for office has continued without abatement. For example, the code of 1891 reveals a statute declaring various officeholders ineligible to hold the constitutional office of justice of the peace. Hill's Gen.Stat. (1891) vol. I, § 303 entitled "Who eligible to office of justice" ("(Mor shall any sheriff, coroner, or clerk of the superior court be eligible to or hold such office."). See also RCW 29.65.010(4) (disqualifying from any elected office anyone who bribes a voter or election judge during his campaign); RCW 29.15.050 (to be eligible for public office, candidates must file fee of one -percent of annual salary of office sought). Such legislative acts are clearly additional qualifications inconsistent with the majority's position. Or more accurately; the majority's Page 21 position is inconsistent with long-standing practice. See Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L.Rev. 491, 521 **1384 (1984) (early legislative construction of a constitutional provision "should be given great weight, especially if it extended over a long period of time."). The majority, however, ignores the text and history, instead focusing on the dicta appearing in a single case, In re Bartz, 47 Wash.2d 161, 287 P.2d 119 (1955). Majority at 1374. In Bartz the legislature enacted a statute providing no one is eligible to hold the office of justice of the peace except an attorney. Laws of 1951, ch. 156, § 2. Bartz upheld the legislatively added qualification on the ground the legislature had always set such qualifications and because judicial *224 officers were not subject to the executive or legislative qualifications clauses. However, then the court continued to enunciate a seemingly contradictory position that the legislature cannot add to qualifications for constitutional offices. Young v. Konz, 91 Wash.2d 532, 542, 588 P.2d 1360 (1979) characterized the Bartz holding as one upholding "the power of the legislature to prescribe qualifications for judges of justice courts." That which is beyond, or not necessary to, this holding is dicta.PNta Dicta is not controlling authority and need not be followed. State v. Potter, 68 Wash.App. 134, 150 n. 7, 842 P.2d 481 (1992). FN14. Bartz's statement that qualifications are exclusive is dicta in light of the court's ultimate holding that the legislature appropriately prescribed reasonable qualifications for constitutional judicial officers. In light of that holding, any statement that the legislature may not impose qualifications on other constitutional officers is unnecessary. See Pedersen v. Klinkert, 56 Wash.2d 313, 317, 320, 352 P.2d 1025 (1960) (dicta is language not necessary to the decision in a particular case). By text, precedent, and practice, negatively phrased 0 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http:/lweb2.westlaw.com/printlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 Page 23 of 27 949 P.2d 1366 134 Wash.2d 188,949 P.2d 1366 (Cite as: 134 Wash.2d 188,949 P.2d 1366) qualification clauses do not restrict legislative imposition of additional reasonable qualifications for office. Other Jurisdictions While the majority strings citations to support its position of exclusivity (Majority at 1375-1376), in truth courts have not been uniform in their treatment of term limits. In fact, legislative term limits are currently the law in some 20 American states whereas only one court has stricken term limits as a violation of a state qualification clause. Such is a far different picture from that which the majority paints. First, we must distinguish the United States Supreme Court case which struck down state imposed term limits for federal congressional officers. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995). Thornton is a case about federalism and, as such, has very limited applicability to our state law inquiry. Thornton involved an Arkansas state constitutional amendment which purported to impose term limits on Arkansas' *225 congressional delegation. The divided 5-4 Thornton court held neither Arkansas nor any other state could impose term limits on federal officers, however, not because of the language of the federal qualifications clauses but because the states lack power to alter the qualifications for any federal offices for reasons of federal supremacy.FNIS The Thornton majority reasoned allowing the states to alter federal qualifications would disrupt the uniform national government FNtG The majority also based its holding on the particular intent of the national framers and the peculiar attendant**1385 constitutional history.FN17 The Thornton dissent argued that the original vision of federalism left the states the power to set the qualifications of their federal representatives. Id. at 845, 115 S.Ct. at 1875 (Thomas, J., dissenting, joined by Rehnquist, C.J., and O'Connor and Scalia, JJ.). Thornton has no bearing on term limits for state officers and leaves state term limits untouched. Page 22 FN15. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 803, 115 S.Ct. 1842, 1855, 131 L.Ed.2d 881 (1995) ("each Member of Congress is 'an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states.... Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people.' Representatives and Senators are as much officers of the entire union as is the President. States thus `have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a president ..... ") (quoting also I Joseph Story, Commentaries on the Constitution of the United States § 627 (3d ed. 1858)). FN16. U.S. Term Limits, Inc., 514 U.S. at 783, 115 S.Ct. at 1845 ("Allowing individual States to adopt their own qualifications for congressional service would be inconsistent with the Framers' vision of a uniform National Legislature representing the people of the United States."). Cf. Foster v. Love, 522 U.S. 67, 118 S.Ct. 464, 139 L.Ed.2d 369 (1997) (unanimous court struck down Louisiana state statute which provided for federal congressional elections to be held in Louisiana in October because the states cannot alter- the uniformity of federal elections). FN17. U.S. Term Limits, Inc., 514 U.S. at 800-01, 115 S.Ct. at 1853-54 (after reviewing the constitutional history the majority "conclude [d] that the Framers intended the Constitution to be the exclusive source of qualifications for Members of Congress."). Turning to term limits imposed upon state officers and judicial treatment thereof, it is interesting to note many states have historically imposed term limits on their *226 governors without constitutional invalidation. FNts The controversy © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. IC9.0 http://web2.westlaw.conelprinttprintstream.aspx?prft=HTM LE&destination=atp&sv=Split... 3/14/2007 Page 24 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as:134 Wash.2d 188,949 P.2d 1366) over term limits gathered force, however, after the states began to impose limits on legislators in 1990. Currently, 14 states have imposed term limits on state officers by state constitutional amendment, although the relevant constitutions generally allow constitutional amendment directly by the people through initiative without legislative approval. Karen Hansen, Living Within the Limits, in State Legislatures 15 (June 1997). FN19 No court has stricken term limits in these states FN20 and, where addressed, term limits have been upheld as valid expressions of popular will etv21 FN18. See Miyazawa v. City of Cincinnati, 825 F.Supp. 816, 821 (S.D.Ohio 1993) (noting that over 20 states have term limits for governors), affd, 45 F.3d 126 (6th Cir.1995). FN19. Those states include Arizona, Arkansas, California, Colorado, Florida, Louisiana, Michigan, Missouri, Montana, Nevada, Ohio, Oklahoma, Oregon, and South Dakota. FN20. The Ninth Circuit recently upheld California's term limits law, which imposes a specific lifetime term limits ban on state legislators and certain state officers, as consistent with federal constitutional requirements. Bates v. Jones, 131 F.3d 843 (9th Cir.1997). FN21. See, e.g., U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349, 359-60 (1994), affd, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995); Legislature of State of Cal. v. Eu, 54 Cal.3d 492, 816 P.2d 1309, 286 Ca1.Rptr. 283 (1991), cert. denied, 503 U.S. 919, 112 S.Ct. 1292, 117 L.Ed.2d 516 (1992); Nevada Judges Assn v. Lau, 112 Nev. 51, 910 P.2d 898 (1996). In addition to the 14 states just mentioned, six states, including Washington, have imposed term limits by direct legislative enactment. Idaho Code § 34-907; Mass. Gen. Laws ch. 53, § 48; Page 23 Me.Rev.Stat. Ann. tit. 21-A, § 553-54; Utah Code Ann. § 20A-10-201; Wyo. Stat. Ann. § 22-5-103. FN22 Of those six states, court challenges have been made in only two, Massachusetts and Maine, besides Washington. FN23 The Massachusetts court struck down term limits while the Maine court upheld them. Thus, there is one case *227 on each side of the debate, although, between the two, the Massachusetts case is of limited persuasiveness because of the language of its state constitution whereas the Maine case is directly on point. FN22. In all of the six term limits were popularly imposed by initiative except in Utah where the legislature itself passed term limits. FN23. The Alaska high court ruled, by advisory opinion, that the voters would not be able to enact term limits by initiative. Alaskans for Legislative Reform v. State, 887 P.2d 960 (Alaska 1994). The voters, however, never tried. Massachusetts struck down the popularly enacted term limits on the ground the people lack the power to alter qualifications for state office. League of Women Voters v. Secretary of Com., 425 Mass. 424, 681 N.E.2d 842 (1997). However, the peculiar language of the Massachusetts constitution is exclusive in form. Indeed, the Massachusetts high court relied in part on article 9 of its state constitution in reaching its decision. Id. 681 N.E.2d at 844. That constitutional provision declares constitutional qualifications to be exclusive: "all the inhabitants of this Commonwealth, having such qualifications as they shall establish by their frame of government,l[[[[Frt241 have an equal right ... to be elected, for public employments." Id. at 844 n. 5 (quoting article 9 of the Massachusetts Declaration of Rigbts). FN24. As the court noted, "The frame of government is Part II of our Constitution." League of Women Voters, 681 N.E.2d at 844. O 2007 ThomsoniWest. No Claim to Orig. U.S. Govt. Works. � -L http://web2.westlaw.comlprinttpiintstream.aspx?ptft=HTNILE&destination=atp&sv=Split... 3/ 14/2007 Page 25 of 27 949 P.2d 1366 134 Wash.2d 198, 949 P.2d 1366 (Cite as:134 Wash.2d 188, 949 P.2d 1366) More on point is the Maine case where the relevant constitutional language is materially **1386 similar to Washington's. League of Women Voters v. Secretary of State, 683 A.2d 769 (1996). There, as here, the people of Maine enacted term limits by popular initiative. The initiative was challenged on the ground it conflicted with Maine's negative constitutional qualifications clause language which, like Washington's, provides "No person shall be a member of the House of Representatives" (id at 773 n. 8 (quoting Me. Const. art. IV, pt. 1, § 4)) " unless [the person] shall, at the commencement of the period for which [the person] is elected, have been 5 years a citizen of the United States, have arrived at the age of 21 years...: ' (Me. Const. art. IV, pt. 1, § 4). The Maine Supreme Court concluded the negatively worded constitutional language did not restrain the people from legislatively imposing term limits and, in the absence of any such restraint, the people .were free to enact term limits. Id at 773 n. 8. The Maine *228 Supreme Court therefore upheld the term limits. Id. at 773 ("We therefore answer Question One by concluding that limits on the number of consecutive terms that may be served by Maine legislators may be enacted by legislation."). The Maine case cannot be distinguished from our own. Are Term Limits Consistent with the Spirit of Our Constitution? While dispositively concluding the letter of the constitution does not prohibit term limits by initiative, I further posit neither is the spirit of our constitution offended by same. The tenor of various clauses such as Const. art. I, § 1 ("All political power is inherent in the people, and governments derive their just powers from the consent of the governed ...:'), the free elections clause (Const art. I, § 19) ("All Elections shall be free and equal, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.') and the overall structure of our constitutional republic support this view. If anything the very nature of our constitution is to limit government. To strike term limits because they interfere with our constitutional system is Page 24 indeed anomalous as term limits are overtly a restraint on career politicians and serve as an indirect further check on the legislative branch.FN25 FN25. Legislature of State of Cal. v. Eu, 54 Cal.3d 492, 816 P.2d 1309, 1329, 286 Ca1.Rptr. 283 (1991) ("In sum, it would be anomalous to hold that a statewide initiative measure aimed at 'restor[ing] a free and democratic system of fair elections,' and 'encourag[ing] qualified candidates to seek public office' (Cal. Const., art. IV, § 1.5), is invalid as an unwarranted infringement of the rights to vote and to seek public office.'). By design, Washington's legislature has always been a citizen legislature comprised of people wedded to other professions who gather but a short time annually or biannually about the people's business. As such these legislators, more than most, are "called for the most part from pursuits of a private nature, continued in appointment for a short time," and then return to private life. The Federalist No. 62, at 419 (James Madison) (Jacob E. Cooke ed., *229 1961). Term limits, which ensure our legislators remain citizen legislators, FN26 not career state employees, are generally consistent with this constitutional framework and specifically consistent with our citizen's historically populist mistrust of the legislature.FN21 That this legacy remains in the minds of our citizens perhaps explains the popular adoption of the act before us today. FN26. See term limits law, Laws 1993, ch. 1, § 1(1) ("The people will best be served by citizen legislators who are subject to a reasonable degree of rotation in office[.]"). FN27. See Lebbeus J. Knapp, The Origin of the Constitution of the State of Washington, 4 Wash. Historical Q. 227, 228, 250 (Oct.1913). Additionally, there is a claim that such term limits infringe on the right to free elections. Such a claim C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. httn://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/ 14/2007 Page 26 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as:134 Wash.2d 198,949 P.2d 1366) was rejected outright with respect to California's absolute prohibition in Bates v. Jones, 131 F.3d 843, 846-47 (9th Cir.1997) ("[T]erm limits on state officeholders is a neutral candidacy qualification, such as age or residence, which the State certainly has the right to impose."). The free election clause is intended in part to ensure "the door of this part of the Federal Government, is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty**1387 or wealth, or to any particular profession of religious faith." The Federalist No. 52, at 355 (James Madison) (Jacob E. Cooke, ed.1961). Term limits are intended precisely to minimize the power of incumbency and open the door to outsiders who might seek office. The logic of such limits was recently recognized by the United States Supreme Court: "[S]uch limits may provide for the infusion of fresh ideas and new perspectives, and may decrease the likelihood that representatives will lose touch with their constituents." U.S. Tern: Limits, Inc. v. Thornton, 514 U.S. 779, 837, 115 S.Ct. 1842, 1871, 131 L.Ed.2d 881 (1995). Indeed, these term limits were enacted upon the realization that Washington's "[e]ntrenched incumbents have an inordinate advantage in elections because of their control of campaign finance laws and gerrymandering of electoral districts; [and that] [e]ntrenched incumbency has discouraged qualified citizens from seeking public office." *230 Laws of 1993, ch. 1, § 1(3), (4) (Initiative Measure No. 573). Term limits are arguably necessary to break the incumbency cycle. Constitutional Reasonableness of These Term Limits Concluding term limits are not prohibited by the qualifications clauses or by our constitutional framework, we might further inquire if they are reasonable. Indeed, to be valid, every law must be reasonable in the constitutional sense. Lawton v. Steele, 152 U.S. 133, 137, 14 S.Ct. 499, 501, 38 L.Ed. 385 (1894). Such applies with equal force to legislatively imposed qualifications for office and ballot access measures. Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). Mechem, supra, § 66 (legislatively imposed Page 25 qualifications for office must be "reasonable and proper.'; In re Bartz, 47 Wash.2d 161, 168, 287 P.2d 119 (1955) (upholding legislatively imposed qualification that justices of the peace be attorneys because such is "reasonable"); State ex rel. Buttz v. Marion Circuit Court, 225 Ind. 7, 72 N.E.2d 225, 170 A.L.R. 187 (1947) ("The fact, however, that the Legislature may fix qualifications for holding public office ... does not mean that in the fixing of such qualifications ... [they must] not be arbitrary, they must be reasonable and based upon substantial grounds which are natural and inherent in the subject matter of the legislation."). The classic three -prong test of reasonableness would ask: (1) do term limits have a valid public purpose, (2) do they use means calculated to achieve that purpose, and (3) are they unduly oppressive upon individuals? Presbytery of Seattle v. King County, 114 Wash.2d 320, 330-31, 787 P.2d 907 (1990) (citing Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894)), cent. denied, 498 U.S. 911, 111 S.Ct. 284, 112 L.Ed.2d 238 (1990). Term limits have the valid public purpose of imposing a check on elected officeholders. They are intended to promote access to office by forcing incumbents to step aside to make way for nonincumbents. See Laws of 1993, ch..1, *231 § 1(7) (Initiative Measure No. 573) ("The people of Washington have a compelling interest in preventing the self-perpetuating monopoly of elective office by a dynastic ruling class"). Term limits clearly promote this end. Nor are term limits unduly oppressive upon the individual incumbents who are "limited out" since it is a privilege to serve through an office of public trust, not a private right which one can conceivably be denied by an unduly oppressive government. Plaintiffs' First and Fourteenth Amendments rights are not violated by term limits. Bates v. Jones, 131 F.3d 843, 846-47 (9th Cir.1997). Nor are Washington's term limits absolute. Compare Bates v. Jones (upholding California lifetime term limits ban against constitutional challenge). On the contrary, they merely force incumbents to step aside for a short period. A © 2007 Thomson/West, No Claim to Orig. U.S. Govt. Works. C93 http://web2.westlaw.corn/printlprintstream.aspx?prft=HTN4LE&destination=atp&sv=Split... 3/14/2007 Page 27 of 27 949 P.2d 1366 134 Wash.2d 188, 949 P.2d 1366 (Cite as: 134 Wash.2d 188,949 P.2d 1366) legislator may serve six years in the state house, eight years in the senate and then after a six year hiatus can serve another straight eight years in the senate. RCW 44.04.015. While the enactment may practically bar one from succession to office, technically, if the incumbent is sufficiently popular, he may still win by write-in. The fact that a law uses restrictive rather than wholly prohibitory language also suggests the law is "reasonable." **1388Ralph v. City of Wenatchee, 34 Wash.2d 638, 644, 209 P.2d 270 (1949). That these limits are reasonable the majority does not dispute. Today, six -votes on this court are the undoing of the 1,119,985 votes that Washingtonians cast at the polls in favor of term limits. In the final analysis term limits must be upheld because the constitution does not prohibit it. I therefore dissent. ALEXANDER, J., concurs. Wash.,1998. Crerberding v. Munro 134 Wash.2d 188, 949 P.2d 1366 Briefs and Other Related Documents (Back to top) • 1997 WL 33824888 (Appellate Brief) Petitioners' Reply Brief (Sep. 15, 1997) Original Image of this Document with Appendix (PDF) • 1997 WL 33824884 (Appellate Brief) Respondents'/Intervenors' Brief (Aug. 15, -1997) Original Image of this Document (PDF) • 1997 WL 33824886 (Appellate Brief) Brief of Respondents (Aug. 15, 1997) Original Image of this Document with Appendix (PDF) • 1997 WL 33824890 (Appellate Brief) Brief Amicus Curiae of Pacific Legal Foundation in Support of Respondents (Aug. 12, 1997) Original Image of this Document (PDF) • 1997 WL 33824880 (Appellate Brief) Petitioners' Opening Brief (Jul. 11, 1997) Original Image of this Document with Appendix (PDF) END OF DOCUMENT m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Page 26 http://web2.westlaw.comlprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 3/14/2007 EXHIBIT E lCv.M 6928.DM;l/OM.000W/} 095 Page 2 of 84 115 S.Ct. 1842 Page 1 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) P, Briefs and Other Related Documents U.S. Term Limits, Inc. v. ThomtonU.S.Ark.,1995. Supreme Court of the United States U.S. TERM LIMITS, INC., et al., Petitioners, V. Ray THORNTON et al. Winston BRYANT, Attorney General of Arkansas, Petitioner, V. Bobbie E. HILL et al. Nos. 93-1456, 93-1828. Argued Nov. 29, 1994. Decided May 22, 1995. Action was brought challenging amendment to the Arkansas Constitution which precluded persons who had served certain number of terms in the United States Congress from having their names placed on the ballot for election to Congress. The Circuit Court found that the provision violated the United States Constitution. The Arkansas Supreme Court affirmed, 316 Ark. 251, 872 S.W.2d 349. On certiorari, the Supreme Court, Justice Stevens, held that: (1) states may not impose qualifications for offices of the United States representative or United States senator in addition to those set forth by the Constitution; (2) power to set additional qualifications was not reserved to the states by the Tenth Amendment; and (3) state provision is unconstitutional when it has likely effect of handicapping a class of candidates and has the sole purpose of creating additional qualifications indirectly. Affirmed. Justice Kennedy filed a concurring opinion. Justice Thomas filed a dissenting opinion in which Chief Justice Rehnquist, Justice O'Connor, and Justice Scalia joined. West Headnotes [11 United States 393 "A 393 United States 393I Government in General 393k7 Congress 393k7.1 k. In General. Most Cited Cases Allowing individual states to adopt their own qualifications for congressional service would be inconsistent with framers' vision of uniform national legislature representing the people of the United States. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3. (2) United States 393 C-7.1 393 United States 3931 Government in General 393k7 Congress 393k7.1 k. In General. Most Cited Cases With respect to Congress, framers of the Constitution intended the Constitution to establish fixed qualifications in the sense that they may not be supplemented by Congress. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3. [31 States 360 C=-4.16(2) 360 States 360I Political Status and Relations 360I(A) In General 360k4.16 Powers of United States and Infringement on State Powers 360k4.16(2) k. Federal Laws Invading State Powers. Most Cited Cases Powers retained by the states under the Tenth Amendment proceed, not from the people of America, but from the people of the several states and they remain, after adoption of the Constitution, what they were before, except so far as they may be abridged by that instrument. U.S.C.A. Const-Amend. 10. (41 States 360 C---4 360 States © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 09G http://web2.westlaw.comlprintlprintstream. aspx?sv=Split&rlti=l &prft=HTMLE&n=18&L.. 3/14/2007 Page 3 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) 360I Political Status and Relations 360I(A) In General 360k4 k. Status Under Constitution of United States, and Relations to United States in General. Most Cited Cases States retain a significant measure of sovereign authority but they do so only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the federal government. U.S.C.A. Const.Amend. 10. [51 States 360 a4.4(3) 360 States 3601 Political Status and Relations 360I(A) In General 360k4.4 Powers Reserved to States 360k4.4(3) k. Other Particular Powers. Most Cited Cases United States 393 C=71 393 United States 3931 Government in General 393k7 Congress 3930.1 k. In General. Most Cited Cases Power to add qualifications for the offices of congressman and senator is not part of the original powers of sovereignty which the Tenth Amendment reserved to the states. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3; Amend. 10. [6] States 360 C:-4.4(1) 360 States 360I Political Status and Relations 360I(A) In General 360k4.4 Powers Reserved to States 360k4.4(1) k. In General. Most Cited Cases States can exercise no powers whatsoever which exclusively spring out of the existence of the national government which the Constitution does not delegate to them, and no state can say that it has reserved what it never possessed. U.S.C.A. Const.Amend. 10. [7] Taxation 371 �2006 Page 2 371 Taxation 3711 In General 371k2004 Power of State 37112006 k. United States Entities, Property, and Securities. Most Cited Cases (Formerly 371k9) Constitution's silence on the subject of state power to tax corporations chartered by Congress does not imply that the states have reserved power to tax such federal instrumentalities. U.S.C.A. Const.Amend. 10. [81 United States 393 C=7.1 393 United States 393I Government in General 393k7 Congress 393k7.1 k. In General. Most Cited Cases In the national government, representatives owe primary allegiance, not to the people of a state, but to the people of the nation. [9] United States 393 C=7.1 393 United States 393I Government in General 393k7 Congress 3930.1 k. In General. Most Cited Cases Even if states possessed as part of their original powers some control over congressional qualifications, the qualifications clauses were intended to preclude states from exercising any such power and to fix as exclusive the qualifications set forth in the Constitution. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3. [101 States 360 0-18.71 360 States 360I Political Status and Relations 360I(B) Federal Supremacy; Preemption 360k18.71 k. Public Officers and Employees; Elections. Most Cited Cases United States 393 C-7.1 393 United States 393I Government in General 393k7 Congress O 2007 Thomson(West. No Claim to Orig. U.S. Govt, Works. 097 http://Web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l&prft=HTMi E&n=l8&f... 3/14/2007 Page 4 of 84 115 S.Ct. 1842 Page 3 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) 393k7.1 k. In General. Most Cited Cases State -imposed restrictions on qualifications for Congress violate the idea that the right to choose representatives belongs, not to the states, but to the people. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3. [111 United States 393 C-7.1 393 United States 3931 Government in General 393k7 Congress 393k7.1 k. In General. Most Cited Cases Congress of the United States is not a confederation of nations in which separate sovereigns are represented by appointed delegates but is instead a body composed of representatives of the people. [121 United States 393 4-,-1 393 United States 393I Government in General 393k1 k. Nature of the Union. Most Cited Cases Ours is a government of the people, by the people, for the people. [131 United States 393 C-7.1 393 United States 393I Government in General 393k7 Congress 393k7.1 k. In General. Most Cited Cases Constitutionality of state law setting forth qualifications for Congress would not depend on the method of its adoption, and the people of the state, in enacting a measure, have no more power than does the state legislature to supplement the qualifications for service in Congress. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3. [141 Constitutional Law 92 0=38 92 Constitutional Law 9211 Construction, Operation, and Enforcement of Constitutional Provisions 92k37 Validity of Statutory Provisions 9208 k. In General. Most Cited Cases Constitution nullifies sophisticated as well as simple-minded modes of infringing on constitutional protections. [151 States 360 C=18.71 360 States 360I Political Status and Relations 360I(B) Federal Supremacy; Preemption 360k18.71 k. Public Officers and Employees; Elections. Most Cited Cases United States 393 C-7.1 393 United States 3931 Government in General 393k7 Congress 393k7.1 k. In General. Most Cited Cases United States 393 C:-11 393 United States 3931 Government in General 3930 Congress 393k11 k. ReguIation of Elections of Senators and Representatives. Most Cited Cases State constitutional provision which precluded person's name from appearing on ballot for election to Congress if the person had served three or more terms as a member of the House of Representatives or two or more terms as a member of the United States Senate was not a mere regulation of the times, places, and manner of holding elections but, rather, was an impermissible qualification for office. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3, 4 , cl. 1. [161 United States 393 C=017.1 393 United States 393I Government in General 3930 Congress 393k7.1 k. In General. Most Cited Cases State provision is unconstitutional when it has a likely effect of handicapping a class of candidates for Congress and has the sole purpose of creating additional qualifications indirectly. U.S.C.A. Const. Art. 1, §§ 2, cl. 2, 3, cl. 3. **1843 Syllabus FN* FN* The syllabus constitutes no part of the © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. C9� http://web2.westlaw.conVprintlprintstream.aspx?sv=Split&rlti=l&prft=HTMLE&n=18&f... 3/14/2007 Page 5 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779, 115 S.Ct.1842) opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United Slates v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. *779 Respondent Hill filed this suit in Arkansas state court challenging the constitutionality of § 3 of Amendment 73 to the Arkansas Constitution, which prohibits the name of an otherwise -eligible candidate for Congress from appearing on the general election ballot if that candidate has already served three terms in the House of Representatives or two terms in the Senate. The trial court held that § 3 violated Article I of the Federal Constitution, and the Arkansas Supreme Court affirmed. A plurality of the latter court concluded that the States have no authority "to change, add to, or diminish" the age, citizenship, and residency requirements for congressional service enumerated in the Qualifications CIauses, U.S. Const., Art. I. § 2, cl. 2 , and Art. 1, § 3, cl. 3, and rejected the argument that Amendment 73 is constitutional because it is formulated as a ballot access restriction rather than an outright disqualification of congressional incumbents. Held: Section 3 of Amendment 73 to the Arkansas Constitution violates the Federal Constitution. Pp. 1847-1871. **1844 (a) The power granted to each House of Congress to judge the "Qualifications of its own Members," Art. I, § 5, cl. 1, does not include the power to alter or add to the qualifications set forth in the Constitution's text. Powell v. McCormack, 395 U.S. 486, 540, 89 S.Ct. 1944, 1973, 23 L.Ed.2d 491. After examining Powell 's analysis of the Qualifications Clauses history and text, id., at 518-548, 89 S.Ct., at 1962-1978, and its articulation of the "basic principles of our democratic system," id., at 548, 89 S.Ct., at 1978, this Court reaffirms that the constitutional qualifications for congressional service are "fixed," at least in the sense that they may not be supplemented by Congress. Pp. 1847-1852. (b) So too, the Constitution prohibits States from imposing congressional qualifications additional to Page 4 those specifically enumerated in its text. Petitioners' argument that States possess control over qualifications as part of the original powers reserved to them by the Tenth Amendment is rejected for two reasons. First, the power to add qualifications is not within the States' pre -Tenth Amendment "original powers," but is a new right arising from the Constitution itself, and thus is *780 not reserved. Second, even if the States possessed some original power in this area, it must be concluded that the Framers intended the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby "divested" States of any power to add qualifications. That this is so is demonstrated by the unanimity among the courts and learned commentators who have considered the issue; by the Constitution's structure and the text of pertinent constitutional provisions, including Art. 1, § 2, cl. 1, Art. I, § 4, cl. 1, Art. I, § 6, and Art. I, § 5, cl. 1; by the relevant historical materials, including the records of the Constitutional Convention and the ratification debates, as well as Congress' subsequent experience with state attempts to impose qualifications; and, most importantly, by the "fundamental principle of our representative democracy ... 'that the people should choose whom they please to govern them,' " Powell, 395 U.S., at 547, 89 S.Ct., at 1977. Permitting individual States to formulate diverse qualifications for their congressional representatives would result in a patchwork that would be inconsistent with the Framers' vision of .a uniform National Legislature representing the people of the United States. The fact that, immediately after the adoption of the Constitution, many States imposed term limits and other qualifications on state officers, while only one State imposed such a qualification on Members of Congress, provides further persuasive evidence of a general understanding that the qualifications in the Constitution were unalterable by the States. Pp. 1852-1866. (c) A state congressional term limits measure 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 Court rejects petitioners' argument that Amendment 73 is valid because it merely © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 99 http://web2.westlaw.com/printlpiintstream.aspx?sv=Split&rlti=l &prft=HTU LE&n=18&f... 3/14/2007 Page 6 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) precludes certain congressional candidates from being certified and having their names appear on the ballot, and allows them to run as write-in candidates and serve if elected. Even if petitioners' narrow understanding of qualifications is correct, Amendment 73 must fall because it is an indirect attempt to evade the Qualifications Clauses' requirements and trivializes the basic democratic principles underlying those Clauses. Nor can the Court agree with petitioners' related argument that Amendment 73 is a permissible exercise of state power under the Elections Clause, Art. I, § 4, cl. 1, to regulate the "Times, Places and Manner of holding Elections." A necessary consequence of that argument is that Congress itself would have the power under the Elections Clause to "make or alter" a measure such as Amendment 73, a result that is unfathomable under Powell. Moreover, petitioners' broad construction is fundamentally inconsistent with the Framers' view of the Elections Clause, which was intended to grant States authority to protect the integrity and regularity of the election process by regulating *781 election procedures, see, e.g., Storer v. Brown, 415 U.S. 724, 730, 733, 94 S.Ct. 1274, 1279, 1280, 39 L.Ed.2d 714, not to provide them with license to impose substantive qualifications that would exclude classes of candidates from federal office. Pp. 1866-1871. **1845 (d) State imposition of term limits for congressional service would effect such a fundamental change in the constitutional framework that it must come through a constitutional amendment properly passed under the procedures set forth in Article V. Absent such an amendment, allowing individual States to craft their own congressional qualifications would erode the structure designed by the Framers to form a "more perfect Union." P. 1871. 316 Ark. 251, 872 S.W.2d 349 (1994), affirmed. STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 1872. T'HOMAS, J., filed a dissenting opinion, in which REHNQUIST, C.J., and O'CONNOR and SCALIA, JJ., joined, post, p. 1875. Page 5 Winston Bryant, for petitioner in 93-1828. John G. Kester, for petitioners in 93-1456. Louis R. Cohen for respondents. Drew S. Davis, III, for U.S. as amicus curiae, by special leave of the Court.For U.S. Supreme Court briefs, see:1994 WL 444683 (Pet.Brief), 1994 WL 4447041994 WL 513192 (Resp.Brief), 1994 WL 449512, 1994 WL 570304, 1994 WL 5770741994 WL 646175 (Reply.Brief), 1994 WL 658533, 1994 WL 658546, 1994 WL 660722 *782 Justice STEVENS delivered the opinion of the Court. The Constitution sets forth qualifications for membership in the Congress of the United States. Article I, § 2, cl. 2, which applies to the House of Representatives, provides: *783 "No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen." Article I, § 3, cl. 3, which applies to the Senate, similarly provides:"No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. 11 (1) Today's cases present a challenge to an amendment to the Arkansas State Constitution that prohibits the name of an otherwise -eligible candidate for Congress from appearing on the general election ballot if that candidate has already served three terms in the House of Representatives or two terms in the Senate. The Arkansas Supreme Court held that the amendment violates the Federal Constitution. We agree with that holding. Such a state -imposed restriction is contrary to the " fundamental principle of our representative democr acy," embodied in the Constitution, that "the people should choose whom they please to govern them" Powell v. McCormack, 395 U.S. 486, 547, 89 S.Ct. 1944, 1977, 23 L.Ed.2d 491 (1969) (internal quotation marks omitted). Allowing individual States to adopt their own qualifications for congressional service would be inconsistent with © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. J' http://web2.westlaw.com/print/printstream.aspx?sv=Split&rlti=l&prft=HTMLE&n=18&f... 3/14/2007 Page 7 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct 1842) the Framers' vision of a uniform National Legislature representing the people of the United States. If the qualifications set forth in the text of the Constitution are to be changed, that text must be amended. At the general election on November 3, 1992, the voters of Arkansas adopted Amendment 73 to their State Constitution. Proposed as a "Term Limitation Amendment," its preamble stated: *784 "The people of Arkansas find and declare that elected officials who remain in office too long become preoccupied with reelection and ignore their duties as representatives of the people. Entrenched incumbency has reduced voter participation and has led to an electoral system that is less free, less competitive, and less representative than the system established by the Founding Fathers. Therefore, the people of Arkansas, exercising their reserved powers, herein limit the terms of elected officials." The limitations in Amendment 73 apply to three categories of elected officials. Section **1846 1 provides that no elected official in the executive branch of the state government may serve more than two 4-year terms. Section 2 applies to the legislative branch of the state government; it provides that no member of the Arkansas House of Representatives may serve more than three 2-year terms and no member of the Arkansas Senate may serve more than two 4-year terms. Section 3, the provision at issue in these cases, applies to the Arkansas Congressional Delegation. It provides -- "(a) Any person having been elected to three or more terms as a member of the United States House of Representatives from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on the ballot for election to the United States House of Representatives from Arkansas. "(b) Any person having been elected to two or more terms as a member of the United States Senate from Arkansas shall not be certified as a candidate and shall not be eligible to have his/her name placed on Page 6 the ballot for election to the United States Senate from Arkansas." Amendment 73 states that it is self-executing and shall apt ly to all persons seeking election after January 1, 1993. On November 13, 1992, respondent Bobbie Hill, on behalf of herself, similarly situated Arkansas " citizens, residents, *785 taxpayers and registered voters," and the League of Women Voters of Arkansas, filed a complaint in the Circuit Court for Pulaski County, Arkansas, seeking a declaratory judgment that § 3 of Amendment 73 is " unconstitutional and void." Her complaint named as defendants then -Governor Clinton, other state officers, the Republican Party of Arkansas, and the Democratic Party of Arkansas. The State of Arkansas, through its Attorney General, petitioner Winston Bryant, intervened as a party defendant in support of the amendment. Several proponents of the amendment also intervened, including petitioner U.S. Term Limits, Inc. On cross -motions for summary judgment, the Circuit Court held that § 3 of Amendment 73 violated Article I of the Federal Constitution.FNI FNI. The Circuit Court also held that § 3 was severable from the other provisions of the amendment, but that the entire amendment was void under state law for lack of an enacting clause. App. to Pet. for Cert. in No. 93-1456, p. 60a. The Arkansas Supreme Court affirmed the Circuit Courts decision regarding severability, U.S. Term Mmlts, Inc. v Hill, 316 Ark. 251, 270, 872 S.W.2d 349, 359 (1994). and reversed its decision regarding the enacting clause, id., at 203, 872 S.W.2d, at 355. The decision of the Arkansas Supreme Court with respect to those issues of state law is not before us. With respect to that holding, in a 5-to-2 decision, the Arkansas Supreme Court affirmed. U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349, 351 (1994). Writing for a plurality of three Q 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 101 http://web2.westlaw.comlprintlprintstreain.aspx?sv=Split&rlti=l&prft=frTMLE&n=18&f... 3/14/2007 Page 8 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) justices, Justice Robert L. Brown concluded that the congressional restrictions in Amendment 73 are unconstitutional because the States have no authority "to change, add to, or diminish" the requirements for congressional service enumerated in the Qualifications Clauses. Id, at 265, 872 S.W.2d, at 356. He noted: "If there is one watchword for representation of the various states in Congress, it is uniformity. Federal legislators speak to national issues that affect the citizens of every state.... The uniformity in qualifications mandated*786 in Article 1 provides the tenor and the fabric for representation in the Congress. Piecemeal restrictions by State would fly in the face of that order." Ibid. Justice Brown's plurality opinion also rejected the argument that Amendment 73 is "merely a ballot access amendment," concluding that "[t]he intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service." Id., at 265-266, 872 S.W.2d, at 356-357. Justice Brown considered the possibilities that an excluded candidate might run for Congress as a write-in candidate or be appointed to fill a vacancy to be " glimmers of opportunity ... (that] are faint indeed -so faint in our judgment that they cannot salvage Amendment 73 from constitutional attack." Id., at 266, 872 S.W.2d, at 357. In separate opinions, Justice Dudley and Justice Gerald P. Brown **1847 agreed that Amendment 73 violates the Federal Constitution. Two justices dissented from the federal constitutional holding. Justice Hays started from " the premise that all political authority resides in the people, limited only by those provisions of the federal or state constitutions specifically to the contrary." Id., at 281, 872 S.W.2d, at 367. Because his examination of the text and history of the Qualifications Clauses convinced him that the Constitution contains no express or implicit restriction on the States' ability to impose additional qualifications on candidates for Congress, Justice Hays concluded that § 3 is constitutional. Special Chief Justice Cracraft, drawing a distinction between a measure that "impose[s] an absolute bar on incumbent succession" and a measure that " Page 7 merely makes it more difficult for an incumbent to be elected," id., at 284, 872 S.W.2d, at 368, concluded that Amendment 73 does not even implicate the Qualifications Clauses, and instead is merely a permissible ballot access restriction. The State of Arkansas, by its Attorney General, and the intervenors petitioned for writs of certiorari. Because of the importance of the issues, we granted both petitions and *787 consolidated the cases for argument. See 512 U.S. 1218, 114 S.Ct. 2703, 129 L.Ed.2d 832 (1994). We now affirm. II As the opinions of the Arkansas Supreme Court suggest, the constitutionality of Amendment 73 depends critically on the resolution of two distinct issues. The first is whether the Constitution forbids States to add to or alter the qualifications specifically enumerated in the Constitution. The second is, if the Constitution does so forbid, whether the fact that Amendment 73 is formulated as a ballot access restriction rather than as an outright disqualification • is of constitutional significance. Our resolution of these issues draws upon our prior resolution of a related but distinct issue: whether Congress has the power to add to or alter the qualifications of its Members. Twenty-six years ago, in Powell v. McConnack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) , we reviewed the history and text of the Qualifications Clauses F712 in a case involving an attempted exclusion *788 of a duly elected Member of Congress. The principal issue was whether the power granted to each House in Art. I, § 5, cl. 1, to judge the "Qualifications of its own Members" FN3 includes the power to impose qualifications other than those set forth in the text of the Constitution. In an opinion by Chief Justice Warren for eight Members of the Court,FN4 we **1848 held that it does not. Because of the obvious importance of the issue, the Court's review of the history and meaning of the relevant constitutional text was especially thorough. We therefore begin our analysis today with a full statement of what we decided in that case. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 102 http:llweb2.westlaw.comlprint/printstream.aspx?sv=Split&rlti=l&prft=I TMLE&n=18&f... 3/14/2007 Page 9 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) FN2. As we explained, that term may describe more than the provisions quoted, supra, at 1845: "In addition to the three qualifications set forth in Art. I, § 2, Art. I, § 3, cl. 7, authorizes the disqualification of any person convicted in an impeachment proceeding from 'any Office of honor, Trust or Profit under the United States; Art. I. § 6, cl. 2, provides that 'no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office'; and § 3 of the 14th Amendment disqualifies any person 'who, having previously taken an oath ... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.' It has been argued that each of these provisions, as well as the Guarantee Clause of Article IV and the oath requirement of Art. VI, cl. 3, is no Iess a ' qualification' within the meaning of Art. I, § 5, than those set forth' in Art. I, § 2." Powell v. McCormack, 395 U.S. 486, 520, n. 41, 89 S.Ct. 1944, 1963, n. 41, 23 L.Ed.2d 491(1969). In Powell, we saw no need to resolve the question whether those additional provisions constitute "qualifications," because "both sides agree that Powell was not ineligible under any of these provisions. " Ibid. We similarly have no need to resolve that question today: Because those additional provisions are part of the text of the Constitution, they have little bearing on whether Congress and the States may add qualifications to those that appear in the Constitution. FN3. Art. I, § 5, cl. 1, provides in part: " Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do business.... 11 FN4. Justice Stewart dissented on Page 8 procedural grounds, arguing that the case should have been dismissed as moot. See 395 U.S., at 559-561, 89 S.Ct., at 1983-1985. Other than expressing agreement with the characterization of the case as raising constitutional issues which " `touch the bedrock of our political system [and] strike at the very heart of representative government,' " id, at 573, 89 S.Ct., at 1991, Justice Stewart did not comment on the merits. The Issue in Powell In November 1966, Adam Clayton Powell, Jr., was elected from a District in New York to serve in the United States House of Representatives for the 90th Congress. Allegations that he had engaged in serious misconduct while serving as a committee chairman during the 89th Congress led to the appointment of a Select Committee to determine his eligibility to take his seat. That committee found that Powell met the age, citizenship, and residency requirements set forth in Art. I, § 2, cl. 2. The committee also found, however, that Powell had wrongfully diverted House funds for the use of others and himself and had made false reports on expenditures of foreign currency. Based on those findings, the House after debate adopted House Resolution 278. excluding *789 Powell from membership in the House, and declared his seat vacant. See 395 U.S.; at 499-493, 89 S.Ct., at 1947-1949. Powell and several voters of the District from which he had been elected filed suit seeking a declaratory judgment that the House Resolution was invalid because Art. I, § 2, cl. 2, sets forth the exclusive qualifications for House membership. We ultimately accepted that contention, concluding that the House of Representatives has no "authority to exclude Fv5 any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution." 395 U.S., at 522, 89 S.Ct., at 1964 (emphasis in original); see also id, at 547, 89 S.Ct., at 1977. FN6 In reaching that conclusion, we undertook a detailed historical review to determine the intent of the Framers. Though 2007 Thomson/West. No Claim to Orig. U.S. GOVL Works. 1.03 http://web2.westlaw.comlprintlpiintstreami.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 10 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779, 115 S.Ct. 1842) recognizing that the Constitutional Convention debates themselves were inconclusive, see id., at 532, 89 S.Ct., at 1969, we determined that the " relevant historical materials" reveal that Congress has no power to alter the qualifications in the text of the Constitution, id., at 522, 89 S.Ct., at 1964. FN5. The Powell Court emphasized the word "exclude" because it had been argued that the House Resolution depriving Powell of his seat should be viewed as an expulsion rather than an exclusion. Having rejected that submission, the Court expressed no opinion on issues related to the House's power to expel a Member who has been sworn in and seated. FN6. Though Powell addressed only the power of the House, the Court pointed out that its rationale was equally applicable to the Senate: "Since Art. I, § 5, cl. 1, applies to both Houses of Congress, the scope of the Senate's power to judge the qualification of its members necessarily is identical to the scope of the House's power, with the exception, of course, that Art. I, § 3, cl. 3, establishes different age and citizenship requirements for membership in the Senate." Id., at 522, n. 44, 89 S.Ct., at 1964, n. 44. Powell's Reliance on History We started our analysis in Powell by examining the British experience with qualifications for membership in Parliament, focusing in particular on the experience of John Wilkes. While serving as a member of Parliament, Wilkes had published an attack on a peace treaty with France. This *790 literary endeavor earned Wilkes a conviction for seditious libel and a 22-month prison sentence. In addition, Parliament declared Wilkes ineligible for membership and ordered him expelled. Despite (or perhaps because of) these difficulties, Wilkes was reelected several times. Parliament, however, persisted in its refusal to seat him. After several years of Wilkes' efforts, the House of Commons Page 9 voted to expunge the resolutions that had expelled Wilkes and had declared him ineligible, labeling those prior actions " 'subversive of the rights of the whole body of electors of this kingdom.' " Id., at 528, 89 S.Ct., at 1967, quoting 22 Parliamentary History of England 1411 (1782) (Parl.Hist.Eng.). After reviewing Wilkes' "long and bitter struggle for the right of the British electorate to be represented by men of their own choice," 395 U.S., at 528, 89 S.Ct., at 1967, we concluded in Powell that "on the eve of the Constitutional Convention, English precedent stood for the proposition that ` the law of the land had regulated the qualifications of members to serve in parliament' and those qualifications were 'not occasional but fixed.' " Ibid. quoting 16 Parl.Hist.Eng. 589, 590 (1769). **1849 Against this historical background, we viewed the Convention debates as manifesting the Framers' intent that the qualifications in the Constitution be fixed and exclusive. We found particularly revealing the debate concerning a proposal made by the Committee of Detail that would have given Congress the power to add property qualifications. James Madison argued that such a power would vest " `an improper & dangerous power in the Legislature,' " by which the Legislature `can by degrees subvert the Constitution.' " 395 U.S., at 533-534, 89 S.Ct., at 1970, quoting 2 Records of the Federal Convention of 1787, pp. 249-250 (M. Farrand ed. 1911) (hereinafter Farrand) FN7 Madison continued: " ' A Republic may be *791 converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect.' " 395 U.S., at 534, 89 S.Ct., at 1970, quoting 2 Farrand 250. We expressly noted that the "parallel between Madison's arguments and those made in Wilkes' behalf is striking." 395 U.S., at 534, 89 S.Ct., at 1971. FN7. Though we recognized that Madison was responding to a proposal that would have allowed Congress to impose property restrictions, we noted that "Madison's argument was not aimed at the imposition of a property qualification as such, but rather at the delegation to the Congress of © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlpiintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 11 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) the discretionary power to establish any qualifications." Id., at 534, 89 S.Ct., at 1971. The Framers further revealed their concerns about congressional abuse of power when Gouverneur Morris suggested modifying the proposal of the Committee of Detail to grant Congress unfettered power to add qualifications. We noted that Hugh Williamson "expressed concern that if a majority of the legislature should happen to be 'composed of any particular description of men, of lawyers for example, ... the future elections might be secured to their own body.' " Id., at 535, 89 S.Ct., at 1971, quoting 2 Farrand 250. We noted, too, that Madison emphasized the British Parliament's attempts to regulate qualifications, and that he observed: " '[T]he abuse they had made of it was a lesson worthy of our attention.' " 395 U.S., at 535, 89 S.Ct., at 1971, quoting 2 Farrand 250. We found significant that the Convention rejected both Morris' modification and the Committee's proposal. We also recognized in Powell that the post -Convention ratification debates confirmed that the Framers understood the qualifications in the Constitution to be fixed and unalterable by Congress. For example, we noted that in response to the antifederalist charge that the new Constitution favored the wealthy and well born, Alexander Hamilton wrote: " 'The truth is that there is no method of securing to the rich the preference apprehended but by prescribing qualifications of property either for those who may elect or be elected. But this forms no part of the power to be conferred upon the national government.... The *792 qualifications of the persons who may choose or be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.' " 395 U.S., at 539, 89 S.Ct., at 1973, quoting The Federalist No. 60, p. 371 (C. Rossiter ed. 1961) (emphasis added) (hereinafter The Federalist). We thus attached special significance to " Hamilton's express reliance on the immutability of the qualifications set forth in the Constitution." 395 U.S., at 540, 89 S.Ct., at 1974. Moreover, we Page 10 reviewed the debates at the state conventions and found that they "also demonstrate the Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution." Ibid.; see, e.g., id, at 541, 89 S.Ct., at 1974, citing 3 Debates on the Adoption of the Federal Constitution 8 (J. Elliot ed. 1863) (hereinafter Elliot's Debates) (Wilson Carey Nicholas, Virginia). E=N$ FN9. Our examination of the history also caused us to reject the argument that the negative phrasing of the Clauses indicated that the Framers did not limit the power of the House to impose additional qualifications for membership. Id., at 537, 89 S.Ct., at 1972 (noting that the Committee of Style, which edited the Qualifications Clauses to incorporate " their present negative form," had " `no authority from the Convention to make alterations of substance in the Constitution as voted by the Convention, nor did it purport to do so' "); id, at 539, 89 S.Ct., at 1973, quoting C. Warren, The Making of the Constitution 422, n. 1 (1947) (hereinafter Warren); see also 2 Farrand 553 (the Committee of Style was appointed "to revise the stile and arrange the articles which had been agreed to"). **1850 The exercise by Congress of its power to judge the qualifications of its Members further confirmed this understanding. We concluded that, during the first 100 years of its existence, "Congress strictly limited its power to judge the qualifications of its members to those enumerated in the Constitution." 395 U.S., at 542, 89 S.Ct., at 1974. As this elaborate summary reveals, our historical analysis in Powell was both detailed and persuasive. We thus conclude now, as we did in Powell, that history shows that, with *793 respect to Congress, the'Framers intended the Constitution to establish fixed qualifications.FN9 FN9. The text of the Qualifications Q 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 165 http://web2.westlaw.comlprint/printstream.aspx?sv=Split&rlti=l&prft--HTMLE&n=18&f... 3/14/2007 Page 12 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) Clauses also supports the result we reached in Powell. John Dickinson of Delaware observed that the enumeration of a few qualifications "would by implication tie up the hands of the Legislature from supplying omissions." 2 Farrand 123. Justice Story made the same point: "It would seem but fair reasoning upon the plainest principles of interpretation, that when the constitution established certain qualifications, as necessary for office, it meant to exclude all others, as prerequisites. From the very nature of such a provision, the affirmation of these qualifications would seem to imply a negative of all others" 1 J. Story, Commentaries on the Constitution of the United States § 625 (3d ed. 1858) (hereinafter Story). See also Warren 421 ( "As the Constitution ... expressly set forth the qualifications of age, citizenship, and residence, and as the Convention refused to grant to Congress power to establish qualifications in general, the maxim expressio unius exclusio alterius would seem to apply"). As Dickinson's comment demonstrates, the Framers were well aware of the expressio unius argument that would result from their wording of the Qualifications Clauses; they adopted that wording nonetheless. There thus is no merit either to the dissent's suggestion that Story was the first to articulate the expressio unius argument, see post, at 1885-1886, or to the dissent's assertion that that argument is completely without merit. Powell's Reliance on Democratic Principles In Powell, of course, we did not rely solely on an analysis of the historical evidence, but instead complemented that analysis with "an examination of the basic principles of our democratic system." Id., at 548, 89 S.Ct., at 1978. We noted that allowing Congress to impose additional qualifications would violate that "fundamental principle of our representative democracy ... 'that the people should choose whom they please to govern them.' " Id., at Page 11 547, 89 S.Ct., at 1977, quoting 2 Elliot's Debates 257 (A. Hamilton, New York). Our opinion made clear that this broad principle incorporated at least two fundamental ideas.FNtc First, we emphasized*794 the egalitarian concept that the opportunity to be elected was open to all. FNIt We noted in particular Madison's statement in The Federalist that " '[u]nder these reasonable limitations [enumerated in the Constitution], the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.' " Powell, 395 U.S., at 540, n. 74, 89 S.Ct., at 1973, n. 74, quoting The Federalist No. 52, at 326. Similarly, we noted that Wilson Carey Nicholas defended the Constitution against the charge that it "violated democratic principles" by arguing: " 'It has ever been considered a great security to liberty, that very few should be excluded from the right of being chosen to the legislature. This Constitution has amply attended to this idea. We find no **1851 qualifications required except those of age and residence.' " 395 U.S., at 541, 89 S.Ct., at 1974, quoting 3 Elliot's Debates 8. FNIO. The principle also incorporated the more practical concern that reposing the power to adopt qualifications in Congress would lead to a self-perpetuating body to the detriment of the new Republic. See, e.g., Powell, 395 U.S., at 533-534, 89 S.Ct., at 1970, quoting 2 Farrand 250 (Madison) (" 'If the Legislature could regulate [the qualification of electors or elected], it can by degrees subvert the Constitution. A Republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorised to elect' "); 395 U.S., at 534-535, 89 S.Ct., at 1970 (citing statements of Williamson and Madison emphasizing the potential for legislative abuse). FNI L Contrary to the dissent's suggestion, post, at 1891, we do not understand Powell © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlpiintstream.aspx?sv=Split&rlti=l &prft=H'TN4LE&n=18&f... 3/14/2007 Page 13 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881,63 USLW 4413 (Cite as: 514 U.S. 779, 115 S.Ct.1842) as reading the Qualifications Clauses "to create a personal right to be a candidate for Congress." The Clauses did, however, further the interest of the people of the entire Nation in keeping the door to the National Legislature open to merit of every description. Second, we recognized the critical postulate that sovereignty is vested in the people, and that sovereignty confers on the people the right to choose freely their representatives to the National Government. For example, we noted that "Robert Livingston ... endorsed this same fundamental principle: 'The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural *795 rights.' " 395 U.S., at 541, n. 76, 89 S.Ct., at 1974, n. 76, quoting 2 Elliot's Debates 292-293. Similarly, we observed that "[b]efore the New York convention , Hamilton emphasized: 'The true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.' " 395 U.S., at 540-541, 89 S.Ct., at 1974, quoting 2 Elliot's Debates 257. Quoting from the statement made in 1807 by the Chairman of the House Committee on Elections, we noted that "restrictions upon the people to choose their own representatives must be limited to those `absolutely necessary for the safety of the society.' " 395 U.S., at 543, 89 S.Ct., at 1975, quoting 17 Annals of Cong. 874 (1807). Thus, in Powell, we agreed with the sentiment expressed on behalf of Wilkes' admission to Parliament: " 'That the right of the electors to be represented by men of their own choice, was so essential for the preservation of all their other rights, that it ought to be considered as one of the most sacred parts of our constitution.' " 395 U.S., at 534, n. 65, 89 S.Ct., at 1971, n. 65, quoting 16 Parl.Hist.Eng. 589-590 (1769). Powell thus establishes two important propositions: first, that the "relevant historical materials" compel the conclusion that, at least with respect to Page 12 qualifications imposed by Congress, the Framers intended the qualifications listed in the Constitution to be exclusive; and second, that that conclusion is equally compelled by an understanding of the " fundamental principle of our representative democracy ... 'that the people should choose whom they please to govern them.' " 395 U.S., at 547, 89 S.Ct., at 1977. Powell's Holding Petitioners argue somewhat half-heartedly that the narrow holding in Powell, which involved the power of the House to exclude a Member pursuant to Art. I, § 5, does not control the more general question whether Congress has the *796 power to add qualifications. Powell, however, is not susceptible to such a narrow reading. Our conclusion that Congress may not alter or add to the qualifications in the Constitution was integral to our analysis and outcome. See, e.g., id, at 540, 89 S.Ct., at 1973 (noting "Framers' understanding that the qualifications for members of Congress had been fixed in the Constitution"). Only two Terms ago we confirmed this understanding of Powell in Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993). After noting that the three qualifications for membership specified in Art. I, § 2, are of "a precise, limited nature" and " unalterable by the legislature," we explained; "Our conclusion in Powell was based on the fixed meaning of '[q]ualifications' set forth in Art I, § 2. The claim by the House that its power to 'be the Judge of the Elections, Returns and Qualifications of its own Members' was a textual commitment of unreviewable authority was defeated by the existence of this separate provision specifying the only qualifications which might be imposed for House membership." Id, at 237, 113 S.Ct., at 740). FNt2 FN12. Justice THOMAS' dissent purports to agree with the outcome of Powell, but rejects the reasoning in the opinion. The dissent treats Powell as simply an application of the "default rule" that if "the © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. J-0% http://web2.westlaw.conVprintlprintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 14 of 84 115 S.Ct. 1842 Page 13 514U.S.779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779, 115 S.CL 1842) Constitution is silent about the exercise of Bendix Autolite Corp. v. Midwesco a particular power -that is, where the Enterprises, Inc., 486 U.S. 888, 108 S.Ct. Constitution does not speak either 2218, 100 L.Ed.2d 896 (1988). expressly or by necessary implication -the Federal Government lacks that power and **1852 *797 Unsurprisingly, the state courts and the States enjoy it." Post, at 1876, lower federal courts have similarly concluded that 1889-1890, 1894-1895. However, there is Powell conclusively resolved the issue whether not a word in the Courfs opinion in Powell Congress has the power to impose additional suggesting that the decision rested on the " qualifications. See, e.g., Joyner v. Mofford, 706 default rule, that undergirds the dissent's F.2d 1523, 1528 (CA9 1983) ("In Powell .... the entire analysis. On the contrary, as the Supreme Court accepted this restrictive view of the excerpt from Nixon quoted in the text Qualifications Clause -at least as applied to Congress plainly states, our conclusion in Powell "); Michel v. Anderson, 14 F.3d 623 (CADC 1994) was based on our understanding of the " (citing Nixon 's description of Powell 's holding); fixed meaning of '[gualifications' set forth Stumpf v. Lau, 108 Nev. 826, 830, 839 P.2d 120, in Art. I, § 2." We concluded that the 122 (1992) (citing Powell for the proposition that " Framers affirmatively intended the [nlot even Congress has the power to alter qualifications set forth in the text of the qualifications for these constitutional federal officers Constitution to be exclusive in order to „).FN13 effectuate the principle that in a representative democracy the people should choose whom they please to govern END. Our decision in Powell and its them. historical analysis were consistent with Moreover, the Court has never treated the prior decisions from state courts. For dissent's "default rule" as absolute. In example, in State ex rel. Johnson v. Crane, McCulloch v. Maryland, 4 Wheat. 316, 4 65 Wyo. 189, 197 P.2d 864 (1948), the L.Ed. 579 (1819), for example, Chief Wyoming Supreme Court undertook a Justice Marshall rejected the argument that detailed historical analysis and concluded the Constitution's silence on state power to that the Qualifications Clauses were tax federal instrumentalities requires that exclusive. Several other courts reached States have the power to do so. Under the the same result, though without performing dissent's unyielding approach, it would the same detailed historical analysis. See, seem that McCulloch was wrongly e.g., Hellmann v. Collier, 217 Md. 93, 141 decided. Similarly, the dissent's approach A.2d 908 (1958); State ex rel. Chandler v. would invalidate our dormant Commerce Howell, 104 Wash. 99, 175 P. 569 (1918); Clause jurisprudence, because the State ex rel. Eaton v. Schmahl, 140 Minn. Constitution is clearly silent on the subject 219, 167 N.W. 481 (1918); see generally of state legislation that discriminates State ex rel. Johnson v. Crane, 65 Wyo., at against interstate commerce. However, 204-213, 197 P.2d, at 869-874 (citing though Justice THOMAS has endorsed cases). just that argument, see, e.g., Oklahoma The conclusion and analysis were also Tax Comm'n v. Jefferson Lines, hic., 514 consistent with the positions taken by U.S. 175, 115 S.Ct. 1331, 131 L.Ed.2d commentators and scholars. See, e.g., n. 261 (1995) (SCALIA, J., concurring in 9, supra; see also Warren 412-422 judgment, joined by THOMAS, 1.), the (discussing history and concluding that " Court has consistently rejected that [tlhe elimination of all power in Congress argument and has continued to apply the to fix qualifications clearly left the dormant Commerce Clause, see, e.g., id., provisions of the Constitution itself as the at 179-180, 115 S.Ct., at 1335-1336); sole source of qualifications"). m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 15 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) [2] *798 In sum, after examining Powell 's historical analysis and its articulation of the "basic principles of our democratic system," we reaffirm that the qualifications for service in Congress set forth in the text of the Constitution are "fixed," at least in the sense that they may not be supplemented by Congress. III Our reaffirmation of Powell does not necessarily resolve the specific questions presented in these cases. For petitioners argue that whatever the constitutionality of additional qualifications for membership imposed by Congress, the historical and textual materials discussed in Powell do not support the conclusion that the Constitution prohibits additional qualifications imposed by States. In the absence of such a constitutional prohibition, petitioners argue, the Tenth Amendment and the principle of reserved powers require that States be allowed to add such qualifications. Before addressing these arguments, we find it appropriate to take note of the striking unanimity among the courts that have considered the issue. None of the overwhelming array of briefs submitted by the parties and amici has called to our attention even a single case in which a state court or federal court has approved of a State's addition of qualifications for a Member of Congress. To the contrary, an impressive number of courts have determined that States lack the authority to add qualifications. See, e.g., Chandler v. Howell, 104 Wash. 99, 175 P. 569 (1918); **1853Ekwall v. Stadelman, 146 Or. 439, 446, 30 P.2d 1037, 1040 (1934); Stockton v. McFarland, 56 Ariz. 138, 144, 106 P.2d 328, 330 (1940); State ex rel. Johnson v. Crane, 65 Wyo. 189, 197 P.2d 864 (1948); Dillon v. Fiorina, 340 F.Supp, 729, 731 (N.M.1972); Stack v. Adams, 315 F.Supp. 1295, 1297-1298 (ND F1a.1970); Buckingham v. State, 42 Del. 405, 35 A.2d 903, 905 (1944); Stumpf v. Lau, 108 Nev. 826, 830, 839 P.2d 120, 123 (1992); Danielson v. Fitzsimmons, 232 Minn. 149, 151, 44 N.W.2d 484, 486 (1950); *799In re Opinion of Judges, 79 S.D. 585, 587, 116 N.W.2d 233, 234 (1962). Courts Page 14 have struck down state -imposed qualifications in the form of term limits, see, e.g., Thorsted v. Gregoire, 841 F.Supp. 1068, 1081 (WD Wash.1994); Stumpf v. Lau, 108 Nev., at 830, 839 P.2d, at 123, district residency requirements, see, e.g., Hellmann v. Collier, 217 Md. 93, 100, 141 A.2d 908, 911 (1958); Dillon v. Fiorina, 340 F.Supp., at 731; Exon v. Tiemann, 279 F.Supp. 609, 613 (D.Neb.1968); State ex rel. Chavez v. Evans, 79 N.M. 578, 581, 446 P.2d 445, 448 (1968) (per curiam ), loyalty oath requirements, see, e.g., Shub v. Simpson, 196 Md. 177, 199, 76 A.2d 332, 341, appeal dism'd, 340 U.S. 881, 71 S.Ct. 198, 95 L.Ed. 640 (1950); In re O'Connor, 173 Misc. 419, 421, 17 N.Y.S.2d 758, 760 (Super.Ct.1940), and restrictions on those convicted of felonies, see, e.g., Application of Ferguson, 57 Misc.2d 1041, 1043, 294 N.Y.S.2d 174, 176 (Super.Ct.1968); Danielson v. Fitzsimmons, 232 Minn., at 151, 44 N.W.2d, at 486; Stare ex rel. Eaton v. Schmahl, 140 Minn. 219, 220, 167 N.W. 481 (1918) (per curiam). Prior to Powell, the commentators were similarly unanimous. See, e.g., 1 W. Blackstone, Commentaries, Appendix 213 (S. Tuckered. 1803) ( "[T]hese provisions, as they require qualifications which the constitution does not, may possibly be found to be nugatory"); 1 Story § 627 (each Member of Congress is "an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states"); 1 J. Kent, Commentaries on American Law 228, n. a (3d ed. 1836) ("[T]he objections to the existence of any such power [on the part of the States to add qualifications are] ... too palpable and weighty to admit of any discussion'); G. McCrary, American Law of Elections § 322 (4th ed. 1897) ("It is not competent for any State to add to or in any manner change the qualifications for a Federal office, as prescribed by the Constitution or laws of the United States"); T. Cooley, General Principles of Constitutional Law 268 (2d ed. 1891) ("The Constitution and laws of the United States determine what shall be the qualifications for federal offices, and state *800 constitutions and laws can neither add to nor take away from them"); C. Burdick, Law of the American Constitution 160 (1922) ("It is clearly the intention of the Constitution that all persons not disqualified by the O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. I C 9 http://web2.westlaw.com/printlprintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 16 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.CL 1842) terms of that instrument should be eligible to the federal office of Representative"); id., at 165 ("It is as clear that States have no more right to add to the constitutional qualifications of Senators than they have to add to those for Representatives"); Warren 422 ("The elimination of all power in Congress to fix qualifications clearly left the provisions of the Constitution itself as the sole source of qualifications ,,) FN14 This impressive and uniform body of judicial decisions and learned commentary indicates that the obstacles confronting petitioners are formidable indeed. FN14. More recently, the commentators have split, with some arguing that state -imposed term limits are constitutional, see, e.g., Gorsuch & Guzman, Will the Gentlemen Please Yield? A Defense of the Constitutionality of State -Imposed Term Limitation, 20 Hofstra L.Rev. 341 (1991); Hills, A Defense of State Constitutional Limits on Federal Congressional Terms, 53 U.Pitt.L.Rev. 97 (1991); Safranek, Term Limitations: Do the Winds of Change Blow Unconstitutional?, 26 Creighton L.Rev. 321 (1993), and others arguing that they are not, see, e.g., Lowenstein, Are Congressional Term Limits Constitutional?, 18 Harv.J.L. & Pub.Policy 1 (1994); Eid & Kolbe, The New Anti -Federalism: The Constitutionality of State -Imposed Limits on Congressional Terms of Office, 69 Denver L.Rev. 1 (1992); Comment, Congressional Term Limits: Unconstitutional by Initiative, 67 Wash.L.Rev.415 (1992). Petitioners argue that the Constitution contains no express prohibition against state -added qualifications, and that Amendment 73 is iharefore an appropriate exercise of a States reserved power to place additional restrictions on the choices that its own voters may make. We disagree for two independent**1854 reasons. First, we conclude that the power to add qualifications is not within the "original powers" of the States, and thus is not reserved to the States by the Tenth Amendment. Page 15 Second, even if States possessed some original power in this area, we conclude that the Framers intended*801 the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby "divested" States of any power to add qualifications. (3) The "plan of the convention" as illuminated by the historical materials, our opinions, and the text of the Tenth Amendment draws a basic distinction between the powers of the newly created Federal Government and the powers retained by the pre-existing sovereign States. As Chief Justice Marshall explained, "it was neither necessary nor proper to define the powers 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, 4 L.Ed. 529 (1819). This classic statement by the Chief Justice endorsed Hamilton's reasoning in The Federalist No. 32 that the plan of the Constitutional Convention did not contemplate "[a]n entire consolidation of the States into one complete national sovereignty," but only a partial consolidation in which "the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States." The Federalist No. 32, at 198. The text of the Tenth Amendment unambiguously confirms 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." [4] As we have frequently noted, "[t]he States unquestionably do retain a significant measure of sovereign authority. They do so, however, only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government." Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 549, 105 S.Ct. 1005, 1016-17, 83 L.Ed.2d © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprinttpiintstream.aspx?sv=Split&rlti=l &prft=HTNME&n=18&f... 3/14/2007 Page 17 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct 1842) 1016 (1985) (internal quotation marks and citation omitted) (emphasis*802 added); see also New York v. United States, 505 U.S. 144, 155-156, 112 S.Ct. 2408, 2417-2418, 120 L.Ed.2d 120 (1992). Source of the Power [5][6] Contrary to petitioners' assertions, the power to add qualifications is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States. Petitioners' Tenth Amendment argument misconceives the nature of the right at issue because that Amendment could only "reserve" that which existed before. As Justice Story recognized, "the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them.... No state can say, that it has reserved, what it never possessed. " 1 Story § 627. [7] Justice Story's position thus echoes that of Chief Justice Marshall in McCulloch v. Maryland 4 Wheat. 316, 4 L.Ed. 579 (1819). In McCulloch, the Court rejected the argument that the Constitution's silence on the subject of state power to tax corporations chartered by Congress implies that the States have "reserved" power to tax such federal instrumentalities. As Chief Justice Marshall pointed out, an "original right to tax" such federal entities "never existed, and the question whether it has been surrendered, cannot arise." Id., at 430. See also Crandall v. Nevada, 6 Wall. 35, 46, 18 L.Ed. 745 (1868). In language that presaged Justice Story's argument, Chief Justice Marshall concluded: "This opinion does not deprive the States of any resources which they originally possessed" 4 Wheat., at 436.FN15 FN15. Thus, contrary to the dissent's suggestion, post, at 1880, Justice Story was not the first, only, or even most influential proponent of the principle that certain powers are not reserved to the States despite constitutional silence. Instead, as Chief Justice Marshall's opinion in McCulloch reveals, that principle has been Page 16 a part of our jurisprudence for over 175 years. **1855 (8] *803 With respect to setting qualifications for service in Congress, no such right existed before the Constitution was ratified. The contrary argument overlooks the revolutionary character of the Government that the Framers conceived. Prior to the adoption of the Constitution, the States had joined together under the Articles of Confederation. In that system, "the States retained most of their sovereignty, like independent nations bound together only by treaties. " Wesberry v. Sanders, 376 U.S. 1, 9, 84 S.Ct. 526, 531, 11 L.Ed.2d 481 (1964). After the Constitutional Convention convened, the Framers were presented with, and eventually adopted a variation of, "a plan not merely to amend the Articles of Confederation but to create an entirely new National Government with a National Executive, National Judiciary, and a National Legislature." Id., at 10, 84 S.Ct., at 531. In adopting that plan, the Framers envisioned a uniform national system, rejecting the notion that the Nation was a collection of States, and instead creating a direct link between the National Government and the people of the United States. See, e.g., FERC v. Mississippi, 456 U.S. 742, 791, 102 S.Ct. 2126, 2154, 72 L.Ed.2d 532 (1982) (O'CONNOR, J., concurring in judgment in part and dissenting in part) ("The Constitution ... permittfed] direct contact between the National Government and the individual citizen"). In that National Government, representatives owe primary allegiance not to the people of a State, but to the people of the Nation. As Justice Story observed, each Member of Congress is "an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states.... Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people." 1 Story § 627. Representatives and Senators are as much officers of the entire Union as is the President. States thus "have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a president.... It is no original prerogative of state *804 power to appoint a representative, a senator, or president for m 2007 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. III http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l &prft=E TMLE&n=18&f... 3/14/2007 Page 18 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881,63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) the union" Ibid. FN16 FN16. The Constitution's provision for election of Senators by the state legislatures, see Art. I, § 3, cl. 1, is entirely consistent with this view. The power of state legislatures to elect Senators comes from an express delegation of power from the Constitution, and thus was not at all based on some aspect of original state power. Of course, with the adoption of the Seventeenth Amendment, state power over the election of Senators was eliminated, and Senators, like Representatives, were elected directly by the people. We believe that the Constitution reflects the Framers' general agreement with the approach later articulated by Justice Story. For example, Art. I, § 5, cl. 1, provides: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." The text of the Constitution thus gives the representatives of all the people the final say in judging the qualifications of the representatives of any one State. For this reason, the dissent falters when it states that "the people of Georgia have no say over whom the people of Massachusetts select to represent them in Congress" Post, at 1882. Two other sections of the Constitution further support our view of the Framers' vision. First, consistent with Story's view, the Constitution provides that the salaries of representatives should " be ascertained by Law, and paid out of the Treasury of the United States," Art. I, § 6, rather than by individual States. The salary provisions reflect the view that representatives owe their allegiance to the people, and not to the States. Second, the provisions governing elections reveal the Framers' understanding that powers over the election of federal officers had to be delegated to, rather than reserved by, the States. It is surely no coincidence that the context of federal elections provides one of the few areas in which the Constitution expressly requires action by the States, namely that "[t]he Times, Places and Manner of holding Elections for Page 17 Senators and Representatives, shall be *805 prescribed in each State by the Legislature thereof." Art. I, § 4, cl. 1. This duty parallels the duty under Article II that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." Art. II, § 1, cl. 2. These CIauses are express delegations of **1856 power to the States to act with respect to federal elections. FN17 FN17. The Clauses also reflect the idea that the Constitution treats both the President and Members of Congress as federal officers. This conclusion is consistent with our previous recognition that, in certain limited contexts, the power to regulate the incidents of the federal system is not a reserved power of the States, but rather is delegated by the Constitution. Thus, we have noted that "[w]hile, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, ... this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by § 2 of Art. I." United States v. Classic, 313 U.S. 299, 315, 61 S.Ct. 1031, 1037, 85 L.Ed. 1368 (1941). Cf. Hawke v. Smith, No. 1, 253 U.S. 221, 230, 40 S.Ct. 495, 64 L.Ed. 871 (1920) ("[T]he power to ratify a proposed amendment to the Federal Constitution has its source in the Federal Constitution. The act of ratification by the State derives its authority from the Federal Constitution to which the State and its people have alike assented"). In short, as the Framers recognized, electing representatives to the National Legislature was a new right, arising from the Constitution itself. The Tenth Amendment thus provides no basis for concluding that the States possess reserved power to add qualifications to those that are fixed in the Constitution. Instead, any state power to set the qualifications for membership in Congress must derive not from the reserved powers of state sovereignty, but rather from the delegated powers of national sovereignty. In the absence of any constitutional delegation to the States of power to Q 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 112 http://web2.westlaw.conVprinttprintstream. aspx?sv=Split&rlti=l &prft=HTNIU&n=18&f... 3/14/2007 Page 19 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881,63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) add qualifications to those enumerated in the Constitution, such a power does not exist. *806 The Preclusion of State Power (9) Even if we believed that States possessed as part of their original powers some control over congressional qualifications, the text and structure of the Constitution, the relevant historical materials, and, most importantly, the "basic principles of our democratic system" all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution. Much of the historical analysis was undertaken by the Court in Powell. See supra, at 1848-1850. There is, however, additional historical evidence that pertains directly to the power of the States. That evidence, though perhaps not as extensive as that reviewed in Powell, leads. unavoidably to the conclusion that the States lack the power to add qualifications. The Convention and Ratification Debates The available affirmative evidence indicates the Framers' intent that States have no role in the setting of qualifications. In Federalist Paper No. 52, dealing with the House of Representatives, Madison addressed the "qualifications of the electors and the elected." The Federalist No. 52, at 325. Madison first noted the difficulty in achieving uniformity in the qualifications for electors, which resulted in the Framers' decision to require only that the qualifications for federal electors be the same as those for state electors. Madison argued that such a decision "must be satisfactory to every State, because it is comfortable to the standard already established, or which may be established, by the State itself." Id., at 326. Madison then explicitly contrasted the state control over the qualifications of electors with the lack of state control over the qualifications of the elected: "The qualifications of the elected, being less carefully and properly defined by the State constitutions, and being at the same time more Page 18 susceptible of uniformity, *807 have been very properly considered and regulated by the convention. A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election be an inhabitant of the State he is to represent; and, during the time of his service must be in no office under the United States. Under**1857 these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith." Ibid. FN1s FN18. The dissent places a novel and implausible interpretation on this paragraph. Consistent with its entire analysis, the dissent reads Madison as saying that the sole purpose of the Qualifications Clauses was to set minimum qualifications that would prevent the States from sending incompetent representatives to Congress; in other words, Madison viewed the Clauses as preventing the States from opening the door to this part of the federal service too widely. See post, at 1901-1902. The text of The Federalist No. 52 belies the dissent's reading. First, Madison emphasized that "[tlhe qualifications of the elected ... [were] more susceptible of uniformity." His emphasis on uniformity would be quite anomalous if he envisioned that States would create for their representatives a patchwork of qualifications. Second, the idea that Madison was in fact concerned that States would open the doors to national service too widely is entirely inconsistent with Madison's emphasizing that the Constitution kept "the door ... open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith." The Federalist No. 52, at 326. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 11 http://web2.westlaw.conVprintlprintstream.aspx?sv=Split&rlti=l&prft=HTN E&n=18&f... 3/14/2007 Page 20 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) Finally the dissent argues that "Madison could not possibly have been rebuking the States for setting unduly high qualifications for their representatives in Congress," post, at 1901, and suggests that Madison's comments do not reflect "an implicit criticism of the States for setting unduly high entrance barriers," post, at 1902. We disagree. Though the dissent attempts to minimize the extensiveness of state -imposed qualifications by focusing on the qualifications that States imposed on delegates to Congress and the age restrictions that they imposed on state legislators, the dissent neglects to give appropriate attention to the abundance of property, religious, and other qualifications that States imposed on state elected officials. As we describe in some detail, infra, at 1864-1866, nearly every State had property qualifications, and many States had religious qualifications, term limits, or other qualifications. As Madison surely recognized, without a constitutional prohibition, these qualifications could be applied to federal representatives. We cannot read Madison's comments on the " open door" of the Federal Government as anything but a rejection of the `unduly high " barriers imposed by States. *808 Madison emphasized this same idea in The Federalist No. 57: "Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permined to fetter the judgment or disappoint the inclination of the people. " The Federalist No. 57, at 351 (emphasis added). The provisions in the Constitution governing federal elections confirm the Framers' intent that States lack power to add qualifications. The Framers feared that the diverse interests of the States would undermine the National Legislature, and thus they adopted provisions intended to minimize the possibility of state interference with Page 19 federal elections. For example, to prevent discrimination against federal electors, the Framers required in Art. I, § 2, cl. 1, that the qualifications for federal electors be the same as those for state electors. As Madison noted, allowing States to differentiate between the qualifications for state and federal electors "would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone." The Federalist No. 52, at 326. Similarly, in Art. I, § 4, cl. 1, though giving the States the freedom to regulate the "Times, Places and Manner of holding Elections," the Framers created a safeguard against state abuse by giving Congress the power to "by Law make or alter such Regulations." The Convention debates make clear that the Framers' overriding concern was the potential for States' abuse of the power to set the *809 "Times, Places and Manner" of elections. Madison noted that "[ilt was impossible to foresee all the abuses that might be made of the discretionary power." 2 Farrand 240. Gouverneur Morris feared that "the States might make false returns and then make no provisions for new elections." Id., at 241. When Charles Pinckney and John Rutledge moved to strike the congressional safeguard, the motion was soundly defeated. Id., at 240-241. As Hamilton later noted: "Nothing can be more evident than that an exclusive power of regulating elections for the national government, in the **1858 hands of the State legislatures, would leave the existence of the Union entirely at their mercy." The Federalist No. 59, at 363. See also ibid. (one justification for Times, Places and Manner Clause is that "[i]f we are in a humor to presume abuses of power, it is as fair to presume them on the part of the State governments as on the part of the general government"). FN19 FN19. The dissent attacks our holding today by arguing that the Framers' distrust of the States extended only to measures adopted by "state legislatures," and not to measures adopted by "the people themselves." Post, at 1896. See also post, at 1896 ("These delegates presumably did not want state legislatures O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 114 http://web2.westlaw.conilprintlpiintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 21 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) to be able to tell Members of Congress from their State" how to vote) (emphasis added). The novelty and expansiveness of the dissent's attack is quite astonishing. We are aware of no case that would even suggest that the validity of a state law under the Federal Constitution would depend at all on whether the state law was passed by the state legislature or by the people directly through amendment of the state constitution. Indeed, no party has so argued. Quite simply, in our view, the dissent's distinction between state legislation passed by the state legislature and legislation passed by state constitutional amendment is untenable. The qualifications in the Constitution are fixed, and may not be altered by either States or their legislatures. The Framers' discussion of the salary of representatives reveals similar concerns. When the issue was first raised, Madison argued that congressional compensation should be fixed in the Constitution, rather than left to state legislatures, because otherwise "it would create an improper dependence." I Farrand 216. George Mason agreed, noting *810 that "the parsimony of the States might reduce the provision so low that ... the question would be not who were most fit to be chosen, but who were most willing to serve." Ibid. When the issue was later reopened, Nathaniel Gorham stated that he "wished not to refer the matter to the State Legislatures who were always paring down salaries in such a manner as to keep out of offices men most capable of executing the functions of them." Id., at 372. Edmund Randolph agreed that "f i]f the States were to pay the members of the Nat[ional] Legislature, a dependence would be created that would vitiate the whole System" Ibid. Rufus King "urged the danger of creating a dependence on the States," ibid., and Hamilton noted that "[t]hose who pay are the masters of those who are paid," id., at 373. The Convention ultimately agreed to vest in Congress the power to set its own compensation. See Art. I, § 6.FN20 Page 20 FN20. The Framers' decision to reject a proposal allowing for States to recall their own representatives, see 1 Farrand 20, 217, reflects these same concerns. In light of the Framers' evident concern that States would try to undermine the National Government, they could not have intended States to have the power to set qualifications. Indeed, one of the more anomalous consequences of petitioners' argument is that it accepts federal supremacy over the procedural aspects of determining the times, places, and manner of elections while allowing the States cane blanche with respect to the substantive qualifications for membership in Congress. The dissent nevertheless contends that the Framers' distrust of the States with respect to elections does not preclude the people of the States from adopting eligibility requirements to help narrow their own choices. See post, at 1895-1896. As the dissent concedes, post, at 1898, however, the Framers were unquestionably concerned that the States would simply not hold elections for federal officers, and therefore the Framers gave Congress the power to " make *811 or alter" state election regulations. Yet under the dissent's approach, the States could achieve exactly the same result by simply setting qualifications for federal office sufficiently high that no one could meet those qualifications. In our view, it is inconceivable that the Framers would provide a specific constitutional provision to ensure that federal elections would be held while at the same time allowing States to render those elections meaningless by simply ensuring that no candidate could be qualified for office. Given the Framers' wariness over the potential for state abuse, we must conclude that the specification of fixed qualifications in the constitutional text was intended to prescribe uniform **1859 rules that would preclude modification by either Congress or the States.FN'-t FN21. The dissent's arguments concerning these provisions of the Constitution, see post, at 1896-1899, simply reinforce our argument that the constitutional provisions surrounding elections all reveal the m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1.15 http://web2.westlaw.con/print/printstream.aspx?sv=Split&rlti=l&prft=HTMLE&n=18&f... 3/14/2007 Page 22 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842; 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) Framers' basic fear that the States might act to undermine the National Legislature. For example, as the dissent concedes, the Framers feared that States would use the control over salaries to influence the votes of their representative. See post at 1896. Similarly, the dissent concedes that the Times, Places and Manner Clause reflects the Framers' fear that States would not conduct federal elections at all. See post, at 1898. We believe that the dissent's reading of the provisions at issue understates considerably the extent of the Framers' distrust. However, even under the dissent's reading of the provisions, the text of the Constitution unquestionably reveals the Framers' distrust of the States regarding elections, and thus provides powerful evidence supporting our view that the qualifications established in the Constitution are exclusive. We find further evidence of the Framers' intent in Art. I, § 5, cl. 1, which provides: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." That Art. I, § 5, vests a federal tribunal with ultimate authority to judge a Member's qualifications is fully consistent with the understanding that those qualifications are fixed in the Federal Constitution, but not with the understanding that they can be altered by the States. If the States had the right to prescribe additional qualifications -such *812 as property, educational, or professional qualifications -for their own representatives, state law would provide the standard for judging a Member's eligibility. As we concluded in Murdock v. Memphis, 20 Wall. 590, 22 L.Ed. 429 (1875), federal questions are generally answered finally by federal tribunals because rights which depend on federal law "should be the same everywhere" and "their construction should be uniform." Id., at 632. The judging of questions concerning rights which depend on state law is not, however, normally assigned to federal tribunals. See id., at 636. The Constitution's provision for each House to be the judge of its own qualifications thus provides further evidence that the Framers believed that the primary source of those qualifications would be federal law. Page 21 We also find compelling the complete absence in the ratification debates of any assertion that States had the power to add qualifications. In those debates, the question whether to require term limits , or "rotation," was a major source of controversy. The draft of the Constitution that was submitted for ratification contained no provision for rotation.22 In arguments that echo in the preamble to Arkansas' Amendment 73, opponents of ratification condemned the absence of a rotation requirement, noting that "there is no doubt that senators will hold their office perpetually; and in this situation, they must of necessity lose their dependence, and their attachments to the people." FN23 Even proponents **1860 of ratification*813 expressed concern about the "abandonment in every instance of the necessity of rotation in office." FN24 At several ratification conventions, participants proposed amendments that would have required rotation.FN25 FN22. A proposal requiring rotation for Members of the House was proposed at the Convention, see 1 Farrand 20, but was defeated unanimously, see id., at 217. There is no record of any debate on either occasion. FN23. 2 Elliofs Debates 309-310 (N.Y., Smith). See also id., at 287-288 (N.Y., G. Livingston) (Senators will enjoy "a security of their re-election, as long as they please.... In such a situation, men are apt to forget their dependence, lose their sympathy, and contract selfish habits.... The senators will associate only with men of their own class, and thus become strangers to the condition of the common people"); id., at 30-31 (Mass., Turner) (" Knowing the numerous arts that designing men are prone to, to secure their election, and perpetuate themselves, it is my hearty wish that a rotation may be provided for"); id., at 62 (Mass., Kingsley) ("1W]e are deprived of annual elections, have no rotation, and cannot recall our members; therefore our federal rulers will be masters, and not servants"); Samuel Bryan, " Centinel I," Independent Gazetteer (Phil., © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1-1.6 http:llweb2.westlaw.comlprindprintstream,.aspx?sv=Split&rlti=l&prft HTMLE&n=18&f... 3/14/2007 Page 23 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) Oct. 5, 1787), 1 Debate on the Constitution 52, 61 (B. Bailyn ed. 1990) (hereinafter Bailyn) ("[A]s there is no exclusion by rotation, [Senators] may be continued for life, which, from their extensive means of influence, would follow of course"); Letter from George Lee Turberville to Madison (Dec. 11, 1787), 1 Bailyn 477, 479 ("Why was not that truely republican mode of forcing the Rulers or sovereigns of the states to mix after stated Periods with the people again -observed"); Mercy Otis Warren, "A Columbian Patriot" (Boston, Feb. 1788), 2 Bailyn 284, 292 (" There is no provision for a rotation, nor any thing to prevent the perpetuity of office in the same hands for life.... By this neglect we lose the advantages of that check to the overbearing insolence of office, which by rendering him ineligible at certain periods, keeps the mind of man in equilibrio, and teaches him the feelings of the governed"). FN24. Letter of Dec. 20, 1787, from Thomas Jefferson to James Madison. 1 id., at 209, 211. In 1814, in another private letter, Jefferson expressed the opinion that the States had not abandoned the power to impose term limits. See Letter of Jan. 31, 1814, to Joseph C_ Cabell, in 14 Writings of Thomas Jefferson 82 (A. Lipscomb ed. 1904). Though he noted that his reasoning on the matter "appears to me to be sound," he went on to note: "but, on so recent a change of view, caution requires us not to be too confident, and that we admit this to be one of the doubtful questions on which honest men may differ with the purest of motives; and the more readily, as we find we have differed from ourselves on it." Id., at 83. The text of Jefferson's response clearly belies the dissent's suggestion that Jefferson "himself did not entertain serious doubts of its correctness." Post, at 1889, n. 14. Page 22 FN25. See n. 40, infra. The Federalists' responses to those criticisms and proposals addressed the merits of the issue, arguing that rotation was incompatible with the people's right to choose. As we noted above, Robert Livingston argued: *814 "The people are the best judges who ought to represent them. To dictate and control them, to tell them whom they shall not elect, is to abridge their natural rights. This rotation is an absurd species of ostracism." 2 Elliofs Debates 292-293. Similarly, Hamilton arguer] that the representatives' need for reelection rather than mandatory rotation was the more effective way to keep representatives responsive to the people, because "[w]hen a man knows he must quit his station, let his merit be what it may, he will turn his attention chiefly to his own emolument." Id, at 320.FN26 FN26. George Washington made a similar argument: "The power under the Constitution will always be in the People. It is entrusted for certain defined purposes, and for a certain limited period, to representatives of their own chusing; and whenever it is executed contrary to their Interest, or not agreeable to their wishes, their Servants can, and undoubtedly will be, recalled." 1 Bailyn 305,306-307. Regardless of which side has the better of the debate over rotation, it is most striking that nowhere in the extensive ratification debates have we found any statement by either a proponent or an opponent of rotation that the draft oonstitution would permit States to require rotation for the representatives of their own citizens. If the participants in the debate had believed that the States retained the authority to impose term limits, it is inconceivable that the Federalists would not have made this obvious response to the arguments of the pro -rotation forces. The absence in an otherwise freewheeling debate of any suggestion that States had the power to impose additional qualifications unquestionably reflects the Framers' common understanding that m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 117 http://web2.westlaw.cornlprinttprintstrearn. aspx?sv=Split&rlti=l &prft=HTNILE&n=18&f... 3/14/2007 Page 24 of 84 115 S.Ct. 1842 Page 23 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) States lacked that power. dissent, see post, at 1895, it seems to us irrelevant that the draft in question did not In short, if it had been assumed that States could include a comparable parenthetical clause add additional qualifications, that assumption would referring to "elected" Senators because the have provided the basis for a powerful rebuttal to draft contemplated that Senators, unlike the arguments being advanced. The failure of Representatives, would not be chosen by intelligent and experienced advocates to utilize this popular election. argument must reflect a general agreement*815 Nor is there merit to the argument that the that its premise was unsound, and that the power to inclusion in the Committee's final draft of a add qualifications was one that the Constitution provision allowing each House to add denied the States.FN27 property qualifications, see 2 Farrand 179, is somehow inconsistent with our holding today. First, there is no conflict between FN27. Petitioners set forth several other our holding that the qualifications for arguments to support their contention that Congress are fixed in the Constitution and the Convention and ratification debates a provision in the Constitution itself reveal that the qualifications in the providing for property qualifications. Qualifications Clauses were not intended Indeed, that is why our analysis is to be exclusive. We find none of these consistent with the other disqualifications persuasive. contained in the Constitution itself. See n. Petitioners first observe that the notes of 2, supra. The Constitution simply Edmund Randolph, who was a member of prohibits the imposition by either States or the Committee of Detail, reveal that an Congress of additional qualifications that early draft of the Qualifications Clause are not contained in the text of the provided: Constitution. Second, of course, the "The qualifications of (a) delegates shall property provision was deleted, thus be the age of twenty-five years at least. providing further evidence that the and citizenship: (and any person Framers wanted to minimize the barriers possessing these qualifications may be that would exclude the most able citizens elected except)." 2 Farrand 139 (footnote from service in the National Government. omitted). Respondent Republican Party of Arkansas Petitioners suggest that the deletion of the also argues that the negative phrasing of parenthetical material from the Clause the Qualifications Clauses suggests that suggests that the Framers did not intend they were not meant to be exclusive. the Qualifications Clause to be exclusive. Brief for Respondents Republican Party of We reject this argument. First, there is no Arkansas et al. 5-6. This argument was evidence that the draft in Randolph's notes firmly rejected in Powell, see 395 U.S., at was ever presented to the Convention, and 537-539, and n. 73, 89 S.Ct., at 1973, and thus the deletion of the Clause tells us little n. 73; see also Warren 422, n. 1, and we about the views of the Convention as a see no need to revisit it now. whole. Moreover, even assuming that the Convention had seen the draft, the deletion **1861 *816 Congressional Experience of the language without comment is at least as consistent with a belief -as suggested by Congress' subsequent experience with state -imposed Dickinson, see n. 9, supra -that the qualifications provides further evidence of the language was superfluous as with a general consensus on the lack of state power in this concern that the language was area. In Powell, we examined that experience and inappropriate. Finally, contrary to the noted that during the first 100 years of its existence, rather ingenious argument advanced in the "Congress strictly limited its power to judge the © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1 u http://web2.westlaw.comlprint/printstmam.aspx?sv=Split&rlti=l &prft=HTMLE&.n=18&f... 3/14/2007 Page 25 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.CL 1842) qualifications of its members to those enumerated in the Constitution." 395 U.S., at 542, 89 S.Ct., at 1974. Congress first confronted the issue in 1807 when it faced a challenge to the qualifications of William McCreery, a Representative from Maryland who allegedly did not satisfy a residency requirement imposed by that State. In recommending that McCreery be seated, the Report of the House Committee on Elections noted_ 'The committee proceeded to examine the Constitution, with relation to the case submitted to them, and find that qualifications of members are therein determined, without reserving any authority to the State Legislatures to change, add to, or diminish those qualifications; and that, by that instrument, Congress is constituted the sole judge of the qualifications prescribed by it, and are obliged to decide agreeably to the Constitutional rules... ' " Powell, 395 U.S., at 542, 89 S.Ct., at 1975 quoting 17 Annals of Cong. 871 (1807) (emphasis added). FN28 FN28. We recognize that the "Committee of Elections were not unanimous in these sentiments," and that a "minority advocated the right of the State Legislature to prescribe additional qualifications to the members from the respective States." 17 Annals of Cong. 873 (1807). The Chairman of the House Committee on Elections elaborated during debate: *817 " 'The Committee of Elections considered the qualifications of members to have been unalterably determined by the Federal Convention, unless changed by an authority equal to that which framed the Constitution at first; that neither the State nor the Federal Legislatures are vested with authority to add to those qualifications, so as to change them.' " Powell, 395 U.S., at 542-543, 89 S.Ct., at 1975, quoting from 17 Annals of Cong. 872 (1807). As we noted in Powell, the congressional debate over the committee's recommendation tended to focus on the "narrow issue of the power of the States to add to the standing qualifications set forth Page 24 in the Constitution," 395 U.S., at 543, 89 S.Ct., at 1975. The whole House, however, did not vote on the committee's Report, and instead voted only on a simple resolution: "Resolved, That William McCreery is entitled to his seat in this House." 17 Annals of Cong. 1238 (1807). That resolution passed by a vote of 89 to 18. Ibid. Though the House Debate may be inconclusive, commentators at the time apparently viewed the seating of McCreery as confirmation of the States' lack of power to add qualifications. For example, in a letter to Joseph Cabell, Thomas Jefferson noted the argument that "to add new qualifications to those of the Constitution would be as much an alteration as to detract from them"; he then added: "And so I think the House of **1862 Representatives of Congress decided in some case; I believe that of a member from Baltimore." Letter of Jan. 31, 1814, to Joseph C. CabeIl, in 14 Writings of Thomas Jefferson 82 (A. Lipscomb ed. 1904). Similarly, for over 150 years prior to Powell, commentators viewed the seating of McCreery as an expression of the view of the House that States could not add to the qualifications established in the Constitution. Thus, for example, referring to the McCreery debates, one commentator noted, "By the decision in this case, [and that in another contested election], it seems to have been settled that the States have not a right to require qualifications from members, different *818 from, or in addition to, those prescribed by the constitution." Cases of Contested Elections in Congress 171 (M. Clarke & D. Hall eds. 1834) (emphasis in original). Other commentators viewed the incident similarly. See, e.g., G. Paschal, The Constitution of the United States 66 (1876) (citing McCreery to support the proposition that "[tlhe Constitution having fixed the qualifications of members, no additional qualifications can rightfully be required by the States ") (emphasis in original); G. McCrary, American Law of Elections § 323 (4th ed. 1897) (citing McCreery and stating "A state law requiring that a Representative in Congress shall reside in a particular town and country within the district from which he is chosen is unconstitutional and void"); W. Sutherland, Notes on the Constitution of the © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 119 http://web2.westlaw.comlprintlprintstremn.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 26 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) United States 40 (1904) (citing McCreery to support statement that "[t]his clause fixes the qualifications of members so far as state action is concerned, and no additional qualifications can be required by the state"); C. Burdick, Law of the American Constitution 160 (1922) (citing McCreery to support the proposition that state -imposed " limitations have been held ... not to be effective"). Finally, it is clear that in Powell we viewed the seating of McCreery as the House's acknowledgment that the qualifications in the Constitution were fixed. See 395 U.S., at 542-543, 89 S.Ct., at 1975. The Senate experience with state -imposed qualifications further supports our conclusions. In 1887, for example, the Senate seated Charles Faulkner of West Virginia, despite the fact that a provision of the West Virginia Constitution purported to render him ineligible to serve. The Senate Committee on Privileges and Elections unanimously concluded that "no State can prescribe any qualification to the office of United States Senator in addition to those declared in the Constitution of the United States." S.Rep. No. 1, 50th Cong., 1st Sess., 4 (1887). The Senate Committee on Rules and Administration reached the same conclusion in 1964 when faced with a challenge to Pierre Salinger, who had *819 been appointed to serve as Senator from California. See S.Rep. No. 1381, 88th Cong., 2d Sess., 5 ("It is well settled that the qualifications established by the U.S. Constitution for the office of U.S. Senator are exclusive, and a State cannot, by constitutional or statutory provisions, add to or enlarge upon those qualifications'). We recognize, as we did in Powell, that " congressional practice has been erratic" FN29 and that the precedential value of congressional exclusion cases is "quite limited." Powell, 395 U.S., at 545-546, 89 S.Ct., at 1976-77. Nevertheless, those incidents lend support to the result we reach today. FN29. See, e.g., Powell, 395 U.S., at 544-546, 89 S.Ct., at 1975-1977 (noting examples). Page 25 Democratic Principles Our conclusion that States lack the power to impose qualifications vindicates the same "fundamental principle of our representative democracy" that we recognized in Powell, namely, that "the people should choose whom they please to govem them" Id., at 547, 89 S.Ct., at 1977 (internal quotation marks omitted). As we noted earlier, the Powell Court recognized that an egalitarian ideal -that election to the National Legislature should be open to all people of merit -provided a critical foundation for the constitutional structure. This egalitarian theme echoes throughout the constitutional debates. In The Federalist No. 57, for example, Madison wrote: "Who are to be the objects of popular choice? Every citizen whose merit may **1863 recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgment or disappoint the inclination of the people. " The Federalist No. 57, at 351. Similarly, hoping to persuade voters in New York that the Constitution should be ratified, John Stevens, Jr., wrote: *820 "[N]o Government, that has ever yet existed in the world, affords so ample a field, to individuals of all ranks, for the display of political talents and abilities.... No man who has real merit, let his situation be what it will, need despair." 1 Bailyn 487, 492. And Timothy Pickering noted that, "while several of the state constitutions prescribe certain degrees of property as indispensable qualifications for offices, this which is proposed for the U.S. throws the door wide open for the entrance of every man who enjoys the confidence of his fellow citizens." Letter from T. Pickering to C. Tillinghast (Dec. 24, 1787), 1 Bailyn 289, 290 (emphasis in original).FN30 Additional qualifications pose the same obstacle to open elections whatever their source. The egalitarian ideal, so valued by the Framers, is thus compromised to the same degree by additional qualifications imposed by States as by those imposed by Congress. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstreaTh.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/ 14/2007 Page 27 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) FN30. See also 2 Farrand 123 (it is " improper that any man of merit should be subjected to disabilities in a Republic where merit was understood to form the great title to public trust, honors & rewards ") (Dickinson); The Federalist No. 36, at 217 ("There are strong minds in every walk of life that will rise superior to the disadvantages of situation and will command the tribute due to their merit, not only from the classes to which they particularly belong, but from the society in general. The door ought to be equally open to all") (Hamilton); N. Webster, "A Citizen of America;' (Phil., Oct. 17, 1787), 1 Bailyn 129, 142 ("[M]oney is not made a requisite -the places of senators are wisely left open to all persons of suitable age and merit"). Similarly, we believe that state -imposed qualifications, as much as congressionally imposed qualifications, would undermine the second critical idea recognized in Powell: that an aspect of sovereignty is the right of the people to vote for whom they wish. Again, the source of the qualification is of little moment in assessing the qualification's restrictive impact. [10][11][12] Finally, state -imposed restrictions, unlike the congressionally imposed restrictions at issue in Powell, violate a third idea central to this basic principle: that the right to choose *821 representatives belongs not to the States, but to the people. From the start, the Framers recognized that the "great and radical vice" of the Articles of Confederation was "the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of whom they consist.? The Federalist No. 15, at 108 (Hamilton). Thus the Framers, in perhaps their most important contribution, conceived of a Federal Government directly responsible to the people, possessed of direct power over the people, and chosen directly, not by States, but by the people. See, e.g., supra, at 1854-1855. The Framers implemented this ideal most clearly in the Page 26 provision, extant from the beginning of the Republic, that calls for the Members of the House of Representatives to be "chosen every second Year by the People of the several States" Art. 1, § 2, cl. 1 . Following the adoption of the Seventeenth Amendment in 1913, this ideal was extended to elections for the Senate. The Congress of the United States, therefore, is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the people. As Chief Justice John Marshall observed: "The government of the Union, then, ... is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." McCulloch v. Maryland, 4 Wheat., at 404-405 FN31 Ours is a **1864 "government of the people, by' the people, for the people." A. Lincoln, Gettysburg Address (1863). FN31. Cf. Hawke v. Smith (No. 1), 253 U.S. 221, 226, 40 S.Ct. 495, 496-497, 64 L.Ed. 871 (1920) ("The Constitution of the United States was ordained by the people, and, when duly ratified, it became the Constitution of the people of the United States'). Compare U.S. Const., Preamble ( "We the People'), with The Articles of Confederation, reprinted in 2 Bailyn 926 (" we the under signed Delegates of the States '). *822 The Framers deemed this principle critical when they discussed qualifications. For example, during the debates on residency requirements, Morris noted that in the House, "the people at large, not the States, are represented." 2 Farrand 217 (emphasis in original) (footnote omitted). Similarly, George Read noted that the Framers " were forming a Nati[ona]l Gov [emmen]t and such a regulation would correspond little with the idea that we were one people." Ibid. (emphasis in original). James Wilson "enforced the same consideration." Ibid. Consistent with these views, the constitutional m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 121. http://web2.westlaw.com/printlprintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 28 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.CL 1842) structure provides for a uniform salary to be paid from the national treasury, allows the States but a limited role in federal elections, and maintains strict checks on state interference with the federal election process. The Constitution also provides that the qualifications of the representatives of each State will be judged by the representatives of the entire Nation. The Constitution thus creates a uniform national body representing the interests of a single people. [13] Permitting individual States to formulate diverse qualifications for their representatives would result in a patchwork of state qualifications, undermining the uniformity and the national character that the Framers envisioned and sought to ensure. Cf. McCulloch v. Maryland, 4 Wheat., at 428-429 C Those means are not given by the people of a particular State, not given by the constituents of the legislature, ... but by the people of all the States. They are given by all, for the benefit of all -and upon theory, should be subjected to that government only which belongs to all"). Such a patchwork would also sever the direct link that the Framers found so critical between the National Government and the people of the United States. FN32 FN32. There is Iittle significance to the fact that Amendment 73 was adopted by a popular vote, rather than as an Act of the state legislature. See n. 19, supra. In fact, none of the petitioners argues that the constitutionality of a state law would depend on the method of its adoption. This is proper, because the voters of Arkansas, in adopting Amendment 73, were acting as citizens of the State of Arkansas, and not as citizens of the National Government. The people of the State of Arkansas have no more power than does the Arkansas Legislature to supplement the qualifications for service in Congress. As Chief Justice Marshall emphasized in McCulloch, "Those means are not given by the people of a particular State, not given by the constituents of the legislature, ... but by the people of all the Page 27 States." 4 Wheat., at 428-429. The dissent concedes that the people of the Nation have an interest in preventing any State from sending "immature, disloyal, or unknowledgeable representatives to Congress," post, at 1886, but does not explain why the people of the Nation lack a comparable interest in allowing every State to send mature, loyal, and knowledgeable representatives to Congress. In our view, the interest possessed by the people of the Nation and identified by the dissent is the same as the people's interest in making sure that, within "reasonable limitations, the door to this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith." The Federalist No. 52, at 326. *823 State Practice Petitioners attempt to overcome this formidable array of evidence against the States' power to impose qualifications by arguing that the practice of the States immediately after the adoption of the Constitution demonstrates their understanding that they possessed such power. One may properly question the extent to which the States' own practice is a reliable indicator of the contours of restrictions that the Constitution imposed on States, especially when no court has ever upheld a state -imposed qualification of any sort. See supra, at 1852-1853. But petitioners' argument is unpersuasive even on its own terms. At the time of the Convention, " [a]lmost all the State Constitutions required members of their Legislatures to possess considerable property." See Warren 416-417 rta33 Despite this near uniformity, only one **1865 *824 State, Virginia, placed similar restrictions on Members of Congress, requiring that a representative be, inter alia, a "freeholder." See 1788 Va.Acts, ch. 2, § 2.FN34 Just 15 years after imposing a property qualification, Virginia replaced that requirement with a provision requiring that representatives be only "qualified according to the constitution of the United States" 1813 Va.Acts, © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 122 http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l&prft=HTNR E&n=18&f... 3/14/2007 Page 29 of 84 115 S.Ct. 1842 Page 28 514 U.S. 779,115 S.Ct. 1842, 131 L.Ei.2d 881, 63 USLW 4413 (City: as: 514 U.S. 779,115 S.Ct.1942) ch. 23, § 2. Moreover, several States, including qualifications which the constitution does New Hampshire, Georgia, Delaware, and South not, may possibly be found to be nugatory." Carolina, revised their Constitutions at around the 1 W. Blackstone, Commentaries time of the Federal Constitution. In the revised Appendix 213 (S. Tuckered. 1803). Constitutions, each State retained property Judge Tucker noted the two primary qualifications for its own *825 state elected arguments against the power to add such a officials yet placed no property qualification on its qualification: congressional representatives.FN35 "First, that in a representative government, the people have an undoubted right to judge for themselves of the qualification of FN33. See, e.g., 7 Federal and State their delegate, and if their opinion of the Constitutions, Colonial Charters, and integrity of their representative will supply Other Organic Laws of the States, the want of estate, there can be no reason Territories, and Colonies 3816 (F. Thorpe for the government to interfere, by saying, ed. 1909) (hereinafter Thorpe) (Virginia) that the latter must and shall overbalance (members of state legislature must be the former. freeholders); 4 id., at 2460, 2461 (New "Secondly; by requiring a qualification in Hampshire) (freehold estate of 200 pounds estate it may often happen, that men the for state senators; estate of 100 pounds, at best qualified in other respects might be least half of which is freehold, for state incapacitated from serving their country." representatives); 3 id., at 1691, 1694 Ibid (Maryland) (real and personal property of over 500 pounds for House of Delegates; FN35. See 4 Thorpe 2477, 2479 (New real and personal property of 1,000 pounds Hampshire) (100 pounds for House; 200 for Senate); id, at 1897, 1898 (freehold pounds for Senate); 2 id., at 786 (Georgia) estate of 300 pounds or personal estate of (200 acres of land or • 150 pounds for 600 pounds for state senators; freehold House; 250 acres of Iand or 250 pounds estate of 100 pounds or ratable estate of for Senate); 6 id, at 3259 (South 200 pounds for state representatives); 1 id, Carolina) (500 acres and 10 slaves or 150 at 562 (Delaware) (state legislators must pounds sterling for House; 300 pounds be freeholders); 5 id, at 2595 (New sterling for Senate); 1 id., at 570, 571 Jersey) (members of Legislative Council (Delaware) (freehold for House; freehold must be freeholders and must have real and estate of 200 acres or real and personal personal property of 1,000 pounds; property of 1,000 pounds for Senate). members of Assembly must have real and Pennsylvania amended its Constitution in personal property of 500 pounds); id., at 1790. Neither the old constitution nor the 2631 (New York) (state senators must be amended one contained property freeholders); id., at 2790 (North Carolina) qualifications for state representatives. (100 acres of land for House; 300 acres of See 5 id, at 3084; id, at 3092-3093. land in Senate); 2 id., at 779 (Georgia) Several State Constitutions also imposed (150 acres of land or property of 250 religious qualifications on state pounds); 6 id., at 3251 (South Carolina) representatives. For example, New (freehold estate of 2,000 pounds for state Hampshire's Constitution of 1784 and its senate). Constitution of 1792 provided that members of the State Senate and House of FN34. Judge Tucker expressed doubt Representatives be "of the protestant about the constitutionality of the religion." 4 id., at 2460, 2461-2462 provisions of the Virginia statute, noting (1784 Constitution); id., at 2477, 2479 that "these provisions, as they require (1792 Constitution). North Carolina's © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. IL23 http://web2.westlaw.com/print/printstream.aspx?sv=Split&rlti=1&prft=IrIW E&n=18&f... 3/14/2007 Page 30 of 84 115 S.Ct. 1842 Page 29 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.CL 1842) Constitution provided that "no clergyman, FN37. See 1 Farrand 20 ("Res[olved] that or preacher of the gospel, of any the members of the first branch of the denomination, shall be capable of being a National Legislature ought ... to be member of either the Senate, House of incapable of reelection for the space of Commons, or Council of State," 5 id., at [blank] after the expiration of their term of 2793, and that "no person, who shall deny service"). See also n. 22, supra. the being of God or the truth of the Protestant religion ... shall be capable of FN38. See, e.g., G. Wood, Creation of the holding any office or place of trust or American Republic, 1776-1787, p. 140 profit in the civil department within this (1969) (noting that 7 of the 10 State State," ibid. Georgia and South Carolina Constitutions drafted in 1776-1777 also had religious qualifications in their provided for term limits on their state Constitutions for state legislators, see 2 id., executives); see also App. to Brief for at 779 (Georgia) ("of the Protestant State Petitioner 1b-34b (describing religion"); 6 id., at 3252 (South Carolina) provisions of State Constitutions). (must be "of the Protestant religion"), but deleted those provisions when they FN39. 3 Thorpe 1695-1697 (Maryland); 4 amended their Constitutions, in 1789, see 2 id, at 2467 (New Hampshire); 5 id, at id, at 785, and in 1790, see 6 id., at 3258, 3085 (Pennsylvania); 5 id., at 2793 (North respectively. Article VI of the Federal Carolina). Constitution, however, prohibited States from imposing similar qualifications on FN40. New York attached to its federal legislators. ratification a list of proposed amendments and "enjoin[ed] it upon their The contemporaneous state practice with respect to representatives in Congress to exert all term limits is similar. At the time of the their influence, and use all reasonable Convention, States widely supported term limits in means, to obtain a ratification." i Elliot's at least some circumstances. The Articles of Debates 329. One of the proposed Confederation contained a provision for term limits. amendments was "That no person be FN36 As we have noted, some members of the eligible as a senator for more than six Convention had sought to impose term limits for years in any term of twelve years." Id, at Members of Congress FN37 In addition, many 330. In Virginia, the Convention similarly States imposed**1866 term limits on *826 state "enjoin[ed] it upon their representatives," officers,FN38 four placed limits on delegates to the 2 Bailyn 564, to adopt "a Declaration or Continental Congress, 39 and several States Bill of Rights," id., at 558, which would voiced support for term limits for Members of include the statement that members of the o Congress. Despite this widespread support, Executive and Legislative Branches " should, at fixed periods be reduced to a no State sought to impose any term limits on its private station, return into the mass of the own federal representatives. Thus, a proper people; and the vacancies be supplied by assessment of contemporaneous state practice certain and regular elections; in which all provides further persuasive evidence of a general or any part of the former members to be understanding that the qualifications in the eligible or ineligible, as the rules of the Constitution were unalterable by the States.FN41 Constitution of Government, and the laws shall direct," id, at 559. The North Carolina Convention proposed nearly FN36. See 2 Bailyn 926, 927 ("[N]o identical language, see id., at 566, though person shall be capable of being a delegate that Convention ultimately did not ratify for more than three years in any term of six the Constitution, see 4 Elliot's Debates ye © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 124 http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l&prft=HT ME&n=18&f... 3/14/2007 Page 31 of 84 115 S.Ct. 1842 Page 30 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) 250-251. Thus, at least three States that state practice is even less indicative of proposed some form of constitutional the Framers' understanding of state power. amendment supporting term limits for Finally, it is important to reemphasize that Members of Congress. the dissent simply has no credible explanation as to why almost every State FN41. Petitioners and the dissent also imposed property qualifications on state point out that Georgia, Maryland, representatives but not on federal Massachusetts, Virginia, and North representatives. The dissent relies first on Carolina added district residency the obvious but seemingly irrelevant requirements, and petitioners note that proposition that the state legislatures were New Jersey and Connecticut established larger than state congressional delegations. nominating processes for congressional Post, at 1907. n. 37. If anything, the candidates. They rely on these facts to smaller size of the congressional show that the States believed they had the delegation would have made States more power to add qualifications. We again are likely to put qualifications on federal unpersuaded. First, establishing a representatives since the election of any " nominating process is no more setting a pauper" would have had proportionally qualification for office than is creating a greater significance. The dissent also primary. Second, it seems to us that suggests that States failed to add States may simply have viewed district qualifications out of fear that others, e.g., residency requirements as the necessary Congress, believed that States lacked the analog to state residency requirements. power to add such qualifications. Of Thus, state practice with respect to course, this rationale is perfectly consistent residency requirements does not with our view that the general necessarily indicate that States believed understanding at the time was that States that they had a broad power to add lacked the power to add qualifications. restrictions. Finally, • we consider the number of state -imposed qualifications to *827 In sum, the available historical and textual be remarkably small. Despite the array of evidence, read in light of the basic principles of property, religious, and other qualifications democracy underlying the Constitution and that were contained in state constitutions, recognized by this Court in Powell, reveal the petitioners and the dissent can point to Framers' intent that neither Congress nor the States only one instance of a state -imposed should possess the power to supplement the property qualification on candidates for exclusive qualifications set forth in the text of the Congress, and five instances of district Constitution. residency requirements. The state practice seems to us notable for its restraint, and thus supports the conclusion *828IV that States did not believe that they generally had the power to add Petitioners argue that, even if States may not add qualifications. qualifications, Amendment 73 is constitutional Nor are we persuaded by the more recent **1867 because it is not such a qualification, and state practice involving qualifications such because Amendment 73 is a permissible exercise of as those that bar felons from being elected. state power to regulate the "Times. Places and As we have noted, the practice of States Manner of holding Elections." We reject these is a poor indicator of the effect of restraints contentions. on the States, and no court has ever upheld one of these restrictions. Moreover, as Unlike H 1 and 2 of Amendment 73, which create one moves away from 1789, it seems to us absolute bars to service for long-term incumbents © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 125 http://web2.westlaw.com/print/printstream. aspx?sv=Split&rlti= l &prft=HTMLE&n=18&f... 3/ 14/2007 Page 32 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842. 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) running for state office, § 3 merely provides that certain Senators and Representatives shall not be certified as candidates and shall not have their names appear on the ballot. They may run as write-in candidates and, if elected, they may serve. Petitioners contend that only a legal bar to service creates an impermissible qualification, and that Amendment 73 is therefore consistent with the Constitution. Petitioners support their restrictive definition of qualifications with language from Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) , in which we faced a constitutional challenge to provisions of the California Elections Code that regulated the procedures by which both independent candidates and candidates affiliated with qualified political parties could obtain ballot position in general elections. The code required candidates affiliated with a qualified party to win a primary election, and required independents to make timely filing of nomination papers signed by at least 5% of the entire vote cast in the last general election. The code also denied ballot position to independents who had voted in the most recent primary election or who had registered their affiliation with a qualified party during the previous year. In Storer, we rejected the argument that the challenged procedures created additional qualifications as "wholly without merit." Id, at 746, n. 16, 94 S.Ct., at 1287, n. 16. We noted that petitioners "would not have been disqualified had they been nominated at a party primary or by an adequately supported independent petition and then elected at the general election." Ibid. *829 We concluded that the California Code "no more establishes an additional requirement for the office of Representative than the requirement that the candidate win the primary to secure a place on the general ballot or otherwise demonstrate substantial community support." Ibid. See also Joyner v. Mofford, 706 F.2d, at 1531; Hopfmann v. Connolly, 746 F.2d 97, 103 (CAI 1984), vacated in part on other grounds, 471 U.S. 459, 105 S.Ct. 2106, 85 L.Ed.2d 469 (1985). Petitioners maintain that, under Storer, Amendment 73 is not a qualification. [14] We need not decide whether petitioners' Page 31 narrow understanding of qualifications is correct because, even if it is, Amendment 73 may not stand. As we have often noted, " `f constitutional rights would be of little value if they could be ... indirectly denied.' " Harman v. Forssenius, 380 U.S. 528, 540, 85 S.Ct. 1177, 1185, 14 L.Ed.2d 50 (1965), quoting Stnith v. Allwright, 321 U.S. 649, 664, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944). The Constitution "nullifies sophisticated as well as simple-minded modes" of infringing on constitutional protections. Larne v. Wilson, 307 U.S. 268, 275, 59 S.Ct, 872, 876, 83 L.Ed. 1281 (1939); Harman v. Forssenitts, 380 U.S., at 540-541, 85 S.Ct., at 1185. [15] In our view, Amendment 73 is an indirect attempt to accomplish what the Constitution prohibits Arkansas from accomplishing directly. As the plurality opinion of the Arkansas Supreme Court recognized, Amendment 73 is an "effort to dress eligibility to stand for Congress in ballot access clothing," because the "intent and the effect of Amendment 73 are to disqualify congressional incumbents from further service." 316 Ark., at 266, 872 S.W.2d, at 357 FN42 We must, of course, accept the state court's view of the purpose of its own law: We are thus authoritatively informed that the sole purpose of § 3 of Amendment 73 was to attempt to achieve a result that is forbidden by the Federal Constitution. Indeed,*830 it cannot be seriously contended that the intent behind Amendment 73 is other than to prevent the election **1868 of incumbents. The preamble of Amendment 73 states explicitly: "[T]he people of Arkansas ... herein limit the terms of elected officials." Sections I and 2 create absolute limits on the number of terms that may be served. There is no hint that § 3 was intended to have any other purpose. FN42. Justice Dudley noted in his concurrence: "I am reassured by the style of this case, U.S. Term Limits, Inc. That name implies just what this amendment is: A practical limit on the terms of the members of the Congress." 316 Ark., at 276, 872 S.W.2d, at 364 (opinion concurring in part and dissenting in part). m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1_26 http://web2.westlaw.comlprintlprintstreaxn.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 33 of 84 115 S.Ct. 1842 Page 32 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) Petitioners do, however, contest the Arkansas that the Arkansas Supreme Court found the Supreme Court's conclusion that the amendment has possibility of a write-in victory to be a the same practical effect as an absolute bar. They mere "glimme[r] of opportunity for those argue that the possibility of a write-in campaign disqualified." 316 Ark., at 266, 872 creates a real possibility for victory, especially for S.W.2d, at 357; see also id., at 276, 872 an entrenched incumbent. One may reasonably S.W.2d, at 364 (Dudley, J., concurring in question the merits of that contention FN43 Indeed, part and dissenting in part) ("as a practical we are advised by the state court that there is matter, the amendment would place term nothing more than a faint glimmer of possibility that limits on service in the Congress"). the excluded candidate will win FN44 Our prior cases, too, have suggested that *831 write-in FN44. Contrary to the dissent, post, at candidates have only a slight chance of victory. FN45 1910, we read a majority of the Arkansas But even if petitioners are correct that Supreme Court as holding that Amendment incumbents may occasionally win reelection as 73 has the same practical effect as an write-in candidates, there is no denying that the absolute bar. See 316 Ark., at 266, 872 ballot restrictions will make it significantly more S.W.2d, at 357 (plurality opinion) (the " difficult for the barred candidate to win the election. intent and the effect of Amendment 73 are In our view, an amendment with the avowed to disqualify congressional incumbents purpose and obvious effect of evading the from further service"); id., at 276, 872 requirements of the Qualifications Clauses by S.W.2d, at 364 (Dudley, J., concurring in handicapping a class of candidates cannot stand. part and dissenting in part) ("That name To argue otherwise is to suggest that the Framers implies just what this amendment is: A spent significant time and energy in debating and practical limit on the terms of the members crafting Clauses that could be easily evaded. More of the Congress"). However, as we note importantly, allowing States to evade the in the text, infra, at 1868, we do not rely Qualifications Clauses by "dress[ing] eligibility to on the state court's finding on this point. stand for Congress in ballot access clothing" See also infra, at 1871. trivializes the basic principles of our democracy that underlie those Clauses. Petitioners' argument treats FN45. We noted in Lubin v. Pa►sish, 415 the Qualifications Clauses not as the embodiment of U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 a grand principle, but rather as empty formalism. " ' (1974), that "[t]he realities of the electoral It is inconceivable that guaranties embedded in the process ... strongly suggest that 'access' Constitution of the United States may thus be via write-in votes falls far short of access manipulated out of existence! " Gomillion v. in terms of having the name of the Lightfoot, 364 U.S. 339, 345, 81 S.Ct. 125, 129, 5 candidate on the ballot." Id., at 719, n. 5, L.Ed.2d 110 (1960), quoting Frost & Frost 94 S.Ct., at 1321, n. 5; see also Anderson Trucking Co. v. Railroad Comm'n of Cal., 271 U.S. v. Celebrezze, 460 U.S. 780, 799, n. 26, 583, 594, 46 S.Ct. 605, 607, 70 L.Ed. 1101 (1926). 103 S.Ct. 1564, 1575, n. 26, 75 L.Ed.2d 547 (1983) ("We have previously noted that [a write-in] opportunity is not an FN43. The uncontested data submitted to adequate substitute for having the the Arkansas Supreme Court indicate that, candidates name appear on the printed in over 1,300 Senate elections since the ballot"); United States v. Classic, 313 passage of the Seventeenth Amendment in U.S. 299, 313, 61 S.Ct. 1031, 1036-37, 85 1913, only 1 has been won by a write-in L.Ed• 1368 (1941) ("Even if ... voters may candidate. In over 20,000 House lawfully write into their ballots, cast at the elections since the turn of the century, only general election, the name of a candidate 5 have been won by write-in candidates. rejected at the primary and have their App. 201-202. Indeed, it is for this reason ballots counted, the practical operation of © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 12.i http://web2.westlaw.com/print/printstream.aspx?sv=Split&rlti=l&prft HTMLE&n=18&f... 3/14/2007 Page 34 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) the primary law ... is such as to impose serious restrictions upon the choice of candidates by the voters"); Burdick v. Takushi, 504 U.S. 428, 437, n. 7, 112 S.Ct. 2059, 2065, n. 7, 119 L.Ed.2d 245 (1992) ( "If the dissent were correct in suggesting that requiring primary voters to select a specific ballot impermissibly burdened the right to vote, it is clear under our decisions that the availability of a write-in option would not provide an adequate remedy"). *832 Petitioners make the related argument that Amendment 73 merely regulates the "Manner" of elections, and that the amendment**1869 is therefore a permissible exercise of state power under Article I, § 4, cl. I (the Elections Clause), to regulate the "Times, Places and Manner" of elections FN46 We cannot agree. FN46. Article I, § 4, cl. 1, provides: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." A necessary consequence of petitioners' argument is that Congress itself would have the power to "make or alter" a measure such as Amendment 73. Art. 1, § 4, cl. 1. See Smiley v. Holm, 285 U.S. 355, 366-367, 52 S.Ct. 397, 399, 76 L.Ed. 795 (1932) (" [T)he Congress may supplement these state regulations or may substitute its own'7. That the Framers would have approved of such a result is unfathomable. As our decision in Powell and our discussion above make clear, the Framers were particularly concerned that a grant to Congress of the authority to set its own qualifications would lead inevitably to congressional self-aggrandizement and the upsetting of the delicate constitutional balance. See supra, at 1848-1849, and n. 10, supra. Petitioners would have us believe, however, that even as the Framers carefully circumscribed congressional power to set qualifications, they intended to allow Congress to achieve the same Page 33 result by simply formulating the regulation as a ballot access restriction under the Elections Clause. We refuse to adopt an interpretation of the Elections Clause that would so cavalierly disregard what the Framers intended to be a fundamental constitutional safeguard. Moreover, petitioners' broad construction of the Elections Clause is fundamentally inconsistent with the Framers' view of that Clause. The Framers intended the Elections Clause to grant States authority to create procedural regulations, not to provide States with license to exclude classes of candidates*833 from federal office. During the Convention debates, for example, Madison illustrated the procedural focus of the Elections Clause by noting that it covered "[w]hether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, sh[oulld all vote for all the representatives; or all in a district vote for a number allotted to the district" 2 Farrand 240. Similarly, during the ratification debates, proponents of the Constitution noted: " [T]he power over the manner only enables them to determine how these electors shall elect -whether by ballot, or by vote, or by any other way." 4 Elliot's Debates 71 (Steele statement at North Carolina ratifying convention) (emphasis in original).FN47 FN47. See also "the Republican," Connecticut Courant (Hartford, Jan. 7, 1788), 1 Bailyn 710, 713 ("The constitution expressly provides that the choice shall be by the people, which cuts off both from the general and state Legislatures the power of so regulating the mode of election, as to deprive the people of a fair choice"). Hamilton made a similar point in The Federalist No. 60, in which he defended the Constitution's grant to Congress of the power to override state regulations. Hamilton expressly distinguished the broad power to set qualifications from the limited authority under the Elections Clause, noting that "there is no method of securing to the rich the preference apprehended - but by prescribing © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 128 http://web2.westlaw.comlpiintlprintstream.aspx?sv=Split&rlti=l&pj- t=HTMLE&n=I8&f,.. 3/14/2007 Page 35 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1942, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) qualifications of property either for those who may elect or be elected. But this forms no part of the power ' to be conferred upon the national government. Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections." The Federalist No. 60, at 371(emphasis in original). As Hamilton's statement suggests, the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate *834 electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints. Our cases interpreting state power under the Elections Clause reflect the same understanding. The Elections Clause gives States authority "to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved." **1870 Smiley v. Holm, 285 U.S., at 366, 52 S.Ct., at 399. However, "[t]he power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights." Tashjian v. Republican Party of Conn., 479 U.S. 208, 217, 107 S.Ct. 544, 550, 93 L.Ed.2d 514 (1986). States are thus entitled to adopt "generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself." Anderson v. Celebrezze, 460 U.S. 780, 788, n. 9, 103 S.Ct. 1564, 1570, n. 9, 75 L.Ed.2d 547 (1983). For example, in Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), the case on which petitioners place principal reliance, we upheld the validity of certain provisions of the California Elections Code. In so doing, we emphasized the States' interest in having orderly, fair, and honest elections "rather than chaos." Id., at 730, 94 S.Ct., at 1279. We also recognized the "States' strong interest in maintaining the integrity of the political process by preventing interparty raiding," id., at 731, 94 S.Ct., at 1279, and explained that the specific requirements applicable to independents were "expressive of a general state policy aimed at maintaining the integrity of the various routes to the ballot," id, at 733, 94 S.Ct., at 1281. In other cases, we have approved the States' interests in Page 34 avoiding "voter confusion, ballot overcrowding, or the presence of frivolous candidacies," Munro v. Socialist Workers Party, 479 U.S. 189, 194-195, 107 S.Ct. 533, 537, 93 L.Ed.2d 499 (1986), in " seeking to assure that elections are operated equitably and efficiently," Burdick v. Takushi, 504 U.S., at 433, 112 S.Ct., at 2063, and in "guard[ing] against irregularity and error in the tabulation of votes," Roudebush v. Hartke, 405 U.S. 15, 25, 92 S.Ct. 804, 810, 31 L.Ed.2d 1 (1972). In short, we have approved of state regulations designed to ensure that *835 elections are " 'fair and honest and ... [that] some sort of order, rather than chaos, ... accompan[ies] the democratic processes.' " Burdick v. Takushi, 504 U.S., at 433, 112 S.Ct., at 2063, quoting Storer, 415 U.S., at 730, 94 S.Ct., at 1279. The provisions at issue in Storer and our other Elections Clause cases were thus constitutional because they regulated election procedures and did not even arguably impose any . substantive qualification rendering a class of potential candidates ineligible for ballot position. They served the state interest in protecting the integrity and regularity of the election process, an interest independent of any attempt to evade the constitutional prohibition against the imposition of additional qualifications for service in Congress. And they did not involve measures that exclude candidates from the ballot without reference to the candidates' support in the electoral process. Our cases upholding state regulations of election procedures thus provide little support for the contention that a state -imposed ballot access restriction is constitutional when it is undertaken for the twin goals of disadvantaging a particular class of candidates and evading the dictates of the Qualifications Clauses!N48 FN48. Nor does Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982), support petitioners. In Clements, the Court rejected First and Fourteenth Amendment challenges to Texas' so-called "resign -to -run" provision. That provision treated an elected state official's declaration of candidacy for another 2007 ThomsonlWest. No Claim to Orig. U.S. Govt. Works. 129 http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 36 of 84 115 S.Ct, 1842 Page 35 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ck 1842) elected office as an automatic resignation from the office then held. We noted that the regulation was a permissible attempt to regulate state officeholders. See id., at 972, 102 S.Ct., at 2848 ("Appellees are elected state officeholders who contest restrictions on partisan political activity") (emphasis deleted); id., at 974, n. 1, 102 S.Ct., at 2849, n. I (STEVENS, J., concurring in part and concurring in judgment) ("The fact that appellees hold state office is sufficient to justify a restriction on their ability to run for other office that is not imposed on the public generally"). As the Ninth Circuit recognized in upholding a similar resign -to -run statute from Arizona: "The burden on candidacy ... is indirect and attributable to a desire to regulate state officeholders and not to impose additional qualifications to serving in Congress." Joyner v. Mofford, 706 F.2d 1523, 1528 (1983); see also Signorelli v. Evans, 637 F.2d 853, 859 (CA2 1980) ("New York's purpose is to regulate the judicial office that [the candidate] holds, not the Congressional office he seeks"). Moreover, as now -Chief Judge Newman observed while upholding similar restrictions imposed by New York, such provisions "plac[e] no obstacle between [a candidate] and the ballot or his nomination or his election. He is free to run and the people are free to choose him." Id., at 858. *836 We do not understand the dissent to contest our primary thesis, namely, that if **1871 the qualifications for Congress are fixed in the Constitution, then a state -passed measure with the avowed purpose of imposing indirectly such an additional qualification violates the Constitution. The dissent, instead, raises two objections, challenging the assertion that the Arkansas amendment has the likely effect of creating a qualification, post, at 1909-1910, and suggesting that the true intent of Amendment 73 was not to evade the Qualifications Clauses but rather to simply "level the playing field," post, at 1911. Neither of these objections has merit. [16] As to the first, it is simply irrelevant to our holding today. As we note above in n. 45, our prior cases strongly suggest that write-in candidates will have only a slim chance of success, and the Arkansas plurality agreed. However, we expressly do not rest on this Court's prior observations regarding write-in candidates. Instead, we hold that 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. Thus, the dissent's discussion of the evidence concerning the possibility that a popular incumbent will win a write-in election is simply beside the point. As to the second argument, we find wholly unpersuasive the dissent's suggestion that Amendment 73 was designed merely to "level the playing field." As we have noted, supra, at 1867-1868, it is obvious that the sole purpose of Amendment 73 was to limit the terms of elected officials, both state and federal, and that Amendment 73, therefore, may not stand. *837 V The merits of term limits, or "rotation," have been the subject of debate since the formation of our Constitution, when the Framers unanimously rejected a proposal to add such limits to the Constitution. The cogent arguments on both sides of the question that were articulated during the process of ratification largely retain their force today. Over half the States have adopted measures that impose such limits on some offices either directly or indirectly, and the Nation as a whole, notably by constitutional amendment, has imposed a limit on the number of terms that the President may serve FN49 Term limits, . like any other qualification for office, unquestionably restrict the ability of voters to vote for whom they wish. On the other hand, such limits may provide for the infusion of fresh ideas and new perspectives, and may decrease the likelihood that representatives will lose touch with their constituents. It is not our province to resolve this longstanding debate. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 130 http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l&prft=HTN LE&n=18&L.. 3/14/2007 Page 37 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) FN49. See U.S. Const., Amdt. 22 (1951) (limiting Presidents to two 4-year terms). We are, however, firmly convinced that allowing the several States to adopt term limits for congressional service would effect a fundamental change in the constitutional framework. Any such change must come not by legislation adopted either by Congress or by an individual State, but rather -as have other important changes in the electoral process FN50-through the amendment procedures set forth in Article V. The Framers decided that the qualifications for service in the Congress of the United States be fixed in the Constitution and be uniform throughout the Nation. That decision reflects the Framers' understanding that Members of Congress are chosen by separate constituencies, but that *838 they become, when elected, servants of the people of the United States. They are not merely delegates appointed by separate, sovereign States; they occupy offices that are integral and essential components of a single National Government. In the absence of a properly passed constitutional amendment, allowing individual States to craft their own qualifications for Congress would thus erode the structure envisioned by the Framers, a structure that was designed, in the words of the Preamble to our Constitution, to form a " more perfect Union." FN50. See, e.g., Arndt. 17 (1913) (direct elections of Senators); Arndt. 19 (1920) (extending suffrage to women); Amdt. 22 (1951) (Presidential term limits); Arndt. 24 (1964) (prohibition against poll taxes); Amdt. 26 (1971) (lowering age of voter eligibility to 18). The judgment is affirmed. It is so ordered. **1872 Justice KENNEDY, concurring. I join the opinion of the Court. The majority and dissenting opinions demonstrate the intricacy of the question whether or not the Qualifications Clauses are exclusive. In my view, however, it is well settled that the whole people of Page 36 the United States asserted their political identity and unity of purpose when they created the federal system. The dissent's course of reasoning suggesting otherwise might be construed to disparage the republican character of the National Government, and it seems appropriate to add these few remarks to explain why that course of argumentation runs counter to fundamental principles of federalism. Federalism was our Nation's own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it. It is appropriate to recall these origins, which instruct us as to the *839 nature of the two different governments created and confirmed by the Constitution. A distinctive character of the National Government, the mark of its legitimacy, is that it owes its existence to the act of the whole people who created it. It must be remembered that the National Government, too, is republican in essence and in theory. John Jay insisted on this point early in The Federalist Papers, in his comments on the government that preceded the one formed by the Constitution. "To all general purposes we have uniformly been one people; each individual citizen everywhere enjoying the same national rights, privileges, and protection.... "A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. They formed it almost as soon as they had a political existence...:' The Federalist No. 2, pp. 38-39 (C. Rossiter ed. 1961) (hereinafter The Federalist). Once the National Government was formed under our Constitution, the same republican principles continued to guide its operation and practice. As 0 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 31L http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti= l &prft=HTMLE&n=18&f... 3/ 14/2007 Page 38 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) James Madison explained, the House of Representatives "derive[s) its powers from the people of America," and "the operation of the government on the people in their individual capacities" makes it "a national government," not merely a federal one. Id., No. 39, at 244, 245 (emphasis deleted). The Court confirmed this principle in McCulloch v. Maryland, 4 Wheat. 316, 404405, 4 L.Ed. 579 (1819), when it said: "The government of the Union, then, ... is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit." The same theory led us to observe as follows in Ex pane Yarbrough, 110 U.S. 651, 666, 4 S.Ct. 152, 159, 28 L.Ed. 274 (1884): "In a republican government, like ours, ... political *840 power is reposed in representatives of the entire body of the people." In one sense it is true that "the people of each State retained their separate political identities," post, at 1877, for the Constitution takes care both to preserve the States and to make use of their identities and structures at various points in organizing the federal union. It does not at all follow from this that the sole political identity of an American is with the State of his or her residence. It denies the dual character of the Federal Government which is its very foundation to assert that the people of the United States do not have a political identity as well, one independent of, though consistent with, their identity as citizens of the State of their residence. Cf. post, at 1876-1877, It must be recognized that " '[f]or all the great purposes for which the Federal government was formed, we are one people, with one common country.' " Shapiro v. Thompson, 394 U.S. 618, 630, 89 S.Ct. 1322, 1329, 22 L.Ed.2d 600 (1969) (quoting Passenger Cases, 7 How. 283, 492, 12 L.Ed. 702 (1849) (Taney, C.J., dissenting); see **1873Crandall v. Nevada, 6 Wall. 35, 43, 18 L.Ed. 745 (1868) ("The people of these United States constitute one nation" and "have a government in which all of them are deeply interested'7. It might be objected that because the States ratified the Constitution, the people can delegate power Page 37 only through the States or by acting in their capacities as citizens of particular States. See post, at 1875-1876. But in McCulloch v. Maryland, the Court set forth its authoritative rejection of this idea: "The Convention which framed the constitution was indeed elected by the State legislatures. But the instrument ... was submitted to the people.... It is true, they assembled in their several States -and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But *841 the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments." 4 Wheat., at 403. The political identity of the entire people of the Union is reinforced by the proposition, which I take to be beyond dispute, that, though limited as to its objects, the National Government is, and must be, controlled by the people without collateral interference by the States. McCulloch affirmed this proposition as well, when the Court rejected the suggestion that States could interfere with federal powers. "This was not intended by the American people. They did not design to make their government dependent on the States." Id., at 432. The States have no power, reserved or otherwise, over the exercise of federal authority within its proper sphere. See id., at 430 (where there is an attempt at "usurpation of a power which the people of a single State cannot give," there can be no question whether the power "has been surrendered" by the people of a single State because "[t]he right never existed"). That the States may not invade the sphere of federal sovereignty is as incontestable, in my view, as the corollary proposition that the Federal Government must be held within the boundaries of its own power when it intrudes upon matters reserved to the States. See United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Of course, because the Framers recognized that state power and identity were essential parts of the m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1-32 http://web2.westlaw.conVprintlprintstream.aspx?sv=Split&rlti=l&pift--HTNUE&n=18&f... 3/14/2007 Page 39 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.CL 1842) federal balance, see The Federalist No. 39, the Constitution is solicitous of the prerogatives of the States, even in an otherwise sovereign federal province. The Constitution uses state boundaries to fix the size of congressional delegations, Art. I, § 2, cl. 3, ensures that each State shall have at least one representative, ibid., grants States certain powers over the times, places, and manner of federal elections (subject to congressional revision), Art. I, § 4, cl. 1, requires that when the President is elected by the House of Representatives, the delegationsfrom *842 each State have one vote, Art. 11, § 1, cl. 3, and Arndt. 12, and allows States to appoint electors for the President, Art. 11, § 1, cl. 2. Nothing in the Constitution or The Federalist Papers, however, supports the idea of state interference with the most basic relation between the National Government and its citizens, the selection of legislative representatives. Indeed, even though the Constitution uses the qualifications for voters of the most numerous branch of the States' own Iegislatures to set the qualifications of federal electors, Art. I, § 2, cl. 1, when these electors vote, we have recognized that they act in a federal capacity and exercise a federal right. Addressing this principle in Ex parse Yarbrough the Court stated as follows: " Mhe right to vote for a member of Congress" is an "office ... created by that Constitution, and by that alone.... It is not true, therefore, that electors for members of Congress owe their right to vote to the State law in any sense which makes the exercise of the right to depend exclusively on the law of the State." 110 U.S., at 663-664, 4 S.Ct., at 158. We made the same point in United States v. Classic, 313 U.S. 299, 315, 61 S.Ct. 1031, 1037-1038, 85 L.Ed. 1368 (1941), when we said: " Mhe right of qualified voters within a state to cast their ballots and have them counted at Congressional elections ... is a right secured by the Constitution" and "is **1874 secured against the action of individuals as well as of states." The federal character of congressional elections flows from the political reality that our National Government is republican in form and that national citizenship has privileges and immunities protected from state abridgment by the force of the Constitution itself. Even before the passage of the Page 38 Fourteenth Amendment, the latter proposition was given expression in Crandall v. Nevada where the Court recognized the right of the Federal Government to call "any or all of its citizens to aid in its service, as members of the Congress, of the courts, of the executive departments, and to fill all its other offices," and further recognized that "this right cannot be made to depend upon the pleasure of a State over whose *843 territory they must pass to reach the point where these services must be rendered." 6 Wall., at 43. And without reference to the Privileges and Immunities Clause, the rights of national citizenship were upheld again in United States v. Cruikshank 92 U.S. 542, 552, 23 L.Ed. 588 (1876), where the Court said: `"The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances." Cf. Hague v. Committee for Industrial Organization, 307 U.S. 496, 513, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939) (opinion of Roberts, J., joined by Black, J., and joined in relevant part by Hughes, C.J.) ("Citizenship of the United States would be little better than a name if it did not carry with it the right to discuss national legislation and the benefits, advantages, and opportunities to accrue to citizens therefrom"). In the Slaughter -House Cases, 16 Wall. 36, 78-80, 21 L.Ed. 394 (1873), the Court was careful to hold that federal citizenship in and of itself suffices for the assertion of rights under the Constitution, rights that stem from sources other than the States. Though the Slaughter -House Cases interpreted the Privileges and Immunities Clause of the Fourteenth Amendment, its view of the origins of federal citizenship was not confined to that source. Referring to these rights of national dimension and origin the Court observed: "But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which owe © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 133 http:Nweb2.westlaw.con/printlprintstream.aspx?sv=Split&rlti=l&prft=I-ffMLE&n=18&f... 3/14/2007 Page 40 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) their existence to the Federal government, its National character, its Constitution, or its laws." Id, at 79. Later cases only reinforced the idea that there are such incidents of national citizenship. See *844Ex pane Yarbrough, supra; Terral v. Burke Constr. Co., 257 U.S. 529, 42 S.Ct. 188, 66 L.Ed. 352 (1922); United States v. Classic, supra; United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Federal privileges and immunities may seem limited in their formulation by comparison with the expansive definition given to the privileges and immunities attributed to state citizenship, see Slaughter -House Cases, supra, at 78; Hague, supra, at 520, 59 S.Ct., at 966 (opinion of Stone, J.), but that federal rights flow to the people of the United States by virtue of national citizenship is beyond dispute. Not the least of the incongruities in the position advanced by Arkansas is the proposition, necessary to its case, that it can burden the rights of resident voters in federal elections by reason of the manner in which they earlier had exercised it. If the majority of the voters had been successful in selecting a candidate, they would be penalized from exercising that same right in the future. Quite apart from any First Amendment concerns, see Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968); Anderson v. Celebrezze, 460 U.S. 780, 786-788, 103 S.Ct. 1564, 1568-1569, 75 L.Ed.2d 547 (1983), neither the law nor federal theory allows a State to burden the exercise of federal rights in this manner. See Terral v. Burke Constr. Co., supra, at 532, 42 S.Ct., at 188-89; **1875Shapiro v. Thompson, supra, at 629-631, 89 S.Ct., at 1329. Indeed, as one of the "right[s] of the citizen[s] of this great country, protected by implied guarantees of its Constitution," the Court identified the right " 'to come to the seat of government ... to share its offices, to engage in administering its functions.' " Slaughter -House Cases, supra, at 79 (quoting Crandall v. Nevada, 6 Wall., at 44). This observation serves to illustrate the extent of the State's attempted interference with the federal right to vote (and the derivative right to serve if elected by majority vote) in a congressional election, rights that do not derive from the state Page 39 power in the first instance but that belong to the voter in his or her capacity as a citizen of the United States. It is maintained by our dissenting colleagues that the State of Arkansas seeks nothing more than to grant its people*845 surer control over the National Government, a control, it is said, that will be enhanced by the law at issue here. The arguments for term limitations (or ballot restrictions having the same effect) are not lacking in force; but the issue, as all of us must acknowledge, is not the efficacy of those measures but whether they have a legitimate source, given their origin in the enactments of a single State. There can be no doubt, if we are to respect the republican origins of the Nation and preserve its federal character, that there exists a federal right of citizenship, a relationship between the people of the Nation and their National Government, with which the States may not interfere. Because the Arkansas enactment intrudes upon this federal domain, it exceeds the boundaries of the Constitution. Justice THOMAS, with whom THE CHIEF JUSTICE, Justice O'CONNOR, and Justice SCALIA join, dissenting. It is ironic that the Court bases today's decision on the right of the people to "choose whom they please to govern them." See ante, at 1845, 1850, 1851, 1862. Under our Constitution, there is only one State whose people have the right to "choose whom they please" to represent Arkansas in Congress. The Court holds, however, that neither the elected legislature of that State nor the people themselves (acting by ballot initiative) may prescribe any qualifications for those representatives. The majority therefore defends the right of the people of Arkansas to "choose whom they please to govern them" by invalidating a provision that won nearly 60% of the votes cast in a direct election and that carried every congressional district in the State. I dissent. Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 134 http://web2.westlaw.conVprintlprintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 41 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct 1842) the States or the people. *846 I Because the majority fundamentally misunderstands the notion of "reserved" powers, I start with some first principles. Contrary to the majority's suggestion, 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 Congress, or to authorize their elected state legislators to do so. A Our system of government rests on one overriding principle: All power stems from the consent of the people. To phrase the principle in this way, however, is to be imprecise about something important to the notion of "reserved" powers. The ultimate source of the Constitution's authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole. The ratification procedure erected by Article VII makes this point clear. The Constitution took effect once it had been ratified by the people gathered in convention in nine different States. But the Constitution went into effect only "between the States so ratifying the same;' Art. VII; it did not bind the people of North Carolina until they had accepted it. In Madison's words, the popular consent upon which the Constitution's authority rests was "given by the people, not as individuals composing one entire nation, but **1876 as composing the distinct and independent States to which they respectively belong." The Federalist No. 39, p. 243 (C. Rossiter ed. 1961) (hereinafter The Federalist). Accord, 3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 94 (J. Elliot 2d ed. 1876) (hereinafter Elliot) (remarks of James Madison at the Virginia Convention).F'Nt FNI. The ringing initial words of the Page 40 Constitution -"We the People of the United States" -convey something of the same idea. (In the Constitution, after all, "the United States" is consistently a plural noun. See Art. I, § 9, cl. 8; Art. II, § 1, cl. 7; Art. III, § 2, cl. 1; Art. III, § 3, cl. 1; cf. Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1455 (1987) (noting this fact, though reaching other conclusions).) The Preamble that the Philadelphia Convention approved before sending the Constitution to the Committee of Style is even clearer. It began: "We the people of the States of New -Hampshire, Massachusetts, Rhode -Island and Providence Plantations, Connecticut, New -York, New -Jersey, Pennsylvania, Delaware, Maryland, Virginia, North -Carolina, South -Carolina, and Georgia..." 2 Records of the Federal Convention of 1787, p. 565 (M. Farrand ed. 1911) (hereinafter Farrand). Scholars have suggested that the Committee of Style adopted the current language because it was not clear that all the States would actually ratify the Constitution. M. Farrand, The Framing of the Constitution of the United States 190-191 (1913). In this instance, at least, I agree with the majority that the Committee's edits did not work a substantive change in the Constitution. Cf. ante, at 1849, n. 8. *847 When they adopted the Federal Constitution, of course, the people of each State surrendered some of their authority to the United States (and hence to entities accountable to the people of other States as well as to themselves). They affirmatively deprived their States of certain powers, see, e.g., Art. I, § 10, and they affirmatively conferred certain powers upon the Federal Government, see, e.g., Art. I, § 8. Because the people of the several States are the only true source of power, however, the Federal Government enjoys no authority beyond what the Constitution confers: The Federal Government's powers are limited and enumerated. In the words of Justice Black: "The United States is entirely a creature of the Constitution. Its power and authority have no other m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. I.35 http://web2.westlaw.com/print/printstream.aspx?sv=Split&rlti=l&prft -ETNUX&n=18&f... 3/ 14/2007 Page 42 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct_ 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) source." Reid v. Coven, 354 U.S. 1, 5-6, 77 S.Ct. 1222, 1225, 1 L.Ed.2d 1148 (1957) (plurality opinion) (footnote omitted). In each State, the remainder of the people's powers-" [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States," Arndt. 10-are either delegated to the state government or retained by the people. The Federal Constitution does not specify which of these two possibilities obtains; it is up to the various state constitutions to declare which powers the people of each State have delegated to their state government. As far as *848 the Federal Constitution is concerned, then, the States can exercise all powers that the Constitution does not withhold from them. The Federal Government and the States thus face different default rules: Where the Constitution is silent about the exercise of a particular power -that is, where the Constitution does not speak either expressly or by necessary implication -the Federal Government lacks that power and the States enjoy it. These basic principles are enshrined in the Tenth Amendment, which declares that all powers neither delegated to the Federal Government nor prohibited to the States "are reserved to the States respectively, or to the people." With this careful last phrase, the Amendment avoids taking any position on the division of power between the state governments and the people of the States: It is up to the people of each State to determine which "reserved" powers their state government may exercise. But the Amendment does make clear that powers reside at the state level except where the Constitution removes them from that Ievel. All powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State. To be sure, when the Tenth Amendment uses the phrase "the people," it does not specify whether it is referring to the people of each State or the people of the Nation as a whole. But the latter interpretation would make the Amendment pointless: There would have been no reason to provide that where the Constitution is silent about whether a particular power resides at the state level, it might or might not do so. In addition,**1877 it would make no Page 41 sense to speak of powers as being reserved to the undifferentiated people of the Nation as a whole, because the Constitution does not contemplate that those people will either exercise power or delegate it. The Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation. Thus, the amendment provision of Article *849 V calls for amendments to be ratified not by a convention of the national people, but by conventions of the people in each State or by the state legislatures elected by those people. Likewise, the Constitution calls for Members of Congress to be chosen State by State, rather than in nationwide elections. Even the selection of the President -surely the most national of national figures -is accomplished by an electoral college made up of delegates chosen by the various States, and candidates can lose a Presidential election despite winning a majority of the votes cast in the Nation as a whole. See also Art. II, § 1, cl. 3 (providing that when no candidate secures a majority of electoral votes, the election of the President is thrown into the House of Representatives, where "the Votes shall be taken by States, the Representatives from each State having one Vote"); Arndt. 12 (same). In short, the notion of popular sovereignty that undergirds the Constitution does not erase state boundaries, but rather tracks them. The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agrccd to be bound by constitutional amendments that they themselves refused to ratify. See Art. V (providing that proposed amendments shall take effect upon ratification by three-quarters of the States). At the same time, however, the people of each State retained their separate political identities. As Chief Justice Marshall put it, "[n]o political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass." McCulloch v. Maryland, 4 Wheat. 316, 403, 4 L.Ed. 579 (1819) FNa FN2. The concurring opinion appears to © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 136 http://web2.westlaw.com/print/printstream.aspx?sv=Split&rlti=l&prf t=1-ITMLE, &n=18&f... 3/14/2007 Page 43 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) draw precisely the opposite conclusion from the passage in McCulloch that contains this sentence. See ante, at 1873. But while the concurring opinion seizes on Marshall's references to "the people," Marshall was merely using that phrase in contradistinction to "the State governments. " Counsel for Maryland had noted that " the constitution was formed and adopted, not by the people of the United States at large, but by the people of the respective States. To suppose that the mere proposition of this fundamental law threw the American people into one aggregate mass, would be to assume what the instrument itself does not profess to establish" McCulloch, 4 Wheat., at 363) (argument of counsel). Marshall's opinion accepted this premise, even borrowing some of counsel's language. See id, at 403. What Marshall rejected was counsel's conclusion that the Constitution therefore was merely "a compact between the States." See id., at 363 (argument of counsel). As Marshall explained, the acts of "the people themselves" in the various ratifying conventions should not be confused with "the measures of the State governments" Id, at 403; see also id, at 404 (noting that no state government could control whether the people of that State decided to adopt the Constitution). *850 Any ambiguity in the Tenth Amendment's use of the phrase "the people" is cleared up by the body of the Constitution itself. Article I begins by providing that the Congress of the United States enjoys "[a]ll legislative Powers herein granted," § 1, and goes on to give a careful enumeration of Congress' powers, § 8. It then concludes by enumerating certain powers that are prohibited to the States. The import of this structure is the same as the import of the Tenth Amendment: If we are to invalidate Arkansas' Amendment 73, we must point to something in the Federal Constitution that deprives the people of Arkansas of the power to enact such measures. Page 42 0 The majority disagrees that it bears this burden. But its arguments are unpersuasive. The majority begins by announcing an enormous and untenable limitation on the principle expressed by the Tenth Amendment. According to the majority, the States possess only those powers that the Constitution**1878 affirmatively grants to them or that they enjoyed before the Constitution was adopted; the Tenth Amendment "could only ' reserve' that *851 which existed before." Ante, at 1854. From the fact that the States had not previously enjoyed any powers over the particular institutions of the Federal Government established by the Constitution,FN3 the majority derives a rule precisely opposite to the one that the Amendment actually prescribes: " '[Tjhe states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them.' " Ibid. (quoting 1 1. Story, Commentaries on the Constitution of the United States § 627 (3d ed. 1858)). FN3. At the time of the framing, of course, a Federal Congress had been operating under the Articles of Confederation for some 10 years. The States unquestionably had enjoyed the power to establish qualifications for their delegates to this body, above and beyond the qualifications created by the Articles themselves. See Brief for Respondents Bobbie E. Hill et al. 39, n. 79 (conceding this point); see also, e.g., Md. Const. of 1776, Art. XXVII (prescribing such qualifications), in 3 Federal and State Constitutions 1695-1696 (F. Thorpe ed. 1909) (hereinafter Thorpe); N.H. Const. of 1784, Pt. II (same), in 4 Thorpe 2467. It is surprising, then, that the concurring opinion seeks to buttress the majority's case by stressing the continuing applicability of "the same © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1,7 http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l &prft=RTNILE&n=18&E.. 3/14/2007 Page 44 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) republican principles" that had prevailed under the Articles. See ante, at 1872. The majority's essential logic is that the state governments could not "reserve" any powers that they did not control at the time the Constitution was drafted. But it was not the state governments that were doing the reserving. The Constitution derives its authority instead from the consent of the people of the States. Given the fundamental principle that all governmental powers stem from the people of the States, it would simply be incoherent to assert that the people of the States could not reserve any powers that they had not previously controlled. The Tenth Amendment's use of the word "reserved" does not help the majority's position. If someone says that the power to use a particular facility is reserved to some group, he is not saying anything about whether that group has previously used the facility. He is merely saying that the people*852 who control the facility have designated that group as the entity with authority to use it. The Tenth Amendment is similar: The people of the States, from whom all governmental powers stem, have specified that all powers not prohibited to the States by the Federal Constitution are reserved "to the States respectively, or to the people." The majority is therefore quite wrong to conclude that the people of the States cannot authorize their state governments to exercise any powers that were unknown to the States when the Federal Constitution was drafted. Indeed, the majority's position frustrates the apparent purpose of the Amendment's final phrase. The Amendment does not pre-empt any limitations on state power found in the state constitutions, as it might have done if it simply had said that the powers not delegated to the Federal Government are reserved to the States. But the Amendment also does not prevent the people of the States from amending their state constitutions to remove limitations that were in effect when the Federal Constitution and the Bill of Rights were ratified. In an effort to defend its position, the majority points to language in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 549, Page 43 105 S.Ct. 1005, 1016-17, 83 L.Ed.2d 1016 (1985), which it takes to indicate that the Tenth Amendment covers only "the original powers of [state] sovereignty." Ante, at 1854. But Garcia dealt with an entirely different issue: the extent to which principles of state sovereignty implicit in our federal system curtail Congress' authority to exercise its enumerated powers. When we are asked to decide whether a congressional statute that appears to have been authorized by Article I is nonetheless unconstitutional because it invades a protected sphere of state sovereignty, it may well be appropriate for us to inquire into what we have called the "traditional aspects of state sovereignty." See National League of Cities v. Usery, 426 U.S. 833, 841, 849, 96 S.Ct. 2465, 2469, 2473, 49 L.Ed.2d 245 (1976); see also **1879New York v. United States, 505 U.S. 144, 156-157, 112 S.Ct. 2408, 2417-2418, 120 L.Ed.2d 120 (1992). The question *853 raised by the present case, however, is not whether any principle of state sovereignty implicit in the Tenth Amendment bars congressional action that Article I appears to authorize, but rather whether Article I bars state action that it does not appear to forbid. The principle necessary to answer this question is express on the Tenth Amendment's face: Unless the Federal Constitution affirmatively prohibits an action by the States or the people, it raises no bar to such action. The majority also seeks support for its view of the Tenth Amendment in McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (1819). See ante, at 1854. But this effort is misplaced. McCulloch did make clear that a power need not be "expressly" delegated to the United States or prohibited to the States in order to fall outside the Tenth Amendment's reservation; delegations and prohibitions can also arise by necessary implication. M4 True to the text of the Tenth Amendment, however, McCulloch indicated that all powers as to which the Constitution does not speak (whether expressly or by necessary implication) are "reserved " to the state level. Thus, in its only discussion of the Tenth Amendment, McCulloch observed that the Amendment "leav[es) the question, whether the particular power which may become the subject of contest has been delegated to the one government, © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1.38 http://web2.westlaw.comlptintlprintstream.aspx?sv=Split&rlti=l, &prft=HTMLF,&n=18&f... 3/14/2007 Page 45 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) or prohibited to the other, to depend on a fair construction of the whole [Constitution]." 4 Wheat., at 406. McCulloch did not qualify this observation by indicating that the question also turned on whether the States had enjoyed the power before the framing. To the contrary, McCulloch seemed to assume that the people had "conferred on the general government the power contained in the constitution, and on the States the whole residuum of power." Id., at 410. FN4. Despite the majority's odd suggestion to the contrary, see ante, at 1851-1852, n. 12, 1 fully agree with this sensible position. See supra, at 1876. The structure of McCulloch 's analysis also refutes the majority's position. The question before the Court was *854 whether the State of Maryland could tax the Bank of the United States, which Congress had created in an effort to accomplish objects entrusted to it by the Constitution. Chief Justice Marshall's opinion began by upholding the federal statute incorporating the bank. Id., at 400-425. It then held that the Constitution affirmatively prohibited Maryland's tax on the bank created by this statute. Id., at 425-437. The Court relied principally on concepts that it deemed inherent in the Supremacy Clause of Article VI, which declares that "[tlhis Constitution, and the Laws of the United States which shall be made in Pursuance thereof, ... shall be the supreme Law of the Land...:' In the Courfs view, when a power has been "delegated to the United States by the Constitution," Arndt. 10, the Supremacy Clause forbids a State to "retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry [that power] into execution." McCulloch, 4 Wheat., at 436. Thus, the Court concluded that the very nature of state taxation on the bank's operations was "incompatible with, and repugnant to," the federal statute creating the bank. See id, at 425. For the past 175 years, McCulloch has been understood to rest on the proposition that the Constitution affirmatively barred Maryland from imposing its tax on the bank's operations. See, e.g., Page 44 Osborn v. Bank of United States, 9 Wheat. 738, 859-868, 6 L.Ed. 204 (1824) (reaffirming McCulloch 's conclusion that by operation of the Supremacy Clause, the federal statute incorporating the bank impliedly pre-empted state laws attempting to tax the bank's operations); Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981) (citing McCulloch for the proposition that the Supremacy Clause deprives the States of the power to pass laws that conflict with federal statutes); see also North Dakota v. United States, 495 U.S. 423, 434, 110 S.Ct. 1986, 1994, 109 L.Ed.2d 420 (1990) (plurality opinion) (citing McCulloch for the proposition that state laws may violate the Supremacy Clause when they " regulate the Government **1880 directly or discriminate against *855 it").FO5 For the majority, however, McCulloch apparently turned on the fact that before the Constitution was adopted, the States had possessed no power to tax the instrumentalities of the governmental institutions that the Constitution created. This understanding of McCulloch makes most of Chief Justice Marshall's opinion irrelevant; according to the majority, there was no need to inquire into whether federal law deprived Maryland of the power in question, because the power could not fall into the category of "reserved" powers anyway.FN6 FNS. Though cited by the majority, see ante, at 1854, Crandall v. Nevada, 6 Wall. 35, 18 L.Ed. 745 (1868), did not deviate from this accepted view of McCulloch. See Crandall, supra, at 48 (observing that McCulloch and a number of other cases " distinctly placed the invalidity of the State taxes on the ground that they interfered with an authority of the Federal government FN6. To support its decision to attribute such surplusage to McCulloch, the majority quotes Marshall's observation that his opinion " `does not deprive the States of any resources which they originally possessed,' " because the power to tax federal instrumentalities was not encompassed by the States' " 'original Q 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 139 http:llweb2.westlaw.comlprintlprintstream. aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/ 14/2007 Page 46 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) right to tax.' " Ante, at 1854 (quoting McCulloch, 4 Wheat., at 436, 430). In part, Marshall was simply refuting counsel's argument that it would constitute an "overwhelming invasion of State sovereignty" for Congress to establish a bank that operated within a State but that nonetheless was exempt from state taxes. See Id., at 337-339 (argument of counsel) (stressing that "the right to raise revenue" is "the highest attribute of sovereignty" and indeed amounts to "the right to exist"). While Marshall acknowledged that "this original right of taxation" was an "essential " attribute of state sovereignty that Congress could not constitutionally control or invade, he focused more precisely than counsel on "the nature and extent of this original right," id., at 428, and concluded that it did not include the right "to tax the means employed by the government of the Union, for the execution of its powers." Id., at 430. In this respect, then, the Court was referring to the States' "original" powers in much the same context as Garcia v. San Antonio Metropolittan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985): The Court was examining whether Congress' exercise of the "privilege of exempting its own measures from State taxation," McCulloch, supra, at 434, had invaded a protected sphere of state sovereignty. Marshall did go on to argue that the power to tax the operations of the Bank of the United States simply was not susceptible to control by the people of a single State. See 4 Wheat., at 430. But that theory is perfectly consistent with my position. Marshall reasoned that the people of a single State may not tax the instrumentalities employed by the people of all the States through the National Government, because such taxation would effectively subject the people of the several States to the taxing power of a single State. See id, at 428. This sort of argument proves that the people of a single State may not prescribe qualifications for Page 45 the President of the United States; the selection of the President, like the operation of the Bank of the United States, is not up to the people of any single State. See infra, at 1882. It does not follow, however, that the people of a single State may not prescribe qualifications for their own representatives in Congress. *856 Despite the majority's citation of Garcia and McCulloch, the only true support for its view of the Tenth Amendment comes from Joseph Story's 1833 treatise on constitutional law. See 2 J. Story, Commentaries on the Constitution of the United States §§ 623-628. Justice Story was a brilliant and accomplished man, and one cannot casually dismiss his views. On the other hand, he was not a member of the Founding generation, and his Commentaries on the Constitution were written a half century after the framing. Rather than representing the original understanding of the Constitution, they represent only his own understanding. In a range of cases concerning the federallstate relation, moreover, this Court has deemed positions taken in Story's commentaries to be more nationalist than the Constitution warrants. Compare, e.g., id, §§ 1063-1069 (arguing that the Commerce Clause deprives the States of the power to regulate any commerce within Congress' reach), with Cooley v. Board of Wardens of Port o} Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299, 13 L.Ed. 996 (1852) (holding that Congress' Commerce Clause powers are not exclusive). See also 1 Life and Letters of Joseph Story 296 (W. Story ed. 1851) (extract of manuscript written by Story) ("I hold it to be a maxim, which should never be lost sight of by a great statesman, that the Government of the United States is *857 intrinsically too weak, and the powers of the State Governments too strong'. In this case too, Story's position that the only powers reserved to the States are those that the States enjoyed before the framing conflicts with both the plain language of the Tenth Amendment and the underlying theory of the Constitution. **1881 2 m 2007 ThomsonfWest. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstreatn.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/ 14/2007 Page 47 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779, 115 S. Ct.1842) The majority also sketches out what may be an alternative (and narrower) argument. Again citing Story, the majority suggests that it would be inconsistent with the notion of "national sovereignty " for the States or the people of the States to have any reserved powers over the selection of Members of Congress. See ante, at 1855, 1855-1856. The majority apparently reaches this conclusion in two steps_ First, it asserts that because Congress as a whole is an institution of the National Government, the individual Members of Congress "owe primary allegiance not to the people of a State, but to the people of the Nation." See ante, at 1855. Second, it concludes that because each Member of Congress has a nationwide constituency once he takes office, it would be inconsistent with the Framers' scheme to let a single State prescribe qualifications for him. See ante, at 1955, 1871. Political scientists can debate about who commands the "primary allegiance" of Members of Congress once they reach Washington. From the framing to the present, however, the selection of the Representatives and Senators from each State has been left entirely to the people of that State or to their state legislature. See Art. 1, § 2, cl. 1 (providing that Members of the House of Representatives are chosen "by the Peoplo of the several States"); Art. L § 3, cl. 1 (originally providing that the Senators from each State are " chosen by the Legislature thereof'); Amdt. 17 (amending § 3 to provide that the Senators from each State are "elected by the people thereof). The very name "congress" suggests a *858 coming together of representatives from distinct entities.t'747 In keeping with the complexity of our federal system, once the representatives chosen by the people of each State assemble in Congress, they form a national body and are beyond the control of the individual States until the next election. But the selection of representatives in Congress is indisputably an act of the people of each State, not some abstract people of the Nation as a whole. Page 46 different nations: as, the congress of Cambray"); T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) ("an appointed meeting for settlement of affairs between different nations; the assembly which governs the United States of America"). The concurring opinion suggests that this cannot be so, because it is the Federal Constitution that guarantees the right of the people of each State (so long as they are qualified electors under state- law) to take part in choosing the Members of Congress from that State. See ante, at 1873-1874. But the presence of a federally guaranteed right hardly means that the selection of those representatives constitutes "the exercise of federal authority." See ante, at 1873. When the people of Georgia pick their representatives in Congress, they are acting as the people of Georgia, not as the corporate agents for the undifferentiated people of the Nation as a whole. See In re Green, 134 U.S. 377, 379, 10 S.Ct. 586, 587, 33 L.Ed. 951 (1890) ("Although (Presidential) electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the state legislatures when acting as electors of federal senators, or the people of the States when acting as electors of representatives in Congress'). The concurring opinion protests that the exercise of " reserved" powers in the area of congressional elections would constitute "state interference with the most basic relation between the National*859 Government and its citizens, the selection of legislative representatives." See ante, at 1873. But when one strips away its abstractions, the concurring opinion is simply saying that the people of Arkansas cannot be permitted to inject themselves into the process by which they' themselves select Arkansas' representatives in Congress. The concurring opinion attempts to defend this surprising proposition by pointing out that FN7. See 1 S. Johnson, A Dictionary of Americans are "citizens of the United States" as the English Language 393 (4th ed. 1773) well as "of the State wherein they reside," Arndt. 14 (defining "congress" as "[a]n appointed § 1, and that national citizenship (particularly after meeting for settlement of affairs between the ratification of the Fourteenth Amendment) "has ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 141 http://web2.westlaw.conVprinttprintstream.aspx?sv=Split&rlti=l &prft=MNff-Mn=18&L.. 3/14/2007 Page 48 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) privileges **1882 and immunities protected from state abridgment by the force of the Constitution itself," ante, at 1874. These facts are indeed " beyond dispute," ante, at 1874, but they do not contradict anything that I have said. Although the United States obviously is a Nation, and although it obviously has citizens, the Constitution does not call for Members of Congress to be elected by the undifferentiated national citizenry; indeed, it does not recognize any mechanism at all (such as a national referendum) for action by the undifferentiated people of the Nation as a whole. See supra, at 1877. Even at the level of national politics, then, there always remains a meaningful distinction between someone who is a citizen of the United States and of Georgia and someone who is a citizen of the United States and of Massachusetts. The Georgia citizen who is unaware of this distinction will have it pointed out to him as soon as he tries to vote in a Massachusetts congressional election. In short, while the majority is correct that the Framers expected the selection process to create a " direct link" between Members of the House of Representatives and the people, ante, at 1855, the link was between the Representatives from each State and the people of that State; the people of Georgia have no say over whom the people of Massachusetts select to represent them in Congress. This arrangement*860 must baffle the majority, Ftas whose understanding of Congress would surely fit more comfortably within a system of nationwide elections. But the fact remains that when it comes to the selection of Members of Congress, the people of each State have retained their independent political identity. As a result, there is absolutely nothing strange about the notion that the people of the States or their state legislatures possess " reserved" powers in this area. FN8. The majority even suggests that congressional elections do not really work in this way, because each House of Congress has the power to judge its Members' qualifications. See ante, at 1855 (citing Art. 1, § 5, cl. 1). But -the power to act as "Judge" under Art. I, § 5, Page 47 is merely the power to apply pre-existing qualifications to which the people of each State have consented. See Powell v. McCormack; 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). Whether or not § 5 directs each House to judge state -law disqualifications as well as those contained in the Constitution, see infra, at 1897-1898, it is clear that neither House may exclude a representative from Massachusetts for failure to meet a qualification that the people of Massachusetts have not accepted. The majority seeks support from the Constitution's specification that Members of Congress "shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States." Art. I, § 6, cl. 1; see ante, at 1855. But the fact that Members of Congress draw a federal salary once they have assembled hardly means that the people of the States lack reserved powers over the selection of their representatives. Indeed, the historical evidence about the compensation provision suggests that the States' reserved powers may even extend beyond the selection stage. The majority itself indicates that if the Constitution had made no provision for congressional compensation, this topic would have been "left to state legislatures." Ante, at 1858; accord, 1 Farrand 215-216 (remarks of James Madison and George Mason); id, at 219, n. *. Likewise, Madison specifically indicated that even with the compensation provision in place, the individual States still *861 enjoyed the reserved power to supplement the federal salary. 3 id., at 315 (remarks at the Virginia ratifying convention). As for the fact that a State has no reserved power to establish qualifications for the office of President, see ante, at 1855, it surely need not follow that a State has no reserved power to establish qualifications for the Members of Congress who represent the people of that State. Because powers are reserved to the States "respectively," it is clear that no State may legislate for another State: Even though the Arkansas Legislature enjoys the reserved power to pass a minimum -wage law for Arkansas, it has no power to pass a minimum -wage law for m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 142 http://web2.westlaw.comlprint/printstreaxn.aspx?sv--Split&rlti=l&prft=HTU LE&n=18&f... 3/14/2007 Page 49 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) Vermont. For the same reason, Arkansas may not decree that only Arkansas citizens are eligible to be President of the United States; the selection of the President is not up to Arkansas alone, and Arkansas can no more prescribe the qualifications for that office than it can set the qualifications for Members of Congress from Florida. But none of this **1883 suggests that Arkansas cannot set qualifications for Members of Congress from Arkansas. In fact, the Constitution's treatment of Presidential elections actively contradicts the majority's position. While the individual States have no " reserved" power to set qualifications for the office of President, we have long understood that they do have the power (as far as the Federal Constitution is concerned) to set qualifications for their Presidential electors -the delegates that each State selects to represent it in the electoral college that actually chooses the Nation's chief executive. Even respondents do not dispute that the States may establish qualifications for their delegates to the electoral college, as long as those qualifications pass muster under other constitutional provisions (primarily the First and Fourteenth Amendments). See Williams v. Rhodes, 393 U.S. 23, 29, 89 S.Ct. 5, 9-10, 21 L.Ed.2d 24 (1968); McPherson v. Blacker, 146 U.S. 1, 27-36, 13 S.Ct. 3, 7-11, 36 L.Ed. 869 (1992). As the majority cannot argue that the Constitutionaffrmatively *862 grants this power,FN9 the power must be one that is "reserved" to the States. It necessarily follows that the majority's understanding of the Tenth Amendment is incorrect, for the position of Presidential elector surely " 'spring[s] out of the existence of the national government.' " See ante, at 1854. FN9. The only provision that might conceivably do so is Article II, § 1, which recognizes the authority of state legislatures to specify the "Manner" in which a State appoints its Presidential electors. But if a qualifications law is a " Manner" regulation for purposes of this Clause, then it is also a "Manner" regulation for purposes of Article I, § 4-which would mean that the Constitution specifically recognizes the power of both Page 48 the States and the Congress to set qualifications for Senators and Representatives. In a final effort to deny that the people of the States enjoy "reserved" powers over the selection of their representatives in Congress, the majority suggests that the Constitution expressly delegates to the States certain powers over congressional elections. See ante, at 1855-1856. Such delegations of power, the majority argues, would be superfluous if the people of the States enjoyed reserved powers in this area. Only one constitutional provision -the Times, Places and Manner Clause of Article I, § 4-even arguably. supports the majority's suggestion. It reads: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." Contrary to the majority's assumption, however, this Clause does not delegate any authority to the States. Instead, it simply imposes a duty upon them. The majority gets it exactly right: By specifying that the state legislatures "shall" prescribe the details necessary to hold congressional elections, the Clause "expressly requires action by the States." *863 See ante, at 1855. This command meshes with one of the principal purposes of Congress' " make or alter" power: to ensure that the States hold congressional elections in the first place, so that Congress continues to exist. As one reporter summarized a speech made by John Jay at the New York ratifying convention:"[Elvery government was imperfect, unless it had a power of preserving itself. Suppose that, by design or accident, the states should neglect to appoint representatives; certainly there should be some constitutional remedy for this evil. The obvious meaning of the paragraph was, that, if this neglect should take place, Congress should have power, by law, to support the government, and prevent the dissolution of the Union. [Jay] believed this was the design of the 0 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 143 http://web2.westlaw.cony/printlprintstream..aspx?sv=Split&rlti=l&pift=HTMLE &n=18&L.. 3/14/2007 Page 50 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) federal Convention." 2 Elliot 326 (emphasis in original). FN10 FNIO. Accord, e.g., 2 Elliot 24 (remarks of Caleb Strong at the Massachusetts ratifying convention) ("[I]f the legislature of a state should refuse to make such regulations, the consequence will be, that the representatives will not be chosen, and the general government will be dissolved. In such case, can gentlemen say that a power to remedy the evil is not necessary to be lodged somewhere? And where can it be lodged but in Congress?"); 2 Documentary History of the Ratification of the Constitution 400 (M. Jensen ed. 1976) (notes of Anthony Wayne at the Pennsylvania ratifying convention) ("4th section occasioned by an eventual invasion, insurrection, etc."); The Federalist No. 59, at 363 (Hamilton) (observing that if not subject to any checks, the States "could at any moment annihilate [the Federal Government] by neglecting to provide for the choice of persons to administer its affairs"). These statements about the Clause's purposes also help refute the majority's claim that it was bizarre for the Framers to leave the States relatively free to enact qualifications for congressional office while simultaneously giving Congress " make or alter" power over the States' time, place, and manner regulations. See infra, at 1899-1900. **1884 Constitutional provisions that impose affirmative duties on the States are hardly inconsistent with the notion of reserved powers. *864 Of course, the second part of the Times, Places and Manner Clause does grant a power rather than impose a duty. As its contrasting uses of the words "shall" and "may" confirm, however, the Clause grants power exclusively to Congress, not to the States. If the Clause did not exist at all, the States would still be able to prescribe the times, Page 49 places, and manner of holding congressional elections; the deletion of the provision would simply deprive Congress of the power to override these state regulations. The majority also mentions Article II, § 1, cl. 2: " Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of [Presidential] Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress...: ' But this Clause has nothing to do with congressional elections, and in any event it, too, imposes an affirmative obligation on the States. In fact, some such barebones provision was essential in order to coordinate the creation of the electoral college. As mentioned above, moreover, it is uncontested that the States enjoy the reserved power to specify qualifications for the Presidential electors who are chosen pursuant to this Clause. See supra, at 1882-1883. Respondent Thornton seeks to buttress the majority's position with Article I. § 2, cl. 1, which provides: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." According to respondent Thornton, this provision " grants States authority to prescribe the qualifications of [voters]" in congressional elections. Brief for Respondent Congressman Ray Thornton 4. If anything, however, the Clause omits the power that the States would otherwise enjoy. Though it does leave States with the ability to control who may vote *865 in congressional elections, it has the effect of restricting their authority to establish special requirements that do not apply in elections for the state legislature. Our case law interpreting the Clause affirmatively supports the view that the States enjoy reserved powers over congressional elections. We have treated the Clause as a one-way ratchet: While the requirements for voting in congressional elections m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 144 http://web2.westlaw.com/printlprintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 51 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) cannot be more onerous than the requirements for voting in elections for the most numerous branch of the state legislature, they can be less so. See Tashjian v. Republican Party of Conn., 479 U.S. 208, 225-229, 107 S.Ct. 544, 554-556, 93 L.Ed.2d 514 (1986). If this interpretation of the CIause is correct, it means that even with the Clause in place, States still have partial freedom to set special voting requirements for congressional elections. As this power is not granted in Article I, it must be among the "reserved" powers. II I take it to be established, then, that the people of Arkansas do enjoy "reserved" powers over the selection of their representatives in Congress. Purporting to exercise those reserved powers, they have agreed among themselves that the candidates covered by § 3 of Amendment 73-those whom they have already elected to three or more terms in the House of Representatives or to two or more terms in the Senate -should not be eligible to appear on the ballot for reelection, but should nonetheless be returned to Congress**1885 if enough voters are sufficiently enthusiastic about their candidacy to write in their names. Whatever one might think of the wisdom of this arrangement, we may not override the decision of the people of Arkansas unless something in the Federal Constitution deprives them of the power to enact such measures. The majority settles on "the Qualifications Clauses" as the constitutional provisions that Amendment 73 violates. See ante, at 1856. Because I do not read those provisions to impose*866 any unstated prohibitions on the States, it is unnecessary for me to decide whether the majority is correct to identify Arkansas' ballot -access restriction with laws fixing true term limits or otherwise prescribing " qualifications" for congressional office. As I discuss in Part A below, the Qualifications Clauses are merely straightforward recitations of the minimum eligibility requirements that the Framers thought it essential for every Member of Congress to meet. They restrict state power only in that they prevent the States from abolishing all eligibility requirements for membership in Congress. Page 50 Because the text of the Qualifications Clauses does not support its position, the majority turns instead to its vision of the democratic principles that animated the Framers. But the majority's analysis goes to a question that is not before us: whether Congress has the power to prescribe qualifications for its own members. As I discuss in Part B, the democratic principles that contributed to the Framers' decision to withhold this power from Congress do not prove that the Framers also deprived the people of the States of their reserved authority to set eligibility requirements for their own representatives. In Part C, I review the majority's more specific historical evidence. To the extent that they bear on this case, the records of the Philadelphia Convention affirmatively support my unwillingness to find hidden meaning in the Qualifications Clauses, while the surviving records from the ratification debates help neither side. As for the postratification period, five States supplemented the constitutional disqualifications in their very first election laws. The historical evidence thus refutes any notion that the Qualifications Clauses were generally understood to be exclusive. Yet the majority must establish just such an understanding in order to justify its position that the Clauses impose unstated prohibitions on the States and the people. In my view, the historical evidence is simply inadequate to warrant the majority's *867 conclusion that the Qualifications Clauses mean anything more than what they say. A The provisions that are generally known as the Qualifications Clauses read as follows: "No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen." Art.1, § 2, cl. 2. "No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen." Art. I, § 3, cl. 3. Q 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 145 http://web2.westlaw.con/printtprintstream.aspx?sv=Split&rlti=l &prTt=HTMLE&n=18&L.. 3/14/2007 Page 52 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct 1842) Later in Article I, the "Ineligibility Clause" imposes another nationwide disqualification from congressional office: "[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." § 6, cl. 2. The majority is quite correct that the "negative phrasing" of these Clauses has little relevance. See ante, at 1849-1850, n. 8. The Qualifications Clauses would mean the same thing had they been enacted in the form that the Philadelphia Convention referred them to the Committee of Style: "Every Member of the House of Representatives shall be of the age of twenty-five years at Ieast; shall have been a citizen of the United States for at least seven years before his election; and shall be, at the time of his election, an inhabitant of the State in which he shall be chosen." 2 Farrand 565. **1886 See also id, at 567 (same phrasing for Senate Qualifications Clause). But these different formulations -whether negative or affirmative -merely establish minimum qualifications. *868 They are quite different from an exclusive formulation, such as the following:"Every Person who shall have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall, when elected, be an Inhabitant of that State in which he shall be chosen, shall be eligible to be a Representative." At least on their face, then, the Qualifications Clauses do nothing to prohibit the people of a State from establishing additional eligibility requirements for their own representatives. Joseph Story thought that such a prohibition was nonetheless implicit in the constitutional list of qualifications, because "[fjrom the very nature of such a provision, the affirmation of these qualifications would seem to imply a negative of all others." I Commentaries on the Constitution of the United States § 624 (1833); see also ante, at 1850 n. 9. This argument rests on the maxim expressio unius est exclusio alterius. When the Framers decided which qualifications to include in the Constitution, they also decided not to include any other qualifications in the Constitution. In Story's Page 51 view, it would conflict with this latter decision for the people of the individual States to decide, as a matter of state law, that they would like their own representatives in Congress to meet additional eligibility requirements. To spell out the logic underlying this argument is to expose its weakness. Even if one were willing to ignore the distinction between requirements enshrined in the Constitution and other requirements that the Framers were content to leave within the reach of ordinary law, Story's application of the expressio unius maxim takes no account of federalism. At most, the specification of certain nationwide disqualifications in the Constitution implies the negation of other nationwide disqualifications; it does not imply that individual States or their people are barred from adopting their own *869 disqualifications on a state -by -state basis. Thus, the one delegate to the Philadelphia Convention who voiced anything approaching Story's argument said only that a recital of qualifications in the Constitution would imply that Congress lacked any qualification -setting power. See 2 Farrand 123 (remarks of John Dickinson); cf, ante, at 1850, n. 9, and 1860-1861, n. 27. The Qualifications Clauses do prevent the individual States from abolishing all eligibility requirements for Congress. This restriction on state power reflects the fact that when the people of one State send immature, disloyal, or unknowledgeable representatives to Congress, they jeopardize not only their own interests but also the interests of the people of other States. Because Congress wields power over all the States, the people of each State need some guarantee that the legislators elected by the people of other States will meet minimum standards of competence. The Qualifications Clauses provide that guarantee: They list the requirements that the Framers considered essential to protect the competence of the National Legislature.FN t t FNIL Thus, the age requirement was intended to ensure that Members of Congress were people of mature judgment and experience. See, e.g., 1 Farrand 375 © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?sv=.Split&rlti=l &prh=HTU LE&n=18&f... 3/14/2007 Page 53 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779, 115 S.Ct. 1842) (remarks of George Mason at the Philadelphia Convention); 3 id., at 147 (remarks of James McHenry before the Maryland House of Delegates). The citizenship requirement was intended both to ensure that Members of Congress were familiar with the country and that they were not unduly susceptible to foreign influence. See, e.g., 2 id., at 216 (remarks of George Mason). The inhabitancy requirement was intended to produce a National Legislature whose Members, collectively, had a local knowledge of all the States. See, e.g., The Federalist No. 56 (Madison). The Ineligibility Clause was intended to guard against corruption. See, e.g., 1 Farrand 381 (remarks of Alexander Hamilton). If the people of a State decide that they would like their representatives to possess additional qualifications, however, they have done nothing to frustrate the policy behind the Qualifications Clauses. Anyone who possesses all of the constitutional qualifications, plus some qualifications required by state law, still has all of the federal qualifications. *870 Accordingly, the fact that the Constitution specifies certain qualifications that the Framers deemed necessary to protect the competence**1887 of the National Legislature does not imply that it strips the people of the individual States of the power to protect their own interests by adding other requirements for their own representatives. The people of other States could legitimately complain if the people of Arkansas decide, in a particular election, to send a 6-year-old to Congress. But the Constitution gives the people of other States no basis to complain if the people of Arkansas elect a freshman representative in preference to a long-term incumbent. That being the case, it is hard to see why the rights of the people of other States have been violated when the people of Arkansas decide to enact a more general disqualification of long-term incumbents. Such a disqualification certainly is subject to scrutiny under other constitutional provisions, such as the First and Fourteenth Amendments. But as long as the Page 52 candidate whom they send to Congress meets the constitutional age, citizenship, and inhabitancy requirements, the people of Arkansas have not violated the Qualifications Clauses. This conclusion is buttressed by our reluctance to read constitutional provisions to preclude state power by negative implication. The very structure of the Constitution counsels such hesitation. After all, § 10 of Article I contains a brief list of express prohibitions on the States. CL Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517-519, 112 S.Ct. 2608, 2618-2619, 120 L.Ed.2d 407 (1992) (STEVENS, J.) (applying the expressio unius maxim to conclude that Congress' inclusion of an express pre-emption clause in a federal statute implies that state laws beyond the reach of that clause are not pre-empted); Nevada v. Hall, 440 U.S. 410, 425, 99 S.Ct. 1182, 1190, 59 L.Ed.2d 416 (1979) (STEVENS, J.) (suggesting that in light of the Tenth Amendment and the Constitution's express prohibitions on the States, "caution should be exercised before concluding that unstated limitations on state power were intended by the Framers'). Many of the prohibitions listed in *871 § 10, moreover, might have been thought to be implicit in other constitutional provisions or in the very nature of our federal system. Compare, e.g., Art. II, § 2, cl. 2 ("[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties"), and Art. I, § 8, cl. 5 (" The Congress shall have Power ... [t]o coin Money" ), with Art. I, § 10, cl. 1 ("No State shall enter into any Treaty" and "No State shall ... coin Money"); see also Art. VI, cl. 2 (explicitly declaring that state law cannot override the Constitution). The fact that the Framers nonetheless made these prohibitions express confirms that one should not lightly read provisions like the Qualifications Clauses as implicit deprivations of state power. See generally Barron ex rel. Tiernan v Mayor of Baltimore, 7 Pet. 243, 249, 8 L.Ed. 672 (1833). FN12 FN12. The principle that the Constitution rests on the consent of the people of the States points in the same direction. Both the process of selecting delegates to the © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1a4'7 http://web2.westlaw.com/printlprintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&L.. 3/14/2007 Page 54 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) Philadelphia Convention and the ratification procedure erected by Article VII were designed to let the States and the people of the States protect their interests. Lest those protections be evaded, one should not be quick to read the Qualifications Clauses as imposing unstated prohibitions that pre-empt all state qualifications laws. Cf. L. Tribe, American Constitutional Law § 6-25, p. 480 (2d ed. 1988) (arguing that courts should hesitate to read federal statutes to pre-empt state law, because "to give the state -displacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which Garcia [v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) ] relied to protect states' interests"); Gregory v. Ashcroft, 501 U.S. 452, 464, III S.Ct. 2395, 2403, 115 L.Ed.2d 410 (1991) (applying this argument). The majority responds that "a patchwork of state qualifications" would "undermin[e] the uniformity and the national character that the Framers envisioned and sought to ensure." Ante, at 1864. Yet the Framers thought it perfectly consistent with the "national character" of Congress for the Senators and Representatives from each State to be chosen by the legislature or the people of that State. The majority never explains why Congress' fundamental character permits this state -centered system, but nonetheless prohibits *872 the people of the States and their state legislatures from setting any eligibility requirements for the candidates who seek to represent them. **1888 As for the majority's related assertion that the Framers intended qualification requirements to be uniform, this is a conclusion, not an argument. Indeed, it is a conclusion that the Qualifications Clauses themselves contradict. At the time of the framing, and for some years thereafter, the Clauses' citizenship requirements incorporated laws that varied from State to State. Thus, the Qualifications Clauses themselves made it possible that a person would be qualified to represent State A in Congress Page 53 even though a similarly situated person would not be qualified to represent State B. To understand this point requires some background. Before the Constitution was adopted, citizenship was controlled entirely by state law, and the different States established different criteria. See J. Kettner, Development of American Citizenship, 1608-1870, pp. 213-218 (1979). Even after the Constitution gave Congress the power to "establish an uniform Rule of Naturalization ... throughout the United States," Art. I, § 8, cl. 4, Congress was under no obligation to do so, and the Framers surely expected state law to continue in full force unless and until Congress acted. Cf. Sturges v. Crowninshield, 4 Wheat. 122, 196, 4 L.Ed. 529 (1819) (so interpreting the other part of § 8, cl. 4, which empowers Congress to establish "uniform Laws on the subject of Bankruptcies").FN13 Accordingly, the constitutional requirement that *873 Members of Congress be United States citizens meant different things in different States. The very first contested -election case in the House of Representatives, which involved the citizenship of a would-be Congressman from South Carolina, illustrates this principle. As Representative James Madison told his colleagues, "I take it to be a clear point, that we are to be guided, in our decision, by the laws and constitution of South Carolina, so far as they can guide us; and where the laws do not expressly guide us, we must be guided by principles of a general nature...:. Cases of Contested Elections in Congress 32 (M. Clarke & D. Hall eds. 1834) (reporting proceedings from May 22, 1789). FN 13. Even when Congress enacted the first federal naturalization law in 1790, it left open the possibility that the individual States could establish more lenient standards of their own for admitting people to citizenship. While Hamilton had suggested that Congress' power to " establish an Uniform Rule" logically precluded the States from deviating downward from the rule that Congress established, see The Federalist No. 32, at 199, the early cases on this question took the opposite view. See Collet v. Collet, 2 m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 55 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) Dall. 294, 296, 1 L.Ed. 387 (CC Pa.1792) (Wilson, Blair, and Peters, JJ.). States therefore continued to enact naturalization laws of their own until 1795, when Congress passed an exclusive naturalization law. See J. Kettner, Development of American Citizenship, 1608-1870, pp. 242-243 (1978). Even after Congress chose to exercise its power to prescribe a uniform route to naturalization, the durational element of the citizenship requirement in the Qualifications Clauses ensured that variances in state law would continue to matter. Thus, in 1794 the Senate refused to seat Albert Gallatin because, owing to the individual peculiarities of the laws of the two relevant States, he had not been a citizen for the required nine years. Id., at 859-862, 867 (reporting proceedings from February 20 and 28, 1794). Even if the Qualifications Clauses had not themselves incorporated nonuniform requirements, of course, there would still be no basis for the assertion of the plurality below that they mandate " uniformity in qualifications." See 316 Ark. 251, 265, 872 S.W.2d 349, 356 (1994). The Clauses wholly omit the exclusivity provision that, according to both the plurality below and today's majority, was their central focus. In fact, neither the text nor the apparent purpose of the Qualifications Clauses does anything to refute Thomas Jefferson's elegant legal analysis: *874 "Had the Constitution been silent, nobody can doubt but that the right to prescribe all the qualifications and disqualifications of those they would send to represent them, would have belonged to the State. So also the Constitution might have prescribed the whole, and excluded all others. It seems to have preferred the middle way. It has exercised the power in part, by declaring some disqualifications.... But it does not declare, itself, that the member shall not be a lunatic, a pauper, a convict of treason,**1889 of murder, of felony, or other infamous crime, or a non-resident of his district; nor does it prohibit to the State the power of declaring these, or any other disqualifications which its particular circumstances may call for; and these may be different in different States. Of Page 54 course, then, by the tenth amendment, the power is reserved to the State." Letter to Joseph C. Cabell (Jan. 31, 1814), in 14 Writings of Thomas Jefferson 82-83 (A. Lipscomb ed. 1904) FNt4 FN14. The majority notes Jefferson's concession that state power to supplement the Qualifications Clauses was "one of the doubtful questions on which honest men may differ with the purest of motives." See ante, at 1860, n. 24; 14 Writings of Thomas Jefferson 83 (A. Lipscomb ed. 1904). But while Jefferson cautioned against impugning the motives of people who might disagree with his position, his use of the phrase "[o]f course" suggests that he himself did not entertain serious doubts of its correctness. N Although the Qualifications Clauses neither state nor imply the prohibition that it finds in them, the majority infers from the Framers' "democratic principles" that the Clauses must have been generally understood to preclude the people of the States and their state legislatures from prescribing any additional qualifications for their representatives in Congress. But the majority's evidence on this point establishes only two more modest propositions: (1) the Framers did not want the Federal Constitution itself to impose a *375 broad set of disqualifications for congressional office, and (2) the Framers did not want the Federal Congress to be able to supplement the few disqualifications that the Constitution does set forth. The logical conclusion is simply that the Framers did not want the people of the States and their state legislatures to be constrained by too many qualifications imposed at the national level. The evidence does not support the majority's more sweeping conclusion that the Framers intended to bar the people of the States and their state legislatures from adopting additional eligibility requirements to help narrow their own choices. I agree with the majority that Congress has no O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. ONX-F http://web2.westlaw.com/print/printstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/ 14/2007 Page 56 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) power to prescribe qualifications for its own Members. This fact, however, does not show that the Qualifications Clauses contain a hidden exclusivity provision. The reason for Congress' incapacity is not that the Qualifications Clauses deprive Congress of the authority to set qualifications, but rather that nothing in the Constitution grants Congress this power. In the absence of such a grant, Congress may not act. But deciding whether the Constitution denies the qualification -setting power to the States and the people of the States requires a fundamentally different legal analysis. Despite the majority's claims to the contrary, see ante, at 1851-1852, n. 12, this explanation for Congress' incapacity to supplement the Qualifications Clauses is perfectly consistent with the reasoning of Powell v. McConnack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). Powell concerned the scope of Article I, § 5, which provides that "[e]ach House [of Congress] shall be the Judge of the Elections, Returns and Qualifications of its own Members." As the majority itself recognizes, "[t]he principal issue [in Powell ] was whether the power granted to each House in Art. I, § 5, ... includes the power to impose qualifications other than those set forth in the text of the Constitution." Ante, at 1847. Contrary to the majority's suggestion, then, the critical question in Powell was whether § 5 conferred a qualification -setting power -not whether the Qualifications*876 Clauses took it away. Compare Powell, supra, at 519, 89 S.Ct., at 1963 (describing the question before the Court as "what power the Constitution confers upon the House through Art. I. § 5"), and at 536, 89 S.Ct., at 1971-72 (describing the Court's task as " determining the meaning of Art. I, § 5") with ante, at 1848, and 1849-1850, n. 8 (suggesting that Powell held that the Qualifications Clauses "limit the power of the House to impose additional qualifications"). See also Buckley v. Valeo, 424 U.S. 1, 133, 96 S.Ct. 612, 689, 46 L.Ed.2d 659 (1976) (taking my view of Powell). Powell 's analysis confirms this point. After summarizing a large quantity of historical material bearing on the original understanding of what it Page 55 meant for a legislature to act **1890 as "the Judge" of the qualifications of its members, see 395 U.S., at 521-531, 89 S.Ct., at 1963-1969, Powell went on to stress that the Philadelphia Convention specifically rejected proposals to grant Congress the power to pass laws prescribing additional qualifications for its Members, and that the Convention rejected these proposals on the very same day that it approved the precursor of § 5. See id., at 533-536, 89 S.Ct., at 1970-1972. Given this historical evidence, the Powell Court refused to read § 5 as empowering the House to prescribe such additional qualifications in its capacity as "Judge." And if nothing in the Constitution gave the House this power, it inevitably followed that the House could not exercise it. Despite the majority's claims, then, Powell itself rested on the proposition that the institutions of the Federal Government enjoy only the powers that are granted to them. See also ante, at 1850, n. 9 (describing the Qualifications Clauses merely as an independent basis for the result reached in Powell) Frr15 FN15. The majority also errs in its interpretation of Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993). See ante, at 1851-1852, n. 12. In dictum, Nixon did refer to "the fixed meaning of `[q]ualifications' set forth in Art. I, § 2." 506 U.S., at 237, 113 S.Ct., at 740. 07 But as both the surrounding context and the internal punctuation of this passage make clear, Nixon was referring to the meaning of the word "Qualifications" in § 5; that term, after all, does not even appear in the House Qualifications Clause of § 2. Thus, Nixon merely said that § 5 directs the House to judge the qualifications "set forth in Art. I, § 2," and not qualifications of its own invention. See also infra, at 1899. There would have been no occasion for Nixon to extend Powell: The only point of its discussion was to explain why the question at issue in Powell was justiciable, while the question at issue in Nixon (which concerned impeachment) was not. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. is http://web2.westlaw.com/printlprintstream.aspx?sv=Split&rlti=l &prft=HTNME&n=18&f... 3/14/2007 Page 57 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) *877 The fact that the Framers did not grant a qualification -setting power to Congress does not imply that they wanted to bar its exercise at the state level. One reason why the Framers decided not to let Congress prescribe the qualifications of its own Members was that incumbents could have used this power to perpetuate themselves or their ilk in office. As Madison pointed out at the Philadelphia Convention, Members of Congress would have an obvious conflict of interest if they could determine who may run against them. 2 Farrand 250; see also ante, at 1850, n. 10. But neither the people of the States nor the state legislatures would labor under the same conflict of interest when prescribing qualifications for Members of Congress, and so the Framers would have had to use a different calculus in determining whether to deprive them of this power. As the majority argues, democratic principles also contributed to the Framers' decision to withhold the qualification -setting power from Congress. But the majority is wrong to suggest that the same principles must also have led the Framers to deny this power to the people of the States and the state legislatures. In particular, it simply is not true that " the source of the qualification is of little moment in assessing the qualification's restrictive impact." Ante, at 1863. There is a world of difference between a self-imposed constraint and a constraint imposed from above. Congressional power over qualifications would have enabled the representatives from some States, acting collectively in the National Legislature, to prevent the people of another State from electing their preferred candidates. The John Wilkes episode in 18th-century England illustrates the problems that might result. As the majority mentions, Wilkes' district repeatedly elected him to the House of Commons, only to have a majority of the representatives of other *878 districts frustrate their will by voting to exclude him. See ante, at 1848. Americans who remembered these events might well have wanted to prevent the National Legislature from fettering the choices of the people of any individual State (for the House of Representatives) or their state legislators (for the Senate). Page 56 Yet this is simply to say that qualifications should not be set at the national level for offices whose occupants are selected at the state level. The majority never identifies the democratic principles that would have been violated if a state legislature, in the days before the Constitution was amended to provide**1891 for the direct election of Senators, had imposed some limits of its own on the field of candidates that it would consider for appointment. FIN16 Likewise, the majority does not explain why democratic principles prohibit the people of a State from adopting additional eligibility requirements to help narrow their choices among candidates seeking to represent them in the House of Representatives. Indeed, the invocation of democratic principles to invalidate Amendment 73 seems particularly difficult in the present case, because Amendment 73 remains fully within the control of the people of Arkansas. If they wanted to repeal it (despite the 20-point margin by which they enacted it less than three years ago), they could do so by a simple majority vote. See Ark. Const., Arndt. 7. FN16. Oregon, for instance, pioneered a system in which the state Iegislature bound itself to appoint the candidates chosen in a statewide vote of the people. See Hills, A Defense of State Constitutional Limits on Federal Congressional Terms, 53 U.Pitt.L.Rev. 97, 108 (1991). The majority is in the uncomfortable position of suggesting that this system violated " democratic principles." The majority appears to believe that restrictions on eligibility for office are inherently undemocratic. But the Qualifications Clauses themselves prove that the Framers did not share this view; eligibility requirements to which the people of the States consent are perfectly consistent with the Framers' *879 scheme. In fact, we have described "the authority of the people of the States to determine the qualifications of their most important government officials" as "an authority that lies at the heart of representative government." Gregory v. Ashcroft, 501 U.S. 452, 463, 111 S.Ct. 2395, 2402, 115 L.Ed.2d 410 (1991) (internal quotation marks omitted) (refusing to read federal law to © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1-5IL http://web2.westlaw.com/printtprintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 58 of 84 115 S.Ct 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct 1842) preclude States from imposing a mandatory retirement age on state judges who are subject to periodic retention elections). When the people of a State themselves decide to restrict the field of candidates whom they are willing to send to Washington as their representatives, they simply have not violated the principle that "the people should choose whom they please to govern them." See 2 Elliot 257 (remarks of Alexander Hamilton at the New York Convention). At one point, the majority suggests that the principle identified by Hamilton encompasses not only the electorate's right to choose, but also "the egalitarian concept that the opportunity to be elected [is] open to all." See ante, at 1850; see also ante, at 1862-1863. To the extent that the second idea has any content independent of the first, the majority apparently would read the Qualifications Clauses to create a personal right to be a candidate for Congress, and then to set that right above the authority of the people of the States to prescribe eligibility requirements for public office. But we have never suggested that "the opportunity to be elected" is open even to those whom the voters have decided not to elect. On that rationale, a candidate might have a right to appear on the ballot in the general election even though he lost in the primary. But see Storer v. Brown, 415 U.S. 724, 746, n. 16, 94 S.Ct. 1274, 1287, n. 16, 39 L.Ed.2d 714 (1974); see also Bullock v. Carter, 405 U.S. 134, 142-143, 92 S.Ct. 849, 855-56, 31 L.Ed.2d 92 (1972) (rejecting the proposition that there is any fundamental right to be a candidate, separate and apart from the electorate's right to vote). Thus, the majority ultimately concedes that its "egalitarian concept" derives entirely from the electorate's right to choose. See ante, at 1850, n. 11; see also ante, at 1862 (deriving the "egalitarian *880 ideal" from the proposition that the Qualifications Clauses do not unduly " `fetter the judgment ... of the people' " (quoting The Federalist No. 57, at 351)). If the latter is not violated, then neither is the former_ In . seeking ratification of the Constitution, James Madison did assert that "[u]nder these reasonable limitations [set out in the House Qualifications CIause], the door of this part of the federal Page 57 government is open to merit of every description..." The Federalist No. 52, at 326. The majority stresses this assertion, and others to the same effect, in support of its "egalitarian concept." See ante, at 1850-1851, 1862-1863. and n. 30. But there is no reason to interpret these statements as anything more than claims that the Constitution itself imposes relatively few disqualifications for congressional office.**1892 FN17 One should not lightly assume that Madisonand *881 his colleagues, who were attempting to win support at the state level for the new Constitution, were proclaiming the inability of the people of the States or their state legislatures to prescribe any eligibility requirements for their own Representatives or Senators. Instead, they were merely responding to the charge that the Constitution was undemocratic and would lead to aristocracies in office. Cf. ante, at 1849 (referring to "the antifederalist charge that the new Constitution favored the wealthy and well born"). The statement that the qualifications imposed in the Constitution are not unduly restrictive hardly implies that the Constitution withdrew the power of the people of each State to prescribe additional eligibility requirements for their own Representatives if they so desired. FN17. For instance, the majority quotes Noah Webster's observation that under the Constitution, "the places of senators are wisely left open to all persons of suitable age and merit, and who have been citizens of the United States for nine years" See ante, at 1863, n. 30 (citing "A Citizen of America" (Oct. 17, 1787), in 1 Debate on the Constitution 129, 142 (B. Bailyn ed. 1993) (hereinafter Bailyn)). But there is no reason to read Webster as denying the power of state legislatures to pass resolutions limiting the field of potential candidates that they would consider for appointment to the Senate. Indeed, it seems implausible that Webster would have been invoking the majority's vision of "democratic principles" in support of the constitutional provisions calling for Senators to be appointed by the various state legislatures rather than being elected © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 152 http://web2.westlaw.comlprintlpiintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&L.. 3/14/2007 Page 59 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct 1842) directly by the people of the States. Similarly, the majority quotes a newspaper piece written by John Stevens, Jr., to the people of New York. See ante, at 1863. But Stevens gave the following explanation for his assertion that "[n]o man who has real merit ... need despair" under the system erected by the Constitution: "He first distinguishes himself amongst his neighbours at township and county meeting; he is next sent to the State Legislature. In this theatre his abilities ... are ... displayed to the views of every man in the State: from hence his ascent to a seat in Congress becomes easy and sure." "Americans," Daily Advertiser, Dec. 12, 1787, in 1 Bailyn 487, 492. As the States indisputably controlled eligibility requirements for membership in the various state legislatures, and indeed had established some disqualifications, I do not read Stevens to be saying that they were barred from doing the same thing with respect to Congress. Without addressing whether the people of the States may supplement the Qualifications Clauses, Stevens was merely praising the Constitution for imposing few such requirements of its own. In fact, the authority to narrow the field of candidates in this way may be part and parcel of the right to elect Members of Congress. That is, the right to choose may include the right to winnow. See Hills, A Defense of State Constitutional Limits on Federal Congressional Terms, 53 U.Pitt.L.Rev. 97, 107-109 (1991). To appreciate this point, it is useful to consider the Constitution as it existed before the Seventeenth Amendment was adopted in 1913. The Framers' scheme called for the legislature of each State to choose the Senator, from that State. Art. I, § 3, cl. 1. The majority offers no reason to believe that state Iegislatures could not adopt prospective rules to guide themselves in carrying out this responsibility; not only is there no express language in the Constitution barring legislatures Page 58 from passing laws to narrow their choices, but there also is absolutely no basis for inferring such a prohibition. Imagine the worst -case scenario: a state legislature, wishing *882 to punish one of the Senators from its State for his vote on some bill, enacts a qualifications law that the Senator does not satisfy. The Senator would still be able to serve out his term; the Constitution provides for Senators to be chosen for 6-year terms, Art. I, § 3, cl. 1, and a person who has been seated in Congress can be removed only if two-thirds of the Members of his House vote to expel him, § 5, cl. 2. While the Senator would be disqualified from seeking reappointment, under the Framers' Constitution the state legislature already enjoyed unfettered discretion to deny him reappointment anyway. Instead of passing a qualifications law, the legislature could simply have passed a resolution declaring its intention to appoint someone else the next time around. Thus, the legislature's power to adopt laws to narrow its own choices added nothing to its general appointment power. While it is easier to coordinate a majority of state legislators than to coordinate a majority of qualified voters, the basic principle should be the same in both contexts. Just as **1893 the state legislature enjoyed virtually unfettered discretion over whom to appoint to the Senate under Art. I, § 3, so the qualified voters of the State enjoyed virtually unfettered discretion over whom to elect to the House of Representatives under Art. I, § 2. If there is no reason to believe that the Framers' Constitution barred state legislatures from adopting prospective rules to narrow their choices for Senator, then there is also no reason to believe that it barred the people of the States from adopting prospective rules to narrow their choices for Representative. In addition, there surely is no reason to believe that the Senate Qualifications Clause suddenly acquired an exclusivity provision in 1913, when the Seventeenth Amendment was adopted. Now that the people of the States are charged with choosing both Senators and Representatives, it follows that they may adopt eligibility requirements for Senators as well as for Representatives. *883 I would go further, for I see nothing in the ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 153 http://web2.westlaw.comlprintlprintstream. aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 60 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct 1842) Constitution that precludes the people of each State (if they so desire) from authorizing their elected state legislators to prescribe qualifications on their behalf. If the people of a State decide that they do not trust their state legislature with this power, they are free to amend their state constitution to withdraw it. This arrangement seems perfectly consistent with the Framers' scheme. From the time of the framing until after the Civil War, for example, the Federal Constitution did not bar state governments from abridging the freedom of speech or the freedom of the press, even when those freedoms were being exercised in connection with congressional elections. It was the state constitutions that determined whether state governments could silence the supporters of disfavored congressional candidates, just as it was the state constitutions that determined whether the States could persecute people who held disfavored religious beliefs or could expropriate property without providing just compensation. It would not be at all odd if the state constitutions also determined whether the state legislature could pass qualifications statutes. But one need not agree with me that the people of each State may delegate their qualification -setting power in order to uphold Arkansas' Amendment 73. Amendment 73 is not the act of a state legislature; it is the act of the people of Arkansas, adopted at a direct election and inserted into the State Constitution. The majority never explains why giving effect to the people's decision would violate the "democratic principles" that undergird the Constitution. Instead, the majority's discussion of democratic principles is directed entirely to attacking eligibility requirements imposed on the people of a State by an entity other than themselves. The majority protests that any distinction between the people of the States and the state Iegislatures is " untenable" and "astonishing." See ante, at 1858, n. 19. In the limited area of congressional elections, however, the Framers themselves*884 drew this distinction: They specifically provided for Senators to be chosen by the state legislatures and for Representatives to be chosen by the people. In the context of congressional elections, the Framers obviously saw a meaningful difference between Page 59 direct action by the people of each State and action by their state legislatures. Thus, even if one believed that the Framers intended to bar state legislatures from adopting qualifications laws that restrict the people's choices, it would not follow that the people themselves are precluded from agreeing upon eligibility requirements to help narrow their own choices. To be sure, if the Qualifications Clauses were exclusive, they would bar all additional qualifications, whether adopted by popular initiative or by statute. But the majority simply assumes that if state legislatures are barred from prescribing qualifications, it must be because the Qualifications Clauses are exclusive. It would strain the text of the Constitution far less to locate the bar in Article I, § 2, and the Seventeenth Amendment instead: One could plausibly maintain that qualification requirements imposed by state - legislatures violate the constitutional provisions entrusting the selection of Members of Congress to the people of the States, even while one acknowledges that qualification requirements imposed**1894 by the people themselves are perfectly constitutional. The majority never justifies its conclusion that " democratic principles" require it to reject even this intermediate position. C In addition to its arguments about democratic principles, the majority asserts that more specific historical evidence supports its view that the Framers did not intend to permit supplementation of the Qualifications Clauses. But when one focuses on the distinction between congressional power to add qualifications for congressional office and the power of the people or their state legislatures to add such qualifications, one realizes that this assertion has little basis. *885 In particular, the detail with which the majority recites the historical evidence set forth in Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), should not obscure the fact that this evidence has no bearing on the question now before the Court. As the majority © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 154 http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/ 14/2007 Page 61 of 84 115 S.Ct. 1842 Page 60 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) ultimately concedes, see ante, at 1850, 1851, 1852, legislature," he was merely restating his it does not establish "the Framers' intent that the prior observation that the power to set qualifications in the Constitution be fixed and qualifications "forms no part of the power exclusive," ante, at 1849; it shows only that the to be conferred upon the national Framers did not intend Congress to be able to enact government." See The Federalist No. 60, qualifications laws.M3$ If anything,*886 the at 371 (emphasis added). Indeed, only if " solidity of the evidence supporting Powell 's view the legislature" to which Hamilton was that Congress lacks the power to supplement the referring is Congress can one make sense constitutional disqualifications merely highlights the of his remark that the qualifications of weakness**1895 of the majority's evidence that the voters as well as Congressmen are "fixed States and the people of the States also lack this in the Constitution" and "unalterable by power. the legislature." Hamilton surely knew that the States or the people of the States control eligibility for the franchise. See FN18. For instance, the majority quotes at Art. I, § 2, cl. 1. length from the debate that arose in the The majority does omit the context Philadelphia Convention when the necessary to understand one aspect of the Committee of Detail proposed the historical evidence presented in Powell. following clause: "The Legislature of the The majority quotes Powell 's observation United States shall have authority to that "on the eve of the Constitutional establish such uniform qualifications of the Convention, English precedent stood for members of each House, with regard to the proposition that 'the law of the land property, as to the said Legislature shall had regulated the qualifications of seem expedient." See 2 Farrand 179, members to serve in parliament' and those 248-251; ante, at 1849. The defeat of qualifications were 'not occasional but this proposal -like the defeat of Gouverneur fixed.' " 395 U.S., at 528, 89 S.Ct., at Morris' motion to drop the words "with 1967-68 (quoting 16 Parliamentary History regard to property" from the clause, so as of England 589, 590 (1769)); see ante, at to empower Congress to enact 1848, The English rule seems of only qualifications of any sort -simply reflects marginal relevance: The pre-existing rule the Framers' decision not to grant Congress in America -that States could add the power to supplement the constitutional qualifications for their representatives in qualifications. Considered out of context, Congress, see n. 3, supra, while Congress some of James Madison's comments during itself could not -is surely more important. the debate might be thought to go farther. But in any event, Powell did not claim that See ante, at 1849. But the majority itself the English rule deemed parliamentary properly dispels this false impression. See qualifications to be fixed in the country's ante, at 1850, n. 10; see also Powell v. (unwritten) constitution, beyond the reach McCorniack, 395 U.S., at 534, 89 S.Ct., at of a properly enacted law. Instead, 1970-71. qualifications were "fixed" rather than " Likewise, Powell drew support from occasional" only in the sense that neither Alexander Hamilton's comments in The House of Parliament could "exclude Federalist No. 60, which the majority also members -elect for general misconduct not quotes. See ante, at 1849. But as the within standing qualifications." Powell, majority concedes, when Hamilton wrote 395 U.S., at 528, 89 S.Ct. at 1968. The that "[t]he qualifications of the persons English rule, in other words, was simply who may choose or be chosen [for that when sitting as the judge of its Congress] ... are defined and fixed in the members' qualifications, each House of Constitution, and are unalterable by the Parliament could do no more than © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. J-55 http://web2.westlaw.conVprintlprintstream.aspx?sv=Split&rlti=l&prft=HTMLE&n=18&f .. 3/14/2007 Page 62 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct 1842) administer the pre-existing laws that defined those qualifications, see id, at 529, 89 S.Ct., at 1969, for "one House of Parliament cannot create a disability unknown to the law." T. Plucknett, Taswell-Langmead's English Constitutional History 585 (11th ed. 1960); cf. INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). This history was relevant to Powell (which dealt with the grounds on which one House of Congress could exclude a Member -elect), but it is not relevant to this case. To the extent that the records from the Philadelphia Convention itself shed light on this case, they tend to hurt the majority's case. The only evidence that directly bears on the question now before the Court comes from the Committee of Detail, a five -member body that the Convention charged with the crucial task of drafting a Constitution to reflect the decisions that the Convention had reached during its first two months of work. A document that Max Farrand described as "[a]n early, perhaps the first, draft of the committee's work" survived among the papers of George Mason. 1 Farrand xxiii, n. 36. The draft is in the handwriting of *887 Edmund Randolph, the chairman of the Committee, with emendations in the hand of John Rutledge, another member of the Committee. As Professor Farrand noted, "[e]ach item in this document ... is either checked off or crossed out, showing that it was used in the preparation of subsequent drafts." 2 id., at 137, n. 6; see also W. Meigs, The Growth of the Constitution in the Federal Convention of 1787, pp. I -IX (1900) (providing a facsimile of the document). The document is an extensive outline of the Constitution. Its treatment of the National Legislature is divided into two parts, one for the " House of Delegates" and one for the Senate. The Qualifications Clause for the House of Delegates originally read as follows: "The qualifications of a delegate shall be the age of twenty five years at least. and citizenship: and any person possessing these qualifications may be elected except [blank Page 61 space]." Id, at II (emphasis added). The drafter(s) of this language apparently contemplated that the Committee might want to insert some exceptions to the exclusivity provision. But rather than simply deleting the word "except" -as it might have done if it had decided to have no exceptions at all to the exclusivity provision -the Committee deleted the exclusivity provision itself. In the document that has come down to us, all the words after the colon are crossed out. Ibid. The majority speculates that the exclusivity provision may have been deleted as superfluous. See ante, at 1860, n. 27 M19 But the same draft that contained the exclusivity language in the House Qualifications Clause contained no *888 such language in the Senate Qualifications Clause. See 2 Farrand 141. Thus, the draft appears to reflect a deliberate judgment to distinguish between the House qualifications and the Senate qualifications, and to make only the former exclusive. If so, then the deletion of the exclusivity provision indicates that the Committee expected neither list of qualifications to be exclusive. FN19. The majority also argues that in any event, the views of the members of the Committee "tel[1] us little about the views of the Convention as a whole." Ante, at 1860, n. 27. But our task is simply to determine whether at the time of the framing, the language of the Qualifications Clauses would have been commonly understood to contain an exclusivity provision. The surviving records suggest that the members of the Committee of Detail did not understand the final Qualifications Clauses to be exclusive, and the majority offers no reason to think that their understanding of the language was unusual for their time. The majority responds that the absence of any exclusivity provision in the Committee's draft of the Senate Qualifications Clause merely reflected the fact that "senators, unlike Representatives, would not be chosen by popular election." Ante, at 1861, n. 27. I am perfectly prepared to accept this ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 156 http://web2.westlaw.comlprintlprintstream. aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 63 of 84 115 S.Ct. 1842 Page 62 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) explanation: The drafter(s) may well have thought that state legislatures should be prohibited from constricting the people's choices for the House of Representatives, but that no exclusivity provision was necessary on the Senate side because state legislatures would already have unfettered control over the appointment of Senators. To accept this explanation, however, is to acknowledge that the exclusivity provision in the Committee's draft of the House Qualifications Clause was not thought to be mere surplusage. It is also to acknowledge that the Senate Qualifications Clause in the Committee's draft -"the qualification of a senator shall be the age of 25 years at least: citizenship in the united states: and property to the amount of [blank space]," 2 Farrand 141-did not carry any implicit connotation of exclusivity. In short, the majority's own **1896 explanation for the difference between the two Qualifications Clauses in the Committee's draft is fundamentally at odds with the expressio unius argument on which the majority rests its holding. 2 Unable to glean from the Philadelphia Convention any direct evidence that helps its position, the majority seeks signs of the Framers' unstated intent in the Framers' comments about four other constitutional provisions. See ante, at 1857-1859 *889 (citing Art. I, § 2, cl. 1; § 4, cl. 1; § 5, cl. 1; and § 6, cl. 1). The majority infers from these provisions that the Framers wanted "to minimize the possibility of state interference with federal elections." Ante, at 1857. But even if the majority's reading of its evidence were correct, the most that one could infer is that the Framers did not want state legislatures to be able to prescribe qualifications that would narrow the people's choices. See supra, at 1893-1896. However wary the Framers might have been of permitting state legislatures to exercise such power, there is absolutely no reason to believe that the Framers feared letting the people themselves exercise this power. Cf. The Federalist No. 52, at 326 (Madison) ("It cannot be feared that the people of the States will alter this [electoral -qualification] part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution'). In any event, none of the provisions cited by the majority is inconsistent with state power to add qualifications for congressional office. First, the majority cites the constitutional requirement that congressional salaries be "ascertained by Law, and paid out of the Treasury of the United States." Art. 1, § 6, cl. 1. Like the Qualifications Clauses themselves, however, the salary provision can be seen as simply another means of protecting the competence of the National Legislature. As reflected in the majority's own evidence, see ante, at 1857-1858; see also 1 Farrand 373 (remarks of James Madison), one of the recurring themes of the debate over this provision was that if congressional compensation were left up to the States, parsimonious States might reduce salaries so low that only incapable people would be willing to serve in Congress. As the majority stresses, some delegates to the Philadelphia Convention did argue that leaving congressional compensation up to the various States would give Members of Congress "an improper dependence" upon the States. Id., at 216 (remarks of James Madison); ante, at 1857-1858. These *890 delegates presumably did not want state legislatures to be able to tell the members of Congress from their State, "Vote against Bill A or we will slash your salary"; such a power would approximate a power of recall, which the Framers denied to the States when they specified the terms of Members of Congress. The Framers may well have thought that state power over salary, like state power to recall, would be inconsistent with the notion that Congress was a national legislature once it assembled. But state power over initial eligibility requirements does not raise the same concerns: It was perfectly coherent for the Framers to leave selection matters to the state level while providing for Members of Congress to draw a federal salary once they took office. Thus, the Compensation Clause seems wholly irrelevant; contrary to the majority's suggestion, see ante, at 1859, n. 21, it does not address elections at all. Second, the majority gives passing mention to the Elector -Qualifications Clause of Article I, § 2, m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 15'7 hnp:Hweb2.westlaw.com/printlprintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/ 14/2007 Page 64 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) which specifies that in each State, the voters in House elections "shall have the qualifications requisite for Electors of the most numerous Branch of the State Legislature." But the records of the Philadelphia Convention provide no evidence for the majority's assertion that the purpose of this Clause was "to prevent discrimination against federal electors." See ante, at 185720 *891 In fact, the Clause may simply **1897 have been a natural concomitant of one of the Framers' most famous decisions. At the Convention, there was considerable debate about whether Members of the House of Representatives should be selected by the state legislatures or directly by the voters of each State. Taken as a whole, the first Clause of Article L § 2-including the elector -qualifications provision -implements the Framers' decision. It specifies that the Representatives from each State are to be chosen by the State's voters (that is, the people eligible to participate in elections for the most numerous branch of the state legislature). FN20. The majority inaccurately reports James Madison's explanation of the Elector -Qualifications Clause in The Federalist No. 52. Madison neither mentioned nor addressed the consequences of "allowing States to differentiate between the qualifications for state and federal electors" See ante, at 1957. Instead, he addressed the problems that would have arisen if the Constitution had assigned control over the qualifications of voters in House elections to the state legislatures rather than to the people of each State. It was such an arrangement that, in Madison's view, "would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone." The Federalist No. 52, at 326; cf. ante, at 1857. The Elector -Qualifications Clause avoided this problem because the various state constitutions controlled who could vote in elections for the most numerous branch of the state legislature, and no state government could alter these requirements Page 63 unless the people of the State (through the state constitution) decided to let it do so. See The Federalist No. 52, at 326. Though one obviously could uphold the action of the people of Arkansas without reaching this issue, Madison's comments should not be read to suggest that the EIector-Qualifications Clause bars the people of a State from delegating their control over voter qualifications to the state legislature. The Clause itself refutes this reading; if a state constitution permits the state legislature to set voter qualifications, and if eligibility for the franchise in the State therefore turns on statutory rather than constitutional law, federal electors in the State still must meet the same qualifications as electors for the most numerous branch of the state legislature. Madison could not possibly have disagreed with this understanding of the Clause. Instead, he was simply explaining why, when it came to voter qualifications for House elections, the Framers had not followed the model of Article I, § 3, cl. 1, and vested ultimate control with the state legislatures (regardless of what the people of a State might provide in their state constitutions). Third, the majority emphasizes that under Article I, § 5, "[e]ach House [of Congress] shall be the Judge of the Elections, Returns and Qualifications of its own Members." See ante, at 1855, 1858-1859, 1864. There was no recorded discussion of this provision in the Philadelphia Convention, and it appears simply to adopt the practice of England's Parliament. See n. 18, supra. According to the majority, however, § 5 implies *892 that the Framers could not have intended state law ever to " provide the standard for judging a Member's eligibility." Ante, at 1859. My conclusion that States may prescribe eligibility requirements for their Members of Congress does not necessarily mean that the term "Qualifications," as used in Article I, § 5, includes such state -imposed requirements. One surely could read the term simply to refer back to the requirements m 2007 ThomsonfWest. No Claim to Orig. U.S. Govt. Works. :1,58 http://web2.westlaw.com/printlprintstream. aspx?sv=Split&rlti= l &prft=HTMLE&n=18&f... 3/14/2007 Page 65 of 84 115 S.Ct. 1842 Page 64 514 U.S. 779,115 S.Ct. 1842, 131 I_ Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) that the framers had just listed in the Qualifications Clauses, and not to encompass whatever requirements States might add on their own. See Nixon v. United Stares, 506 U.S. 224. 237, 113 S.CL 732, 740, 122 L.Ed.2d 1 (1993) (dictum) (asserting that the context of § 5 demonstrates that " the word `(q]ualifications' ... was of a precise, limited nature" and referred only to the qualifications previously "set forth in Art. I, § 2"). The Framers had deemed the constitutional qualifications essential to protect the competence of Congress, and hence the national interest. It is quite plausible that the Framers would have wanted each House to make sure that its Members possessed these qualifications, but would have left it to the States to enforce whatever qualifications were imposed at the state level to protect state interests. But even if this understanding of § 5 is incorrect, I see nothing odd in the notion that a House of Congress might have to consider state law in judging the "Qualifications" of its Members. In fact, § 5 itself refutes the majority's argument, Because it generally is state law that determines what is necessary to win an election and whether any particular ballot is valid, each House of Congress clearly must look to state law in judging the "Elections" and "Returns" of its Members. It would hardly be strange if each House had to do precisely the same thing in judging "Qualifications." Indeed, even on the majority's understanding of the Constitution, at the time of the Framing all " Qualifications" questions that turned on issues of citizenship **1898 would have been governed by state law. Sec supra, at 1887-1888. *893 More generally, there is no basis for the majority's assertion that the Framers would not have charged "federal tribunals" with the task of " judging ... questions concerning rights which depend on state law." See wife, at 1859. Cases involving questions of federal law hardly exhaust the categories of cases that the Framers authorized the federal courts to decide. See Art. III, § 2, cl. 1. The founding generation, moreover, seemed to assign relatively little importance to the constitutional grant of jurisdiction over "all Cases ... arising under this Constitution, the Laws of the United States, and Treaties made ... under their Authority." Net. The First Congress never even implemented this jurisdictional grant at the trial level; it was not until 1875 that Congress " revolutionized the concept of the federal judiciary" by giving federal courts broad jurisdiction over suits arising under federal law. See P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 962 (3d ed. 1988). By contrast, the founding generation thought it important to implement immediately the constitutional grant of diversity jurisdiction, in which the rules of decision generally come entirely from state law. See Judiciary Act of 1789, 1 Stat. 73, 78, 92; Erie R. Co. v. Tompkins, 304 U.S. 64, 77-80, 58 S.Ct. 817, 822-823, 82 L.Ed. 1 188 (1938). The Fourth and final provision relied upon by the majority is the Clause giving Congress the power to override state regulations of "[t]he Times, Places and Manner of holding [congressional] Elections." Art. I, § 4, cl. 1. From the fact that the Framers gave Congress the power to "make or alter' these state rules of election procedure, the majority infers that the Framers would also have wanted Congress to enjoy override authority with respect to any matters of substance that were left to the States. See ogre, at 1858. As Congress enjoys no "make or alter" powers in this area, the majority concludes that the Framers must not have thought that state legislatures would be able to enact qualifications laws. *894 But the Framers provided for congressional override only where dley trusted Congress more than the States. Evert respondents acknowledge that "the primary reason" for the "make or alter" power was to enable Congress to ensure that States held elections in the first place, See Tr. of Oral Arg. 51; see also supra, at 1883. and n. 10. The Framers did trust Congress more than the States when it came to preserving the Federal Government's own existence; to advance this interest, they had to give Congress the capacity to prescribe both the date and the mechanics of congressional elections. As discussed above, however, the Framers trusted the States more than Congress when it came to setting qualifications for Members of Congress. See supra, at 1990, © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 159 http://web2.westlaw.com/print/printstream. aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 66 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) Indeed, the majority itself accepts this proposition. See ante, at 1869 (acknowledging that the Framers were "particularly concerned" about congressional power to set qualifications). To judge from comments made at the state ratifying conventions, Congress' "make or alter" power was designed to serve a coordination function in addition to ensuring that the States had at least rudimentary election laws. For instance, George Nicholas argued at the Virginia Convention that if regulation of the time of congressional elections had been left exclusively to the States, "there might have been as many times of choosing as there are States," and "such intervals might elapse between the first and last election, as to prevent there being a sufficient number to form a House." 9 Documentary History of the Ratification of the Constitution 920 (J. Kaminski and G. Saladino eds. 1990). For this reason too, if the National Legislature lacked the "make or alter" power, "it might happen that there should be no Congress [,J ... and this might happen at a time when the most urgent business rendered their session necessary." Ibid.; cf. 2 Elliot 535 (remarks of Thomas McKean at the Pennsylvania ratifying convention) (defending § 4 on the ground that congressional elections should be "held on the same day throughout the United States, to prevent corruption or *895 undue influence"). Again, however, the desire to coordinate state election **1899 procedures did not require giving Congress power over qualifications laws. The structure of the Constitution also undermines the majority's suggestion that it would have been bizarre for the Framers to give Congress supervisory authority over state time, place, and manner regulations but not over state qualifications laws. Although the Constitution does set forth a few nationwide disqualifications for the office of Presidential elector, see Art. II, § 1, cl. 2 ("no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector"), no one contends that these disqualifications implicitly prohibit the States from adding any other eligibility requirements; instead, Article II leaves the States free to establish qualifications for their delegates to Page 65 the electoral college. See supra, at 1882-1883. Nothing in the Constitution, moreover, gives Congress any say over the additional eligibility requirements that the people of the States or their state legislatures may choose to set. Yet under Article II, "[t]he Congress may determine the Time of chusing the Electors...." Art. II, § 1, cl. 4. The majority thus creates an unwarranted divergence between Article I's provisions for the selection of Members of Congress and Article U's provisions for the selection of members of the electoral college. Properly understood, the treatment of congressional elections in Article I parallels the treatment of Presidential elections in Article II. Under Article I as under Article II, the States and the people of the States do enjoy the reserved power to establish substantive eligibility requirements for candidates, and Congress has no power to override these requirements. But just as Article 11 authorizes Congress to prescribe when the States must select their Presidential electors, so Article I gives Congress the ultimate authority over the times, places, and manner of holding congressional elections. *896 The majority's only response is that my reading of the Constitution would permit States to use their qualification -setting power to achieve the very result that Congress' "make or alter" power was designed to avoid. According to the majority, States could set qualifications so high that no candidate could meet them, and Congress would be powerless to do anything about it. Ante, at 1858-1859. Even if the majority were correct that Congress could not nullify impossible qualifications, however, the Constitution itself proscribes such state laws. The majority surely would concede that under the Framers' Constitution, each state legislature had an affirmative duty to appoint two people to the Senate. See Art. I, § 3, cl. 1 ("The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof ..." (emphasis added)); cf. Art. I, § 3, cl. 2 ("if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 160 http://web2.wesilaw.com/printlprintstream.aspx?sv=Split&rlti=l&prft=HTMLE&n=18&f... 3/14/2007 Page 67 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies "). In exactly the same way that § 3 requires the States to send people to the Senate, § 2 also requires the States to send people to the House. See Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ..." ); cf. Art. I, § 2, cl. 4 ("When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies"). The majority apparently is concerned that (on its reading of the "make or alter" power) Congress would not be able to enforce the constitutional proscription on impossible qualifications; enforcement would instead be relegated to the courts, the Executive Branch, or the political process. But this concern is equally applicable whether one adopts my view of the Qualifications Clauses or the majority's view. Both the majority and I agree that it is unconstitutional for *897 States to establish impossible qualifications for congressional office. Both the majority and I also agree that it is theoretically conceivable that a State might defy this proscription by erecting an impossible qualification. Whether Congress may use its "make or alter' power to override such laws turns entirely on how one reads the "make or alter" power; it has nothing to do with **1900 whether one believes that the Qualifications Clauses are exclusive. It would not necessarily be unusual if the Framers had decided against using Congress' "make or alter" power to guard against state laws that disqualify everyone from service in the House. After all, although this power extended to the times and manner of selecting Senators as well as Representatives, it did not authorize Congress to pick the Senators from a State whose legislature defied its constitutional obligations and refused to appoint anyone. This does not mean that the States had no duty to appoint Senators, or that the States retained the power to destroy the Federal Government by the simple expedient of refusing to meet this duty. It merely means that the Framers did not place the remedy with Congress.FN'-i Page 66 FN21. Likewise, the Constitution requires the States to appoint Presidential electors, Art. II, § 1, cl. 2, but it does not provide for any congressional override if the States refuse to do so (or if the States set impossibly high qualifications and then announce that no one meets them). But the flaws in the majority's argument go deeper. Contrary to the majority's basic premise, Congress can nullify state laws that establish impossible qualifications. If a State actually holds an election and only afterwards purports to disqualify the winner for failure to meet an impossible condition, Congress certainly would not be bound by the purported disqualification. It is up to each House of Congress to judge the "[q]ualifications" of its Members for itself. See Art. I, § 5, cl. 1. Even if this task includes the responsibility of judging qualifications imposed by state law, see supra, at 1897-1898, Congress obviously would have not only *898 the power but the duty to treat the unconstitutional state law as a nullity. Thus, Congress could provide the appropriate remedy for the State's defiance, simply by seating the winner of the election. It follows that the situation feared by the majority would arise only if the State refused to hold an election in the first place, on the ground that no candidate could meet the impossible qualification. But Congress unquestionably ,has the power to override such a refusal. Under the plain terms of § 4, Congress can make a regulation providing for the State to hold a congressional election at a particular time and place, and in a particular manner.FN22 FN22. Even if there is anything left of the majority's argument on this point, it would still have no bearing on whether the Framers intended to preclude the people bf each State from supplementing the constitutional qualifications. Just as the Framers had no fear that the people of a State would destroy congressional elections by entirely disenfranchising themselves, see The Federalist No. 52, at 326, so the Framers surely had no fear that Q 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. I I http://web2.westlaw.com/print/printstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 68 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) the people of the States would destroy congressional elections by entirely disqualifying all candidates. In discussing the ratification period, the majority stresses two principal data. One of these pieces of evidence is no evidence at all -literally. The majority devotes considerable space to the fact that the recorded ratification debates do not contain any affirmative statement that the States can supplement the constitutional qualifications. See ante, at 1859-1860. For the majority, this void is " compelling" evidence that "unquestionably reflects the Framers' common understanding that States lacked that power." Ante, at 1859, 1860. The majority reasons that delegates at several of the ratifying conventions attacked the Constitution for failing to require Members of Congress to rotate out Of office.FN23 If *899 supporters of **1901 ratification had believed that the individual States could supplement the constitutional qualifications, the majority argues, they would have blunted these attacks by pointing out that rotation requirements could still be added State by State. See ante, at 1860. FN23. As the majority notes, see ante, at 1871, and 1859, n. 22, the Philadelphia Convention had dropped without discussion a portion of the original Randolph Resolutions calling for Members of the House of Representatives "to be incapable of re-election for the space of (blank space] after the expiration of their term of service." 1 Farrand 20. This provision, which at a minimum would have barred all Members of the House from serving consecutive terms, was abandoned without objection when the Convention voted to require House Members to stand for election every three years. See id., at 214-217; see also id, at 362 (opting for 2-year terms instead). Subsequently, indeed, some members of the Convention appeared to be unaware that a rotation requirement had ever been proposed. See Page 67 2 id, at 120 (remarks of Gouverneur Moms). The majority properly does not cite the omission of this nationwide rotation requirement as evidence that the Framers meant to preclude individual States from adopting rotation requirements of their own. Just as individual States could extend the vote to women before the adoption of the Nineteenth Amendment, could prohibit poll taxes before the adoption of the Twenty-fourth Amendment, and could lower the voting age before the adoption of the Twenty-sixth Amendment, so the Framers' decision not to impose a nationwide limit on congressional terms did not itself bar States from adopting limits of their own. See, e.g., Ga. Const. of 1877, § 2-602 (adopted Aug. 3, 1943) (reducing voting age to 18 nearly three decades before the Twenty-sixth Amendment was proposed); Harman v. Forssenirts, 380 U.S. 528, 539, 85 S.Ct. 1177, 1184, 14 L.Ed.2d 50 (1965) (noting that by the time the Twenty-fourth Amendment was proposed, `only five States retained the poll tax as a voting requirement"); Congressional Research Service, The Constitution of the United States of America: Analysis and Interpretation 1571 (1973) (reporting that 11 States had adopted women's suffrage by the time the Nineteenth Amendment was proposed). Cf. ante, at 1871, and n. 50. But the majority's argument cuts both ways. The recorded ratification debates also contain no affirmative statement that the States cannot supplement the constitutional qualifications. While ratification was being debated, the existing rule in America was that the States could prescribe eligibility requirements for their delegates to Congress, see n. 3, supra, even though the Articles of Confederation gave Congress itself no power to impose such qualifications. If *900 the Federal Constitution had been understood to deprive the States of this significant power, one might well have expected its opponents to seize on this point in arguing against ratification. m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. IG 2 http://web2.westlaw.com/print/printstream.aspx?sv=Split&rlti=l&prft=HTMLE&n=18&f... 3/14/2007 Page 69 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.F.d.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct 1842) The fact is that arguments based on the absence of recorded debate at the ratification conventions are suspect, because the surviving records of those debates are fragmentary. We have no records at all of the debates in several of the conventions, 3 Documentary History of the Ratification of the Constitution 7 (M. Jensen ed. 1978), and only spotty records from most of the others, see ibid.; 1 id., at 34-35; 4 Elliot 342; Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Texas L.Rev. 1, 21-23 (1986). If one concedes that the absence of relevant records from the ratification debates is not strong evidence for either side, then the majority's only significant piece of evidence from the ratification period is The Federalist No. 52. Contrary to the majority's assertion, however, this essay simply does not talk about "the lack of state control over the qualifications of the elected," whether "explicitly" or otherwise. See ante, at 1856. It is true that The Federalist No. 52 contrasts the Constitution's treatment of the qualifications of voters in elections for the House of Representatives with its treatment of the qualifications of the Representatives themselves. As Madison noted, the Framers did not specify any uniform qualifications for the franchise in the Constitution; instead, they simply incorporated each State's rules about eligibility to vote in elections for the most numerous branch of the state legislature. By contrast, Madison continued, the Framers chose to impose some particular qualifications that all Members of the House had to satisfy. But while Madison did say that the qualifications of the elected were "more susceptible of uniformity" than the qualifications of electors, The Federalist No. 52, at 326, he did not say that the Constitution *901 prescribes anything but uniform minimum qualifications for congressmen. That, after all, is more than it does for congressional electors. Nor do I see any reason to infer from The Federalist No. 52 that the Framers intended to deprive the States of the power to add to these minimum qualifications. Madison did note that the existing state constitutions defined the qualifications of "the elected" -a phrase that the essay used to refer to Page 68 Members of Congress -"less carefully and properly" than they defined the qualifications of voters. But Madison could not possibly have been rebuking the States for setting unduly high qualifications for their representatives in Congress, because they actually had established only the sketchiest of qualifications. At the time that Madison wrote, the various state constitutions generally provided for the state legislature to appoint the State's delegates**1902 to the Federal Congress.FN24 Four state constitutions had added a term -limits provision that tracked the one in the Articles of Confederation, FN25 and some of the constitutions also specified that people who held certain salaried offices under the United States were ineligible to represent the State in Congress TN26 But only two state constitutions had prescribed any other *902 qualifications for delegates to Congress FN'-r In this context, when Madison wrote that the state constitutions defined the qualifications of Members of Congress "less carefully and properly" than they defined the qualifications of voters, he could only have meant that the existing state qualifications did not do enough to safeguard Congress' competence: The state constitutions had not adopted the age, citizenship, and inhabitancy requirements that the Framers considered essential. Madison's comments readily explain why the Framers did not merely incorporate the state qualifications for Congress. But they do not imply that the Framers intended to withdraw from the States the power to supplement the list of qualifications contained in the Federal Constitution.FN'-s FN24. See Del. Const. of 1776, Art. 11, in 1 Thorpe 564; Md. Const. of 1776, Form of Government, Art. XXVII, in 3 Thorpe 1695; Mass. Const. of 1780, Pt. 2, Ch. IV, in 3 Thorpe 1906; N.H. Const. of 1784, Pt. H, in 4 Thorpe 2467; N.Y. Const. of 1777, Art. XXX, in 5 Thorpe 2634-2635; N.C. Const. of 1776, Form of Government, Art. XXXVII, in 5 Thorpe 2793; Pa. Const. of 1776, Frame of Government, § 11, in 5 Thorpe 3085; S.C. Const. of 1778, Art. XXII, in 6 Thorpe 3253; Va. Const. of 1776, in 7 Thorpe 3817. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 163 http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 70 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) FN25. Md. Const. of 1776, Form of Government, Art. XXVII, in 3 Thorpe 1695; N.H. Const. of 1784, Pt. II, in 4 Thorpe 2467; N.C. Const. of 1776, Art. XXXVII, in 5 Thorpe 2793; Pa. Const. of 1776, Frame of Government, § 11, in 5 Thorpe 3085. FN26, Md. Const. of 1776, Form of Government, Art. XXVII, in 3 Thorpe 1695; N.H. Const. of 1784, Pt. 11, in 4 Thorpe 2467; Pa. Const. of 1776, Frame of Government, § 11, in 5 Thorpe 3085. FN27. See Md. Const. of 1776, Art. XXVII, in 3 Thorpe 1695; N.H. Const. of 1784, Pt. II, in 4 Thorpe 2467. FN28. The majority suggests that I have overlooked Madison's observation that subject to the "reasonable limitations" spelled out in the House Qualifications Clause, the Constitution left the House's door "open to merit of every description." See ante, at 1857, n. 18; see also ante, at 1857 (quoting a similar passage from The Federalist No. 57). As discussed above, however, such statements do not advance the majority's case. See supra, at 1891-1892. Though The Federalist No. 52 did not address this question, one might wonder why the Qualifications Clauses did not simply incorporate the existing qualifications for members of the state legislatures (as opposed to delegates to Congress). Again, however, the Framers' failure to do so cannot be taken as an implicit criticism of the States for setting unduly high entrance barriers. To the contrary, the age and citizenship qualifications set out in the Federal Constitution are considerably higher than the corresponding qualifications contained in the state constitutions that were then in force. At the time, no state constitution required members of the lower house of the state legislature to be more than 21 years old, and only two required members of the upper house to be 30. See N.H. Const. of 1784, Pt. 11, in 4 Thorpe 2460; S.C. Const. of 1778, Art. XH, in 6 Thorpe 3250, Many Page 69 *903 States, moreover, permitted naturalized aliens to take seats in the state legislature within one or two years of becoming citizens. See Kettner, Development of American Citizenship, at 214-219. The majority responds that at the time of the framing, most States imposed property qualifications on members of the state legislature. See ante, at 1857, n. 18. But the fact that the Framers did not believe that a uniform minimum property requirement was necessary to protect the competence of Congress surely need not mean that the Framers intended to preclude States from setting their own property qualifications. In fact, the constitutional text supports the contrary inference. As the majority observes, see ibid., and ante, at 1865, n. 35, at the time of the framing some States also imposed religious qualifications on state legislators. The Framers evidently did not want States to impose such qualifications on federal legislators, for the Constitution specifically provides that "no religious Test shall ever be required as a Qualification to any **1903 Office or public Trust under the United States." Art. VI, cl. 3 . Both the context M" and the plain language of the Clause show that it bars the States as well as the Federal Government from imposing religious disqualifications on federal offices. But the only reason for extending the Clause to the States would be to protect Senators and Representatives from state -imposed religious qualifications; I know of no one else who holds a "public Trust under the United States" yet who might be subject to state disqualifications. If the expressio unius maxim cuts in any direction in this case, then, it undermines the majority's position: The Framers' prohibition on state -imposed religious disqualifications*904 for Members of Congress suggests that other types of state -imposed disqualifications are permissible. See Rotunda, Rethinking Term Limits for Federal Legislators in Light of the Structure of the Constitution, 73 Ore.L.Rev. 561, 574 (1994). FN29. The immediately preceding portion of the Clause requires not only "[t]he Senators and Representatives before mentioned" but also "the Members of the © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstreann.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 71 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States," to take an "Oath or Affirmation" to support the Constitution. Art. VI, cl. 3. 4 More than a century ago, this Court was asked to invalidate a Michigan election law because it called for Presidential electors to be elected on a district -by -district basis rather than being chosen by "the State" as a whole. See Art. II, § 1, cl. 2. Conceding that the Constitution might be ambiguous on this score, the Court asserted that " where there is ambiguity or doubt, or where two views may well be entertained, contemporaneous and subsequent practical construction(s) are entitled to the greatest weight," McPlierson v. Blacker, 146 U.S., at 27, 13 S.Ct., at 7. The Court then described the district -based selection processes used in 2 of the 10 States that participated in the first Presidential election in 1788, 3 of the 15 States that participated in 1792, and 5 of the 16 States that participated in 1796. Id., at 29-31, 13 S.Ct., at 8-9. Though acknowledging that in subsequent years " most of the States adopted the general ticket system, " id., at 32, 13 S.Ct., at 9, the Court nonetheless found this history "decisive" proof of the constitutionality of the district method, id., at 36, 13 S.Ct., at 11. Thus, the Court resolved its doubts in favor of the state law, "the contemporaneous practical exposition of the Constitution being too strong and obstinate to be shaken...." Id., at 27, 13 S.Ct., at 7. Here, too, state practice immediately after the ratification of the Constitution refutes the majority's suggestion that the Qualifications Clauses were commonly understood as being exclusive. Five States supplemented the constitutional disqualifications in their very first election laws, and the surviving -records suggest that the legislatures of these States considered and rejected the interpretation of the Constitution that the majority adopts today. *905 As the majority concedes, the first Virginia election law erected a property qualification for Page 70 Virginia's contingent in the Federal House of Representatives. See Virginia Election Law (Nov. 20, 1788), in 2 Doementary History of the First Federal Elections, 1788-1790, pp. 293, 294 (G. DenBoer ed. 1984) (hereinafter First Federal Elections) (restricting possible candidates to " freeholder[s]"). What is more, while the Constitution merely requires representatives to be inhabitants of their State, the legislatures of five of the seven States that divided themselves into districts for House elections FN30 added that representatives also had to be inhabitants of the district that elected them. Three of these States adopted durational residency requirements too, insisting that representatives have resided within their districts for at least **1904 a year (or, in one case, three years) before being elected.FN31 FN30. Despite the majority's emphasis on the Framers' supposed desire for uniformity in congressional elections, even the majority does not dispute that the Framers wanted to let States decide for themselves whether to use district elections in selecting Members of the House of Representatives. The Framers fully expected that in some States each Member of the House would be chosen by the people of the whole State, while in other States each Member would be directly accountable only to the people of a single district. See, e.g., 14 Papers of Thomas Jefferson 3 (J. Boyd ed. 1958) (letter from Madison to Jefferson, Oct. 8, 1788). FN31. See Georgia Election Law (Jan. 23, 1789) (restricting representatives from each district to "resident[s] of three years standing in the district"), in 2 First Federal Elections 456, 457; Maryland Election Law (Dec. 22, 1788) (simple district residency requirement), in 2 First Federal Elections 136, 138; Massachusetts Election Resolutions (Nov. 20, 1788) (same), in 1 First Federal Elections 508, 509 (M. Jensen & R. Becker eds. 1976); North Carolina Election Law (Dec. 16, 1789) (requiring the person elected from © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. I C? http://web2.westlaw.comlprintlpi intstrewn.aspx?sv=Split&rlti= l&prft=HTMLE&n=18&f... 3/14/2007 Page 72 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) each district to have been "a Resident or Inhabitant of that Division for which he is elected, during the Space or Term of one Year before, and at the Time of Election"), in 4 First Federal Elections 347; Virginia Election Law (Nov. 20, 1788) (requiring each candidate to have been "a bona fide resident for twelve months within such District"), in 2 First Federal Elections 293, 294. Upon being admitted to the Union in 1796, Tennessee also required its Members in the Federal House of Representatives to have been Tennessee residents for three years and district residents for one year before their election. Act of Apr. 20, 1796, ch. 10, in Laws of the State of Tennessee 81 (1803). *906 In an attempt to neutralize the significance of the district residency requirements, respondent Hill asserts that "there is no evidence that any state legislature focused, when it created these requirements, on the fact that it was adding to the constitutional qualifications." Brief for Respondents Bobbie E. Hill et al. 20. But this claim is simply false. In Massachusetts, for instance, the legislature charged a committee with drafting a report on election methods. The fourth article of the resulting report called for the State to be divided into eight districts that would each elect one representative, but did not require that the representatives be residents of the districts that elected them. Joint Committee Report (Nov. 4, 1788), in 1 First Federal Elections 481. When the members of the State House of Representatives discussed this report, those who proposed adding a district residency requirement were met with the claim that the Federal Constitution barred the legislature from specifying additional qualifications. See Massachusetts Centinel (Nov. 8, 1788) (reporting proceedings), in I First Federal Elections 489. After "considerable debate," the House approved the committee's version of the fourth article by a vote of 89 to 72. Ibid. But the State Senate approved a district residency amendment, 1 First Federal Elections 502, and the House then voted to retain it, id., at 504. Page 71 Although we have no record of the legislative debates over Virginia's election law, a letter written by one of the members of the House of Delegates during the relevant period indicates that in that State, too, the legislature considered the possible constitutional objection to additional disqualifications. In that letter, Edward Carrington (an opponent of the district residency requirement) expressed his view that the requirement "may exceed the powers of the Assembly," *907 but acknowledged that there was "no prospect of its being struck out" because Federalists as well as Anti -Federalists at least professed to "think it right." 2 id., at 367 (letter from Carrington to Madison, Nov. 9-10, 1788). Carrington was correct about the views of his colleagues: By a vote of 80 to 32, the House of Delegates rejected a motion to delete the added qualifications, while a similar motion in the State Senate lost by a vote of 12 to 3. Id., at 287,293 FK32 FN32. After the Virginia Legislature had enacted this bill, some of James Madison's friends suggested that he might find it harder to win election in his own district than in certain other areas of the State. They believed that if Madison won the popular vote in one of those other districts, the House of Representatives could seat him on the theory that States cannot add to the constitutional qualifications. See 11 Papers of James Madison 378-379 (R. Rutland & C. Hobson eds. 1977) (letter from Carrington to Madison, Dec. 2, 1788). Other advisers, however, warned that the people of Virginia might not share this understanding of the Constitution. As Alexander White wrote in a letter to Madison: "Some Gentlemen suppose you may be elected in other Districts, and that Congress would disregard the Act which requires Residence in a particular District. I will not undertake to decide that question, but this I know, such a determination would afford much ground of clamour, and enable the opposers of the Government to inflame the Minds of the © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 166 http://web2.westlaw.com/print/pi intstream.aspx?sv=Split&rlti=l &prft=HTN4U&n=18&f... 3/14/2007 Page 73 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) People beyond anything which has yet happened." Id., at 380 (Dec. 4, 1788). Madison himself apparently never endorsed the idea that he should test the district residency requirement. Instead, he ran from his own district (where he overcame a stiff challenge from another future President, James Monroe). **1905 The surviving records from Maryland and Georgia are less informative, but they, too, show that the legislatures of those States gave special attention to the district residency requirements that they enacted. FN33 Out of the five original *908 States that adopted district residency requirements, in fact, only in North Carolina were the records so poor that it is impossible to draw any inferences about whether the legislature gave careful attention to the implications of the requirement Fv34 FN33. The records show that Maryland's House of Delegates put the district residency requirement to a separate vote and approved it by a margin of 41 to 24. 2 First Federal Elections 129-130 (summarizing proceedings from Dec. 3, 1788). A subsequent effort to jettison the requirement lost by a vote of 39 to 28. Id., at 132-133 (summarizing proceedings from Dec. 10, 1788). Language in Maryland's second election law confirms that the state legislature knew that it was supplementing the Qualifications Clauses. The Act of December 10, 1790, stipulated that each candidate must "b[e] a resident of his district at the time of the election, and hav [e] resided therein twelve calendar months immediately before, and [be] otherwise qualified according to the constitution of the United States." 1790 Laws of Maryland, ch. XVI, art. VIII. In Georgia, too, the State House of Assembly called special attention to the district residency requirement. Shortly before Georgia held its first federal elections, the House adopted a resolution to stress that if the top votegetter in any district had not been "an actual resident of Page 72 three years standing" in that district, then " such person shall not be considered as eligible nor shall he be commissioned." 2 First Federal Elections 459 (resolution of Feb. 4, 1789). FN34. Even the experience in New York and South Carolina -the only States that opted for district elections without requiring district residency -does not support the majority's position. While the records from South Carolina are sketchy, those from New York affirmatively undermine the majority's suggestion that the Qualifications Clauses were commonly understood to be exclusive. When the topic was first broached in the State Assembly, the assemblymen defeated a district residency proposal amid comments that "to add any other qualification [to those listed in the Constitution] would be unconstitutional." 3 First Federal Elections 232 (Dec. 18, 1788). But the State Senate took a different view, adding a district residency requirement when it considered the election bill. Id, at 320. The Assembly then approved the requirement by a vote of 36 to 12, id, at 325-326 (Jan. 19, 1789), but reconsidered the requirement the following day (apparently with more assemblymen in attendance). After a sophisticated debate on the constitutional question, with some assemblymen arguing that the district residency requirement was unconstitutional and others responding that the Constitution merely erected minimum qualifications, the Assembly divided evenly over the requirement: 28 voted in favor of it and 28 voted against it. Id., at 328-335 (Jan. 20, 1789). The chairman broke the tie with a vote against the requirement. Id., at 335. Still, there clearly was no consensus in the New York Assembly. What is more, some of the votes against the district residency requirement may well have been cast by assemblymen who simply opposed the requirement on policy grounds, as an undue restriction on the people's ability to © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 167 http://web2.westlaw.conilprintlprintstream.aspx?sv=Split&rlti=l &prft=HThILE&n=18&f... 3/14/2007 Page 74 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) elect nonresidents if they wanted to do so. In any event, the New York Senate obviously considered the requirement constitutional. There is evidence that some members of the Pennsylvania Legislature considered the Qualifications Clauses to be exclusive. See 1 id., at 282-288. Of course, they also believed that § 2 of Article I -which calls for Members of the Federal House of Representatives to be "chosen ... by the People of the several States" -forbade Pennsylvania to elect its representatives by districts. See id., at 283. The legislatures of the five States that adopted district residency requirements, who had the Pennsylvania example before them, disagreed with the Pennsylvania legislators. *909 The majority asserts that "state practice with respect to residency requirements does not necessarily indicate that States believed that they had a broad power to add restrictions," because the States "may simply have viewed district residency requirements as the necessary analog to state residency requirements." Ante, at 1866, n. 41. This argument fails even on its own terms. If the States had considered district residency requirements necessary for the success of a district election system, but had agreed with the majority that the Constitution prohibited them from supplementing the constitutional Iist of qualifications, then they simply would have rejected the district system and used statewide elections. After all, the majority deems district residency requirements just as unconstitutional as other added qualifications. See ante, at 1853. The majority's argument also fails to account for the durational element of the residency requirements adopted in Georgia, North Carolina, and Virginia (and soon thereafter in Tennessee). These States obliged Congressmen not only to be district residents when elected but also to have been district residents for at least a year before then. See n. 31, supra. **1906 Finally, the majority's argument cannot explain the election schemes of Maryland and Page 73 Georgia. Though these States did divide themselves into congressional districts, they allowed every voter to vote for one candidate from each *910 district. See Georgia Election Law (Jan. 23, 1789), in 2 First Federal Elections 456, 457; Maryland Election Law (Dec. 22, 1788), in 2 First Federal Elections 136, 138. In other words, Maryland and Georgia imposed district residency requirements despite permitting every voter in the State to vote for every representative from the State. Neither of these States could possibly have seen district residency requirements as the "necessary analog" to anything; they imposed these requirements solely for their own sake. The majority nonetheless suggests that the initial election laws adopted by the States actually support its position because the States did not enact very many disqualifications. See ante, at 1866, n. 41. In this context, the majority alludes to the fact that no State imposed a religious qualification on federal legislators, even though New Hampshire continued to require state legislators to be Protestants and North Carolina imposed a similar requirement on people holding places of trust in the State's "civil department." See ante, at 1866, n. 41, and 1865, n. 35. But the majority concedes that "Article VI of the Federal Constitution ... prohibited States from imposing similar qualifications on federal legislators." Ante, at 1865, n. 35. As discussed above, the constitutional treatment of religious qualifications tends to undermine rather than support the majority's case. See supra, at 1902-1903. The majority also points out that no State required its own federal representatives to rotate out of office after serving one or more terms. Ante, at 1866. At the time of the framing, however, such requirements were increasingly disfavored on policy grounds. The advantages of incumbency were substantially fewer then than now, and turnover in office was naturally quite high. The perceived advantages of term limits were therefore smaller than they are today. But the perceived disadvantages were just as great: Term limits prevented the States or the people of the States from keeping good legislators in office, even if they wanted to do so. *911 See G. Wood, Creation of the American Republic, O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l&prft=11TN LE&n=18&f... 3/14/2007 Page 75 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct 1842) 1776-1787, p. 439 (1969). It is true that under the Articles of Confederation, four States had imposed term limits on their delegates to Congress. See ante, at 1866. But three of these provisions added nothing to the limits in the Articles themselves, see Md. Const. of 1776, Form of Government, Art. XXVII (echoing Article of Confederation V), in 3 Thorpe 1695; N.H. Const. of 1784, Pt. II (same), in 4 Thorpe 2467; N.C. Const. of 1776, Art. XXXVII (similar), in 5 Thorpe 2793, and the other one contained only a minor variation on the provision in the Articles, see Pa. Const. of 1776, Frame of Government, § 11, in 5 Thorpe 3085. Indeed, though the majority says that "many States imposed term limits on state officers," ante, at 1865-1866, it appears that at the time of the framing only Pennsylvania imposed any restriction on the reelection of members of the state legislature, and Pennsylvania deleted this restriction when it adopted a new Constitution in 1790. Compare Pa. Const. of 1776, Frame of Government, § 8, in 5 Thorpe 3084, with Pa. Const. of 1790, in 5 Thorpe 3092-3103; cf. Va. Const. of 1776, Form of Government (perhaps imposing term limits on members of the upper house of the state legislature), in 7 Thorpe 3816. It seems likely, then, that the failure of any State to impose term limits on its senators and representatives simply reflected policy -based decisions against such restrictions. The majority counters that the delegates at three state ratifying conventions -in Virginia, New York, and North Carolina -"proposed amendments that would have required rotation." Ante, at 1860; cf. ante, at 1865-1866, and n. 40. But the amendments proposed by both the North Carolina Convention and the Virginia Convention would have imposed term limits only on the President, not on Members of Congress. See 4 Elliot 245 (North Carolina) ("[N]o person shall be capable of being President of the United States for more than eight years in any term of fifteen years"); 3 id, at 660 *912 Virginia) (similar). If the majority is correct that **1907 these conventions also "voiced support for term limits for Members of Congress," see ante, at 1866,FN35 then the evidence from these conventions supports my position rather than the Page 74 majority's: the conventions deemed it necessary for the Constitution itself to impose term limits on the President (because no State could do that on its own), but they did not think it necessary for the Constitution to impose term limits on Members of Congress. This understanding at the Virginia and North Carolina conventions meshes with the election laws adopted by both States, which reflected the view that States could supplement the Qualifications Clauses. See supra, at 1903-1904, and n. 31, 1905. FN36 FN35. The majority correctly notes that each convention, in addition to proposing a list of specific "Amendments to the Constitution," proposed a "Declaration of Rights" to be appended to the Constitution. In both States, this "Declaration" contained the general exhortation that members of both the Legislative and Executive Branches "should, at fixed periods, be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections." 4 Elliot 243; 3 id., at 657-658. But both Declarations went on to state that at these elections, the previous occupants of the office in question should " be eligible or ineligible [for reelection], as the rules of the constitution of government and the laws shall direct." 4 id., at 243; 3 id, at 658. Accordingly, it is hard to describe either Declaration as a "proposed . .. constitutional amendment supporting term limits for Members of Congress." See ante, at 1866, n. 40. FN36. As for New York, the State's ratifying convention did propose amending the Federal Constitution to provide "[t]hat no person be eligible as a senator for more than six years in any term of twelve years." I Elliot 329-330. The majority finds it significant that when this suggestion fell on deaf ears, New Yorkers did not amend their State Constitution to impose this restriction on their state legislature's appointment authority. Before the © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 169 http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l &prft=HTU LE&n=18&f... 3/14/2007 Page 76 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.CL 1842) Seventeenth Amendment was adopted, however, the Federal Constitution vested the choice of Senators in the state Iegislatures rather than the people. See Art. I, § 3, cl. 1. At least without a delegation of this authority from the legislature, cfsupra, at 1890-1893, and n. 16, the people of New York may well have thought that they could no more amend the State Constitution to narrow the legislature's choices for Senator than they could amend the State Constitution to take the appointment of Senators entirely away from the legislature. It obviously would not follow that they doubted their ability to amend the State Constitution to impose constraints on their own choice of Representatives. The ratifying convention's proposal thus sheds absolutely no light on whether New Yorkers considered the Qualifications Clauses to be exclusive. *913 If the majority can draw no support from state treatment of religious qualifications and rotation requirements, we are left only with state treatment of property qualifications. It is true that nine of the State Constitutions in effect at the time of the framing required members of the lower house of the state legislature to possess some property, see ante, at 1864-1865, n. 33, and that four of these Constitutions were revised shortly after the framing but continued to impose such requirements, see ante, at 1865, and n. 35. Only one State, by contrast, established a property qualification for the Federal House of Representatives. But the fact that more States did not adopt congressional property qualifications does not mean that the Qualifications Clauses were commonly understood to be exclusive; there are a host of other explanations for the relative liberality of state election laws.FN37 And whatever**1908 the explanation, the fact remains that *914 five of the election laws enacted immediately after ratification of the Constitution imposed additional qualifications that would clearly be unconstitutional under today's holding. This history of state practice -which is every bit as strong as the history we deemed "decisive' in McPherson v. Blacker, 146 U.S., at 36, 13 S.Ct., at 11-refutes Page 75 the majority's position that the Qualifications Clauses were generally understood to include an unstated exclusivity provision. FN37. Property qualifications may simply have seemed unnecessary. For instance, it surely was far more likely that a pauper would secure one of the 202 seats in the South Carolina House of Representatives than that he would secure one of South Carolina's five seats in the United States House of Representatives. Compare S.C. Const. of 1778, Art. XIII, in 6 Thorpe 3251, with U.S. Const., Art. I, § 2, cl. 3; cf. S.C. Const. of 1790, Art. I, § 3 (providing for a 122-seat State House of Representatives), in 6 Thorpe 3258. It may be significant, then, that the one State that saw fit to enact a congressional property qualification was also the State that had the largest congressional delegation. See U.S. Const., Art. 1, § 2, cl. 3 (allocating 10 seats to Virginia). In addition, people of the day expected that " ft]he representatives of each State fin the federal House] ... will probably in all cases have been members ... of the State legislature." The Federalist No. 56, at 348 (Madison); see also n. 17, supra (quoting article by John Stevens, Jr.). Because most States had property requirements for their state legislators, there may have been little perceived need for a separate property qualification for their Members of Congress. Even States that wanted to create such a qualification, and that considered it within their constitutional authority to do so, might have been deterred by the possibility that the Federal House of Representatives would take a different view. As I have shown, there certainly was no general understanding that the Qualifications Clauses included an unstated exclusivity provision. But people of the day did consider this to be "one of the doubtful questions on which honest men may differ with the purest motives." 14 Writings of © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 170 http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l &prft=HTkALE&n=18&f.. 3/14/2007 Page 77 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) Thomas Jefferson, at 83 (letter to Joseph C. Cabell, Jan. 31, 1814); see n. 14, supra. If some States feared that the "honest men" in the House might throw out the results of an election because of a qualifications law, they might well have thought that any policy benefits of such laws were outweighed by the risk that they would temporarily be deprived of representation in Congress. Alternatively, they may simply have wanted to stay away from difficult constitutional questions. Cf. Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Thus, despite concluding that the States do enjoy the power to prescribe qualifications, Thomas Jefferson questioned whether the advantages of added qualifications were sufficient to justify enacting a law whose constitutionality could be disputed. See 14 Writings of Thomas Jefferson, at 84. 5 The same is true of the final category of historical evidence discussed by the majority: controversies in the House and the Senate over seating candidates who were duly elected but who arguably failed to satisfy qualifications imposed by state law. *915 As the majority concedes, " `congressional practice has been erratic' " and is of limited relevance anyway. Ante, at 1862-1863 (quoting Powell v. McCormack, 395 U.S., at 545, 89 S.Ct., at 1976). Actions taken by a single House of Congress in 1887 or in 1964 shed little light on the original understanding of the Constitution. Presumably for that reason, the majority puts its chief emphasis on the 1807 debate in the House of Representatives about whether to seat Maryland's William McCreery. See ante, at 1861-1862. 1 agree with the majority that this debate might lend some support to the majority's position if it had transpired as reported in Powell v. McCormack. See ante, at 1861-1862. -But the Courts discussion -both in Powell and today -is misleading. A Maryland statute dating from 1802 had created a Page 76 district entitled to send two representatives to the House, one of whom had to be a resident of Baltimore County and the other of whom had to be a resident of Baltimore City. McCreery was elected to the Ninth Congress as a resident of Baltimore City. After his reelection to the Tenth Congress, however, his qualifications were challenged on the ground that because he divided his time between his summer estate in Baltimore County and his residence in Washington, D.C., he was no longer a resident of Baltimore City at all. As the majority notes, a report of the House Committee of Elections recommended that McCreery be seated on the ground that state legislatures have no authority to add to the qualifications set forth in the Constitution. See 17 Annals of Cong. 871 (1807); ante, at 1861. But the committee's submission of this initial report sparked a heated debate that spanned four days, with many speeches on both sides of the issue. See 17 Annals of Cong. 871-919, 927-947 (reporting proceedings from Nov. 12, 13, 16, and 18, 1807). Finally, a large majority of the House voted to recommit the report to the Committee of Elections. Id., at 950 (Nov. 19, 1807). The committee thereupon deleted all references to the *916 constitutional issue and issued a revised report that focused entirely on the factual question whether McCreery satisfied the state residency requirement. Id., at 1059-1061 (Dec. 7, 1807). After receiving the new report, the House seated McCreery with a resolution simply saying: "Resolved, That William McCreery is entitled to his seat in this House." Id., at 1237 (Dec. 24, 1807). By overwhelming majorities, the House rejected both a proposal to specify that McCreery possessed "the qualifications required by the law of Maryland," ibid, and a proposal to declare only that he was "duly qualified, agreeably to the constitution of the United States," id, at 1231. Far from supporting**1909 the majority's position, the McCreery episode merely demonstrates that the loth House of Representatives was deeply divided over whether state legislatures may add to the qualifications set forth in the Constitution.FW38 FN38. Though obliquely acknowledging 0 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 171 http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007 Page 78 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.CL 1842) this fact, the majority thinks it relevant that some subsequent commentators have mistakenly accepted the gloss put on the McCreery case by two editors in 1834. See ante, at 1861-1862 (citing treatises, each of which relies upon Cases of Contested Elections in Congress (M. Clarke & D. Hall eds. 1834)). But surely we need not accept an inaccurate view of history merely because it has appeared in print. The majority also cites Thomas Jefferson's hazy recollection of the McCreery case, see ante, at 1861-1862, without acknowledging Jefferson's conclusion that the States were free to supplement the Qualifications Clauses. See supra, at 1888-1889. The majority needs more than that. The prohibition that today's majority enforces is found nowhere in the text of the Qualifications Clauses. In the absence of evidence that the Clauses nonetheless were generally understood at the time of the framing to imply such a prohibition, we may not use the Clauses to invalidate the decisions of a State or its people. III It is radical enough for the majority to hold that the Constitution implicitly precludes the people of the States from prescribing any eligibility requirements for the congressional*917 candidates who seek their votes. This holding, after all, does not stop with negating the term limits that many States have seen fit to impose on their Senators and Representatives. FN39 Today's decision also means that no State may disqualify congressional candidates whom a court has found to be mentally incompetent, see, e.g., Fla.Stat. §§ 97.041(2), 99.021(1)(a) (1991), who are currently in prison, see, e.g., I11.Comp.Stat.Ann., ch. 10, §§ 5/3-5, 5/7-10, 5/10-5 (1993 and West Supp.1995), or who have past vote -fraud convictions, see, e.g., Ga.Code Ann. §§ 21-2-2(25), 21-2-8 (1993 and Supp.1994). Likewise, after today's decision, the people of each State must leave open the possibility that they will trust someone with their vote in Congress even Page 77 though they do not trust him with a vote in the election for Congress. See, e.g., R.I.Gen.Laws § 17-14-1.2 (1988) (restricting candidacy to people " qualified to vote"). FN39. Going into the November 1994 elections, eight States had adopted "pure" term limits of one sort or another. See Colo. Const., Art. XVIII, § 9a; Mich. Const., Art. II, § 10; Mo. Const., Art. III, § 45(a); Mont. Const., Art. IV, § 8; Ohio Const., Art. V, § 8; Ore. Const., Art. 11, § 20; S.D. Const., Art. III, § 32; Utah Code Ann. § 20A-10-301. Eight other States had enacted "ballot access" provisions triggered by long-term incumbency or multiple prior terms in Congress. See Ariz. Const., Art. VII, § 18; Ark. Const., Arndt. 73, § 3; Calif.Elec.Code Ann. § 25003 (West Supp.1994); Fla. Const., Art. VI, §§ 4(b)(5), (6); N.D.Cent.Code § 16.1-01-13.1 (Supp.1993); Okla. Const., Art. H, § 12A; Wash.Rev.Code §§ 29.68.015, 29.68.016 (1994); Wyo.Stat. § 22-5-104 (Supp.1994). In the 1994 elections, six more States -Alaska, Idaho, Maine, Massachusetts, Nebraska, and Nevada -enacted term -limit or ballot -access measures, bringing to 22 the total number of States with such provisions. See Pear, The 1994 Elections, N.Y. Times, Nov. 10, 1994, p. B7, col. 4. In 21 of these States, the measures have been enacted by direct vote of the people. In order to invalidate § 3 of Amendment 73, however, the majority must go further. The bulk of the majority's analysis -like Part 11 of my dissent -addresses the issues that would be raised if Arkansas had prescribed "genuine, unadulterated, undiluted term limits." See Rotunda, 73 Ore.L.Rev., at 570. But as the parties have agreed, Amendment 73 does not actually create this kind of disqualification. See *918 Tr. of Oral Arg. 53-54; cf. ante, at 1867. It does not say that covered candidates may not serve any more terms in Congress if reelected, and it does not indirectly achieve the same result by barring those candidates m 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1- 72 http://web2.westlaw.com/print/printstream.aspx?sv=Split&rlti=l &prft=HTNME&n=18&f... 3/14/2007 Page 79 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.CL 1842) from seeking reelection. It says only that if they are to win reelection, they must do so by write-in votes. One might think that this is a distinction without a difference. As the majority notes, "[t]he uncontested data submitted to the Arkansas Supreme Court" show that write-in candidates have won only six congressional elections in this century. Ante, at 1868, n. 43. But while the data's accuracy is indeed "uncontested," petitioners filed an equally **1910 uncontested affidavit challenging the data's relevance. As political science professor James S. Fay swore to the Arkansas Supreme Court, "[m]ost write-in candidacies in the past have been waged by fringe candidates, with little public support and extremely low name identification." App. 201. To the best of Professor Fay's knowledge, in modern times only two incumbent Congressmen have ever sought reelection as write-in candidates. One of them was Dale Alford of Arkansas, who had first entered the House of Representatives by winning 51% of the vote as a write-in candidate in 1958; Alford then waged a write-in campaign for reelection in 1960, winning a landslide 83% of the vote against an opponent who enjoyed a place on the ballot. Id., at 201-202. The other incumbent write-in candidate was Philip J. Philbin of Massachusetts, who -despite losing his party primary and thus his spot on the ballot -won 27% of the vote in his unsuccessful write-in candidacy. See id., at 203. According to Professor Fay, these results -coupled with other examples of successful write-in campaigns, such as Ross Perot's victory in North Dakota's 1992 Democratic Presidential primary -"demonstrate that when a write-in candidate is well-known and well -funded, it is quite possible for him or her to win an election." Ibid. *919 The majority responds that whether "the Arkansas amendment has the likely effect of creating a qualification" is "simply irrelevant to our holding today." Ante, at 1871. But the majority -which, after all, bases its holding on the asserted exclusivity of the Qualifications Clauses -never adequately explains how it can take this position and still reach its conclusion. One possible explanation for why the actual effect Page 78 of the Arkansas amendment might be irrelevant is that the Arkansas Supreme Court has already issued a binding determination of fact on this point. Thus, the majority notes that "the state court" has advised us that "there is nothing more than a faint glimmer of possibility that the excluded candidate will win." Ante, at 1868. But the majority is referring to a mere plurality opinion, signed by only three of the seven justices who decided the case below. One of the two justices who concurred in the plurality's holding that Amendment 73 violates the Qualifications Clauses did write that "as a practical matter, the amendment would place term limits on service in the Congress," but he immediately followed this comment with the concession that write-in candidacies are not entirely hopeless; his point was simply that "as a practical matter, write-in candidates are at a distinct disadvantage." 316 Ark., at 276, 872 S.W.2d, at 364 (Dudley, J., concurring in part and dissenting in part). As a result, the majority may rely upon the state court only for the proposition that Amendment 73 makes the specified candidates "distinct[ly]" worse off than they would be in its absence -an unassailable proposition that petitioners have conceded. In the current posture of these cases, indeed, it would have been extremely irregular for the Arkansas Supreme Court to have gone any further. Disputed questions of fact, in Arkansas as elsewhere, generally are resolved at trial rather than on appeal from the entry of summary judgment. See *920 Ark.Rule Civ.Proc. 56.FN40 Accordingly, the majority explicitly disclaims any reliance on **1911 the state court's purported finding about the effect of Amendment 73.. See ante, at 1868, n. 44. FN40. Even if one were inclined to believe that the Arkansas Supreme Court had departed from the usual practice and had purported to make a binding determination on a disputed issue of fact, we would not be foreclosed from examining the basis for that determination. To be sure, on direct review of a state court's judgment, we will not "conduct a more searching review of findings made in state trial court than we © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 173 http://web2.westlaw.com/print/printstream.aspx?sv=Split&rlti=l&prft-ETNUL.E&n=i 8&f... 3/14/2007 Page 80 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct- 1842) conduct with respect to federal district court findings." Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 1871, 114 L.Ed.2d 395 (1991) (plurality opinion). But that is only to say that we will review state -court findings under the " clear error" standard. Ibid.; accord, id., at 372, 111 S.Ct., at 1873 (O'CONNOR, J., concurring in judgment); cf. id, at 379, 111 S.Ct., at 1877 (STEVENS, J., dissenting) (identifying no standard of review, but arguing that the state courts decision should be reversed because its underlying factual findings were erroneous). In certain areas, indeed, this Court apparently gives quite little deference to the initial factfinder, but rather "exercise[s] its own independent judgment" about the factual conclusions that should be drawn from the record. See Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 501, and n. 17, 104 S.Ct. 1949, 1959, and n. 17, 80 L.Ed.2d 502 (1984) (STEVENS, J.). Instead, the majority emphasizes another purported conclusion of the Arkansas Supreme Court. As the majority notes, the plurality below asserted that " [t]he intent" of Amendment 73 was "to disqualify congressional incumbents from further service." 316 Ark., at 266, 872 S.W.2d, at 357. According to the majority, "[w]e must, of course, accept the state court's view of the purpose of its own law: We are thus authoritatively informed that the sole purpose of § 3 of Amendment 73 was to attempt to achieve a result that is forbidden by the Federal Constitution." Ante, at 1867. I am not sure why the intent behind a law should affect our analysis under the Qualifications Clauses. If a law does not in fact add to the constitutional qualifications, the mistaken expectations of the people who enacted it would not seem to affect whether it violates the alleged exclusivity of those Clauses. But in any event, the majority is wrong about what "the state court" has told us. Even the plurality *921 below did not flatly assert that the desire to "disqualify" congressional incumbents was the sole purpose behind § 3 of Amendment 73. Page 79 More important, neither of the justices who concurred in the plurality's holding said anything at all about the intent behind Amendment 73. As a result, we cannot attribute any findings on this issue to the Arkansas Supreme Court. The majority suggests that this does not matter, because Amendment 73 itself says that it has the purpose of "evading the requirements of the Qualifications Clauses." See ante, at 1868 (referring to the "avowed purpose" of Amendment 73). The majority bases this assertion on the amendment's preamble, which speaks of "limit[ing] the terms of elected officials." See ante, at 1868. But this statement may be referring only to §§ 1 and 2 of Amendment 73, which impose true term limits on state officeholders. Even if the statement refers to § 3 as well, it may simply reflect the limiting effects that the drafters of the preamble expected to flow from what they perceived as the restoration of electoral competition to congressional races. See infra, at 1912. In any event, inquiries into legislative intent are even more difficult than usual when the legislative body whose unified intent must be determined consists of 825,162 Arkansas voters. The majority nonetheless thinks it clear that the goal of § 3 is "to prevent the election of incumbents." See ante, at 1867-1868, 1871. In reaching this conclusion at the summary judgment stage, however, the majority has given short shrift to petitioners' contrary claim. Petitioners do not deny that § 3 of Amendment 73 intentionally handicaps a class of candidates, in the sense that it decreases their pre-existing electoral chances. But petitioners do deny that § 3 is intended to (or will in fact) " prevent" the covered candidates from winning reelection, or "disqualify" them from further service. One of petitioners' central arguments is that congressionally conferred advantages have artificially inflated the pre-existing electoral chances of the covered candidates, and *922 that Amendment 73 is merely designed to level the playing field on which challengers compete with them. To understand this argument requires some background. Current federal law (enacted, of course, by congressional incumbents) confers O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1'7-4 http://web2.westlaw.comlprint/printstream.aspx?sv=Split&rlti=l &prft=HTNlU&n=18&f... 3/14/2007 Page 81 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct. 1842) numerous advantages on incumbents, and these advantages are widely thought to make it " significantly more difficult" for challengers to defeat them. Cf. ante, at 1868. For instance, federal law gives incumbents enormous advantages in building name recognition and good will in their home districts. See, e.g., 39 U.S.C. § 3210 (permitting Members of Congress to send "franked" mail free of charge); 2 U.S.C. §§ 61-1, 72a, 332 (permitting Members to have sizable taxpayer -funded staffs); 2 U.S.C. § 123b (establishing the House Recording Studio and the Senate Recording and Photographic Studios) FN41 At the same time **1912 that incumbent Members of Congress enjoy these in -kind benefits, Congress imposes spending and contribution limits in congressional campaigns that "can prevent challengers from spending more ... to overcome their disadvantage in name recognition." App. to Brief for State of Washington as Amicus Curiae A-4 (statement of former 10-term Representative William E. Frenzel, referring to 2 U.S.C. § 441a). Many observers believe that the campaign -finance laws also give incumbents an "enormous fund-raising edge" over their challengers by giving a large financing role to entities with incentives to curry favor with incumbents. Wertheimer & Manes, Campaign Finance Reform: A Key to Restoring the Health of Our Democracy, 94 Colum.L.Rev. 1126, 1133 (1994). In *923 addition, the internal rules of Congress put a substantial premium on seniority, with the result that each Member's already plentiful opportunities to distribute benefits to his constituents increase with the length of his tenure. In this manner, Congress effectively "fines" the electorate for voting against incumbents. Hills, 53 U.Pitt.L.Rev., at 144-145. FN41. Former Representative William E. Frenzel describes the House Recording Studio as a sophisticated operation used " to prepare tapes of speeches and messages to voters." Frenzel explains: "Taxpayers pay for the facilities, the personnel that run them, the production costs, and the costs of distributing, by mail or otherwise, the tapes that members supply (from their Page 80 taxpayer -funded expense accounts). These messages are widely disseminated by broadcasters, who can use them to fill air time at no cost to themselves." App. to Brief for State of Washington as Amicus Curiae A-5 to A-6. Cynics see no accident in any of this. As former Representative Frenzel puts it: "The practice ... is for incumbents to devise institutional structures and systems that favor incumbents." App. to Brief for State of Washington as Amicus Curiae A-3. In fact, despite his service from 1971 to 1989 on the House Administration Committee (which has jurisdiction over election laws), Representative Frenzel can identify no instance in which Congress " changed election laws in such a way as to lessen the chances of re-election for incumbents, or to improve the election opportunities for challengers." Ibid. At the same time that incumbents enjoy the electoral advantages that they have conferred upon themselves, they also enjoy astonishingly high reelection rates. As Lloyd Cutler reported in 1989, "over the past thirty years a weighted average of ninety percent of all House and Senate incumbents of both parties who ran for reelection were reelected, even at times when their own party lost control of the Presidency itself." Cutler, Now is the Time for All Good Men ..., 30 Wm. & Mary L.Rev. 387, 395; see also Kristol, Term Limitations: Breaking Up the Iron Triangle, 16 Harv.J.L. & Pub.Policy 95, 97, and n. 11 (1993) (reporting that in the 100th Congress, as many Representatives died as were defeated at the polls). Even in the November 1994 elections, which are widely considered to have effected the most sweeping change in Congress in recent memory, 90% of the incumbents who sought reelection to the House were successful, and nearly half of the losers were completing only, their fast terms. Reply Brief for Petitioners U.S. Term Limits, Inc., et al. 4, n. 5. Only 2 of the 26 Senate incumbents seeking reelection were defeated, see ibid, and one of *924 them had been elected for the first time in a special election only a few years earlier. The voters of Arkansas evidently believe that © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1'7S http://web2.westlaw.com/print/printstream. aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/ 14/2007 Page 82 of 84 115 S.Ct. 1842 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) incumbents would not enjoy such overwhelming success if electoral contests were truly fair -that is, if the government did not put its thumb on either side of the scale. The majority offers no reason to question the accuracy of this belief. Given this context, petitioners portray § 3 of Amendment 73 as an effort at the state level to offset the electoral advantages that congressional incumbents have conferred upon themselves at the federal level. To be sure, the offset is only rough and approximate; no one knows exactly how large an electoral benefit comes with having been a long-term Member of Congress, and no one knows exactly how large an electoral disadvantage comes from forcing a well -funded candidate with high name recognition to run a write-in campaign. But the majority does not base its holding on the premise that Arkansas has struck the wrong balance. Instead, the majority holds that the Qualifications Clauses preclude Arkansas from trying to strike any balance at all; the majority simply says that "an amendment with the avowed purpose and obvious effect of evading the requirements of the Qualifications Clauses**1913 by handicapping a class of candidates cannot stand." Ante, at 1868. Thus, the majority apparently would reach the same result even if one could demonstrate at trial that the electoral advantage conferred by Amendment 73 upon challengers precisely counterbalances the electoral advantages conferred by federal law upon long-term Members of Congress. For me, this suggests only two possibilities. Either the majority's holding is wrong and Amendment 73 does not violate the Qualifications Clauses, or (assuming the accuracy of petitioners' factual claims) the electoral system that exists without Amendment 73 is no less unconstitutional than the electoral system that exists with Amendment 73. *925 I do not mean to suggest that States have unbridled power to handicap particular classes of candidates, even when those candidates enjoy federally conferred advantages that niay threaten to skew the electoral process. But laws that allegedly have the purpose and effect of handicapping a particular class of candidates traditionally are reviewed under the First and Fourteenth Page 81 Amendments rather than the Qualifications Clauses. Compare Storer v. Brown, 415 U.S., at 728-736, 94 S.Ct., at 1278-1282 (undertaking a lengthy First and Fourteenth Amendment analysis of a California rule that denied ballot access to any independent candidate for Congress who had not severed his ties to a political party at least one year prior to the immediately preceding primary election, or 17 months before the general election), with id., at 746, n. 16, 94 S.Ct., at 1287, n. 16 (dismissing as " wholly without merit" the notion that this rule might violate the Qualifications Clauses). Term -limit measures have tended to survive such review without difficulty. See, e.g., Moore v. McCartney, 425 U.S. 946, 96 S.Ct. 1689, 48 L.Ed.2d 190 (1976) (dismissing an appeal from State ex ref. Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607 (1976) , on the ground that limits on the terms of state officeholders do not even raise a substantial federal question under the First and Fourteenth Amendments). To analyze such laws under the Qualifications Clauses may open up whole new vistas for courts. If it is true that "the current congressional campaign finance system ... has created an electoral system so stacked against challengers that in many elections voters have no real choices," Wertheimer & Manes, 94 Colum.L.R., at 1133, are the Federal Election Campaign Act Amendments of 1974 unconstitutional under (of all things) the Qualifications Clauses? Cf. Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (upholding the current system against First Amendment challenge). If it can be shown that nonminorities are at a significant disadvantage when they seek election in districts dominated by minority voters, would the intentional creation of " majority -minority *926 districts" violate the Qualifications Clauses even if it were to survive scrutiny under the Fourteenth Amendment? Cf. Shaw v. Reno, 509 U.S. 630, 649, 113 S.Ct. 2816, 2828, 125 L.Ed.2d 511 (1993) ("[Wle express no view as to whether (the intentional creation of such districts) always gives rise to an equal protection claim"); id., at 677, 113 S.Ct., at 2843-2844 (STEVENS, J., dissenting) (arguing that States may draw district Iines for the "sole purpose" of helping blacks or members of certain other groups win © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 176 http://web2.westlaw.comlprinttprintstream.aspx?sv=Split&rlti=l&prft HTMLE&n=18&f... 3/14/2007 Page 83 of 84 115 S.Ct. 1842 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) election to Congress). More generally, if "[dlistrict lines are rarely neutral phenomena" and if " districting inevitably has and is intended to have substantial political consequences," Gaffney v. Cummings, 412 U.S. 735, 753, 93 S.Ct. 2321, 2331, 37 L.Ed.2d 298 (1973), will plausible Qualificatio ns Clause challenges greet virtually every redistricting decision? Cf. id., at 754, 93 S.Ct., at 2332 (noting our general refusal to use the Equal Protection Clause to "attemp[t] the impossible task of extirpating politics from what are the essentially political processes of the sovereign States"); see also Burns v. Richardson, 384 U.S. 73, 89, n. 16, 86 S.Ct. 1286, 1294, n. 16, 16 L.Ed.2d 376 (1966) (finding nothing invidious in the practice of drawing district lines in a way that helps current incumbents by avoiding contests between them). The majority's opinion may not go so far, although it does not itself suggest any principled stopping point. No matter how narrowly construed, however, today's decision reads the Qualifications Clauses to impose substantial**1914 implicit prohibitions on the States and the people of the States. I would not draw such an expansive negative inference from the fact that the Constitution requires Members of Congress to be a certain age, to be inhabitants of the States that they represent, and to have been United States citizens for a specified period. Rather, I would read the Qualifications Clauses to do no more than what they say. I respectfully dissent. U.S.Ark.,1995. U.S. Term Limits, Inc. Y. Thornton 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed.2d 881, 63 USLW 4413 Briefs and Other Related Documents (Back to top) 1994 WL 714634 (Oral Argument) Oral Argument (Nov. 29,1994) 1994 WL 660722 (Appellate Brief) REPLY BRIEF FOR RESPONDENTS REPUBLICAN PARTY OF ARKANSAS AND W. ASA HUTCHINSON SUPPORTING PETITIONERS (Nov. 22, 1994) 1994 WL 659546 (Appellate Brief) REPLY BRIEF FOR RESPONDENTS Page 82 REPRESENTATIVE JAY DICKEY AND REPRESENTATIVE TIM HUTCHINSON SUPPORTING PETITIONERS (Nov. 21, 1994) 1994 WL 658533 (Appellate Brief) REPLY BRIEF FOR THE STATE PETITIONER (Nov. 18, 1994) 1994 WL 646175 (Appellate Brief) REPLY BRIEF FOR PETTIONERS U.S. TERM LIMITS, INC., et al., (Nov. 16, 1994) • 1994 WL 16011865 (Appellate Petition, Motion and Filing) Brief for the United States as Amicus Curiae Supporting Respondents (Oct. 17, 1994) Original Image of this Document (PDF) - 1994 WL 570304 (Appellate Brief) BRIEF FOR RESPONDENT CONGRESSMAN RAY THORNTON (Oct. 17, 1994) - 1994 WL 577074 (Appellate Brief) BRIEF OF RESPONDENTS BOBBIE E. HILL, ON BEHALF OF THE LEAGUE OF WOMEN VOTERS OF ARKANSAS, AND DICK HERGET (Oct. 17, 1994) - 1994 WL 444683 (Appellate Brief) BRIEF FOR THE STATE PETITIONER (Aug. 16, 1994) - 1994 WL 444704 (Appellate Brief) BRIEF FOR PETITIONERS U.S. TERM LIMITS, INC., et al. (Aug. 16, 1994) - 1994 WL "9512 (Appellate Brief) BRIEF FOR RESPONDENTS REPUBLICAN PARTY OF ARKANSAS AND W. ASA HUTCHINSON SUPPORTING PETITIONERS (Aug. 16, 1994) - 1994 WL 513192 (Appellate Brief) BRIEF FOR RESPONDENTSREPRESENTATIVE JAY DICKEY ANDREPRESENTATIVE TIM HUTCHINSONSUPPORTING PETITIONERS (Aug. 16, 1994) 1994 WL 16011943 (Appellate Petition, Motion and Filing) Reply in Support of Petition for Certiorari (Jun. 06, 1994) Original Image of this Document (PDF) - 1994 WL 16012050 (Appellate Petition, Motion and Filing) Brief for the State Respondent (May. 23, 1994) Original Image of this Document (PDF) - 1994 WL 16012049 (Appellate Petition, Motion and Filing) Brief in Opposition of Respondents Bobbie Hill, on Behalf of the League of Women Voters of Arkansas and Dick Herget (May. 16, 1994) Original Image of this Document (PDF) - 1994 WL 16099762 (Appellate Petition, Motion and Filing) Petition for a Writ of Certiorari (May. ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 177 http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&rlti=l&prft=HTU LE&n=18&f... 3/14/2007 Page 84 of 84 115 S.Ct. 1842 Page 83 514 U.S. 779,115 S.Ct. 1842, 131 L.Ed.2d 881,63 USLW 4413 (Cite as: 514 U.S. 779,115 S.Ct.1842) 16,1994) • 1994 WL 16011957 (Appellate Petition, Motion and Filing) Petition For a Writ of Certiorari (Mar. 17, 1994) Original Image of this Document with Appendix (PDF) END OF DOCUMENT ® 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 1'78 http://web2.westlaw.comlprint/printstream.aspx?sv=Split&rlti=l &prft=HTMLE&n=18&f... 3/14/2007