514 U.S. 779 (1995), argued 29 Nov. 1994, decided 22 May 1995 by vote of 5 to 4; Stevens for the Court, Kennedy concurring, Thomas, Rehnquist, O’Connor, and Scalia in dissent. By the late 1980s and early 1990s the perceived advantages held by incumbents in Congress and in state legislatures stimulated a nationwide movement to place restrictions on the number of terms that elected officials could serve. Between 1990 and 1993, for example, twenty-three states placed such restrictions on members of their congressional delegations and an even larger number imposed limitations on their state legislators. Moreover, in 1994 Republican candidates for Congress pledged in their “Contract with America” to bring a proposed term limit amendment to a vote. The entire term limits debate evoked images of citizen lawmakers versus corrupt professional politicians.
At the general election in 1992, the voters of Arkansas adopted Amendment 73. This ballot initiative applied term limits to three groups: elected officials in the executive branch, members of the state legislature, and the Arkansas congressional delegation. In the case of the third group, the new amendment restricted persons serving in the Congress to three terms and persons serving in the United States Senate to two terms. The amendment provided that persons who exceeded these limits would not be certified to be on the ballot, although this arrangement did not restrict a candidate from running a write-in campaign. The sponsors of the amendment argued that the states alone had authority to determine who they wished to send to Congress and that the question of election qualifications was the business of the states and not of the federal government.
The proponents of Amendment 73 insisted that the regulation was not a qualification to hold office but simply a ballot access measure of the sort authorized by the federal Constitution's “elections clause.” The Arkansas measure simply continued a practice reaching back to the colonial era in which the states were fully empowered to set nominating rules and procedural limits. Moreover, the framers of the federal Constitution had intended as much, since they wanted, above all else, a Congress of citizen legislators, who would not want to stay in office indefinitely. While supporters of the term limit concept differed over whether Congress or the states alone could pass these measures, they all agreed that better government required higher turnover in office.
The critics of Amendment 73 insisted that the states could regulate the integrity of the electoral process only within a single electoral cycle, and that the states could not supersede the provisions of Article I, section 2, clause 3 (House of Representatives) and Article I, section 3, clause 3 (Senate), which laid out the qualifications for office. They complained that the Arkansas amendment had established a qualification for serving in Congress by limiting the terms of service that a candidate could offer to the public. The replacement of incumbent congressmen was the function of the electoral process; provisions dealing with membership in Congress were beyond the reach of the states.