                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 98-1563
                                  ___________

Andrew Miller and Martin R. Hoer,     *
                                      *
            Appellees,                *
                                      *
      v.                              *
                                      *
Scott Moore, Secretary of State       *
for the State of Nebraska,            *
                                      *
            Appellant,                *
                                      *
            and                       *
                                      *
U.S. Term Limits Foundation,          *
Nebraska Term Limits Coalition,       *
and Robert D. Wright,                 *
                                      *
            Intervenor-Defendants .   *


                                  ___________

                                  No. 98-1566
                                  ___________

Timothy J. Duggan, Ray L.             *
Lineweber, ACLU Nebraska,             * Appeals from the United States
Ron Withem, and Ernest Chambers,      * District Court for the District
                                      * of Nebraska.
            Appellees,                *
                                      *
      v.                              *
                                      *
Scott Moore, Secretary of State       *
for the State of Nebraska,            *
                                      *
            Appellant,                *
                                      *
            and                       *
                                      *
U.S. Term Limits Foundation,          *
Nebraska Term Limits Coalition,       *
and Robert D. Wright,                 *
                                      *
            Intervenor-Defendants.    *


                                  ___________

                                  No. 98-1827
                                  ___________

Timothy J. Duggan, Ray L.             *
Lineweber, ACLU Nebraska,             *
and Ron Withem,                       *
                                      *
            Appellees,                *
                                      *
      v.                              *
                                      *
Scott Moore, Secretary of State       *
for the State of Nebraska,            *
                                      *
            Defendant,                *
                                      *
            and                       *
                                      *


                                      -2-
U.S. Term Limits Foundation,         *
                                     *
            Appellant,               *
                                     *
            and                      *
                                     *
Nebraska Term Limits Coalition       *
and Robert D. Wright,                *
                                     *
            Intervenor-Defendants.   *
                                ___________

                             Submitted: November 18, 1998

                                  Filed: Tuesday, March 2, 1999
                                   ___________

Before BEAM, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Nebraska State Senator Ernie Chambers, ACLU Nebraska, Timothy Duggan,
Martin Hoer, Ray Lineweber, Andrew Miller, and Ron Withem brought this action
under 42 U.S.C. § 1983, seeking declaratory and injunctive relief against Scott
Moore, the secretary of state of Nebraska. (Although this appeal actually involves
three separate cases, we treat them as one case for purposes of simplicity.) The
plaintiffs sought to enjoin Mr. Moore from implementing and enforcing Article XVIII
of the Nebraska Constitution, an amendment passed by voter initiative in the 1996
general election.

      Article XVIII makes it Nebraska's "official position" that its elected officials
should work to enact an amendment to the U.S. Constitution limiting congressional
service to two terms in the Senate and three terms in the House of Representatives.


                                         -3-
The provision then "instructs" each of Nebraska's representatives in Congress to "use
all of his or her delegated powers" to pass the specified term limits amendment. It
also "instructs" members of the Nebraska legislature to apply to Congress, see U.S.
Const. art. V, for a national convention, the purpose of which is to propose a
congressional term limits amendment. Nebraska’s Article XVIII also includes a
detailed list of instructions to legislators with respect to proposing, seconding, and
voting in favor of the term limits amendment, and it requires that the label
"DISREGARDED VOTERS [sic] INSTRUCTIONS ON TERM LIMITS" be placed
on the ballot adjacent to the name of any incumbent candidate who fails to comply
with all of those instructions. The Nebraska secretary of state is assigned the task of
determining whether an incumbent candidate will receive the pejorative ballot label.

       Article XVIII also requires that nonincumbent candidates for Congress or for
the Nebraska legislature be given an opportunity to take a "Term Limits Pledge"
stating that, if elected, they will use their legislative powers to enact the term limits
amendment specified in Article XVIII. Nonincumbent candidates who refuse to take
the pledge receive the ballot label "DECLINED TO TAKE PLEDGE TO SUPPORT
TERM LIMITS."

       The district court granted declaratory and injunctive relief to the plaintiffs,
holding that Article XVIII violates both the First Amendment and Article V of the
U.S. Constitution. Secretary of State Moore appeals, and we affirm the judgment of
the district court with respect to these issues. The district court also assessed
attorney’s fees against U.S. Term Limits Foundation, which appeals that award. We
remand the case for reconsideration with respect to the issue of attorney’s fees.

                                         I.
       As a preliminary matter, we address the issue of standing. We agree with the
district court that Nebraska State Senator Ernie Chambers, as an opponent of a
constitutional term limits amendment, has alleged a sufficiently particularized and

                                          -4-
concrete injury to give him standing in this case. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). The district court found that Article XVIII injures
Senator Chambers by threatening him with a pejorative ballot label if he refuses to
comply with its mandates, a ballot label that would seriously jeopardize his chances
of reelection and threaten his political career and livelihood. The record amply
supports the district court's finding, and we think that the threatened harm is sufficient
under the relevant cases to confer standing on Senator Chambers to challenge the
constitutionality of Article XVIII's provisions pertaining to state legislators. See, e.g.,
Meese v. Keene, 481 U.S. 465, 473 (1987) (state legislator seeking to show films
identified as "political propaganda" under Foreign Agents Registration Act had
standing to challenge constitutionality of act, where legislator claimed that his
exhibition of films with that label would harm his chances for reelection and
adversely affect his reputation in the community). See also Lujan, 504 U.S. at 561-62
(when suit challenges legality of a governmental action, and plaintiff is object of that
action, plaintiff ordinarily has standing).

       In support of the argument that Senator Chambers lacks standing, Secretary of
State Moore draws our attention to the Supreme Court's recent decision in Raines v.
Byrd, 117 S. Ct. 2312, 2322 (1997), in which the Court held that members of
Congress lacked standing to challenge the Line Item Veto Act. We think, however,
that Raines is clearly distinguishable from the case before us. In Raines, the Court
emphasized that the injury alleged by the legislators was merely an "abstract dilution
of institutional legislative power," id. at 2320-21, that affected all members of
Congress equally, rather than a concrete injury to individual legislators who were
singled out for "specially unfavorable treatment," id. at 2318. Here, however, the
district court found, and with reason, that Article XVIII's ballot labeling provisions
threaten Senator Chambers's political career and livelihood -- precisely the type of
individualized, concrete injury that the Supreme Court found lacking in Raines.
Accordingly, Raines has no application here.



                                           -5-
       Because Senator Chambers, as an incumbent state legislator, lacks standing to
challenge the provisions in Article XVIII pertaining to either incumbent U.S.
representatives or nonincumbent candidates, we must decide whether Messrs.
Duggan, Hoer, Lineweber, Miller, and Withem, as registered voters, have standing
to challenge these provisions. In reviewing ballot regulations such as Article XVIII,
"our primary concern is not the interest of [the] candidate ... but rather, the interests
of the voters who chose to associate together to express their support for [that]
candidacy and the views ... espoused." Anderson v. Celebrezze, 460 U.S. 780, 806
(1983). A voter therefore has standing to challenge a state law regulating elections
when that law "would restrict his ability to vote for the candidate of his choice or
dilute the effect of his vote if his chosen candidate were not fairly presented to the
voting public." McLain v. Meier, 851 F.2d 1045, 1048 (8th Cir. 1988) (holding that
voter had standing to challenge ballot access law that he claimed was overly
restrictive in signature requirements and deadlines). In our case, the voters contend
that Article XVIII's pejorative ballot labels injure them by greatly diminishing the
likelihood that the candidates of their choice will prevail in the election. We agree
with the district court's finding that this constitutes a sufficiently concrete and
particularized injury to give the plaintiffs standing in the case before us.

       Because we find that Messrs. Duggan, Hoer, Lineweber, Miller, and Withem
have standing as voters to challenge the constitutionality of Article XVIII in its
entirety, we need not decide whether Mr. Lineweber also has standing as a potential
future candidate for the state legislature, or whether ACLU Nebraska has standing on
behalf of its members. See Bowsher v. Synar, 478 U.S. 714, 721 (1986).

                                        II.
      The U.S. Constitution provides two exclusive methods for its own amendment:

      The Congress, whenever two thirds of both Houses shall deem it
      necessary, shall propose Amendments to this Constitution, or, on the

                                          -6-
      Application of the Legislatures of two thirds of the several States, shall
      call a Convention for proposing Amendments.

U.S. Const. art. V. In the handful of cases discussing Article V's amendment scheme,
the Supreme Court has made it clear that both methods of amendment that the framers
provided "call for action by deliberative assemblages representative of the people,
which it was assumed would voice the will of the people." Hawke v. Smith, 253 U.S.
221, 226-27 (1920). As a consequence, the voters in an individual state have, at best,
a very limited role in the amendment process. In Leser v. Garnett, 258 U.S. 130
(1922), for example, the Supreme Court held that provisions in several state
constitutions that forbade the legislatures of those states to adopt a constitutional
amendment granting women the right to vote, were in conflict with Article V. The
Court explained:

      [T]he function of a state legislature in ratifying a proposed amendment
      to the Federal Constitution, like the function of Congress in proposing
      the amendment, is a federal function derived from the Federal
      Constitution; and it transcends any limitations sought to be imposed by
      the people of a State.

Id. at 137; see also Hawke, 253 U.S. at 231 (striking down under Article V a state
constitutional provision requiring that ratification of proposed amendments to the
U.S. Constitution be submitted to popular referendum).

      On the other hand, we believe that a "nonbinding, advisory referendum,"
Kimble v. Swackhamer, 439 U.S. 1385, 1388 (1978), on proposed constitutional
amendments does not violate Article V. In Kimble, Justice Rehnquist, sitting as
Circuit Justice, had before him a Nevada statute that required submission of an
"advisory question," id. at 1386, to Nevada voters as to whether the state legislature
should vote to ratify the Equal Rights Amendment. The statute expressly provided,
however, that the result of the popular referendum placed no legal requirement on the

                                         -7-
members of the legislature regarding their own votes on the amendment. Id. Justice
Rehnquist refused to grant interim relief against the referendum, noting that he
"would be most disinclined to read either Hawke ... or Leser ... as ruling out
communication between the members of the legislature and their constituents." Id.
at 1387-88.

       The question before us, then, is where Nebraska's Article XVIII falls on the
spectrum between impermissible direct involvement of the people in the amendment
process (as in Leser and Hawke) and permissible advisory and nonbinding
communication between the people and their representatives (as in Kimble).
Secretary of State Moore maintains that Article XVIII is merely an advisory statement
of popular opinion that legislators are free to ignore, and is thus permissible under
Kimble. He argues, moreover, that because he and other Nebraska state officials have
construed Article XVIII as nonbinding on legislators, we must defer to that
interpretation.

       We disagree. Unlike the measure in Kimble, which specifically stated that
legislators were not bound by the results of the referendum, we believe that
Nebraska’s Article XVIII represents a clear attempt to coerce or bind legislators into
exercising their Article V powers to pass a term limits amendment. The language of
Article XVIII is mandatory: It does not, for example, "advise" or "suggest" or "urge"
Nebraska's legislators to pass a term limits amendment; instead, it "instructs
lawmakers to proceed on a precise and inflexible course of action utilizing the full
range of their Article V authority," Morrissey v. Colorado, 951 P.2d 911, 916 (Colo.
1998) (en banc). Article XVIII penalizes legislators who disobey its mandate,
moreover, by notifying the voters in the next election that these legislators have
"disregarded" the voters' "instructions" on term limits. We do not think that such a
provision can plausibly be read as merely advisory.




                                         -8-
       An examination of the constitutional history behind popular "instructions" to
legislators gives us further cause to doubt the constitutionality of Article XVIII. In
1789, the House of Representatives rejected a proposed "right to instruct
Representatives" that would have been one of the rights specified in the First
Amendment. See P. Kurland and R. Lerner, eds., 5 The Founders' Constitution 200-
06 (1987) (debate on inclusion of proposed "right to instruct Representatives"), and
A. Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55
U. Chi. L. Rev. 1043, 1058-60 (1988). James Madison and his fellow Federalists, in
particular, feared that popular instructions to legislators would destroy legislative
debate and make compromise impossible. See Kurland and Lerner, 5 The Founders’
Constitution, at 201-02, and Amar, Philadelphia Revisited, at 1059. They feared, in
addition, that a right to instruct, whether or not legally binding on legislators, would
convey to the people the idea that they had a right to control the debates of Congress,
thus undermining the Federalists' scheme of representative government. See Kurland
and Lerner, 5 The Founders' Constitution, at 202-04, and Amar, Philadelphia
Revisited, at 1058-60.

       We think that Article XVIII's instructions to legislators do precisely what the
members of the House of Representatives were seeking to prevent by rejecting a right
of instruction: They undermine representative government by permitting the people
to control and direct the Article V powers of Nebraska's legislators in a very specific,
detailed manner.         The ballot label ("DISREGARDED VOTERS [sic]
INSTRUCTIONS ON TERM LIMITS"), moreover, reinforces the erroneous
impression among voters that the people in fact have the right to "instruct" and
control their legislators in this way.

      We therefore conclude that Nebraska’s Article XVIII is an unconstitutional
attempt effectively to remove the Article V power from legislators and to place it in
the hands of the people, thus substituting popular will for the will of the independent
"deliberative assemblage," Hawke, 253 U.S. at 227, envisioned by the framers of the

                                          -9-
Constitution. Such direct involvement by the people is impermissible under Article
V's amendment scheme, and we therefore hold that Sections 2, 4, and 5 of Nebraska’s
Article XVIII (the provisions pertaining to legislators) are unconstitutional.

                                           III.
       In addition to the conflict with Article V, we think that the ballot labeling
provisions of Nebraska’s Article XVIII ("DISREGARDED VOTERS [sic]
INSTRUCTIONS ON TERM LIMITS" for incumbent candidates, and "DECLINED
TO TAKE PLEDGE TO SUPPORT TERM LIMITS" for nonincumbent candidates)
are an unconstitutional infringement on the right to vote, a "fundamental political
right," Williams v. Rhodes, 393 U.S. 23, 38 (1968) (Douglas, J., concurring). The
Supreme Court has made it clear that some state laws governing ballot content and
ballot access may unconstitutionally infringe on "the right of qualified voters ... to
cast their votes effectively," Williams, 393 U.S. at 30, and on a candidate's or political
party's right to "continued availability of political opportunity" through reasonable
access to the ballot, Lubin v. Panish, 415 U.S. 709, 716 (1974). Thus while states
enjoy a wide latitude in regulating elections and in controlling ballot content and
ballot access, they must exercise this power in a reasonable, nondiscriminatory,
politically neutral fashion. See Burdick v. Takushi, 504 U.S. 428, 434, 438 (1992).

       The Supreme Court has addressed the constitutionality of a state's ballot
labeling provision on only one occasion. See Anderson v. Martin, 375 U.S. 399, 401-
02 (1964) (striking down, on equal protection grounds, Louisiana statute requiring
that candidate's race appear next to candidate's name on ballot); see also McLain v.
Meier, 637 F.2d 1159, 1167 (8th Cir. 1980) (holding that North Dakota statute
requiring that incumbent candidates be listed first on ballot burdened right to vote by
showing favoritism to voters who supported incumbent and major-party candidates).
We think, however, that the Supreme Court's decisions addressing state laws
governing ballot access and other election procedures are equally applicable here.



                                          -10-
       Those decisions make it clear that a state's legitimate interests in regulating
elections are limited to promoting "orderly, fair, and honest elections." U.S. Term
Limits v. Thornton, 514 U.S. 779, 834 (1995). In U.S. Term Limits, the Supreme
Court reviewed its case law on the states' power to regulate elections, and concluded:
"States are thus entitled to adopt 'generally applicable and evenhanded restrictions
that protect the integrity and reliability of the electoral process itself.' " Id. at 834,
quoting Anderson, 460 U.S. at 788 n.9. State laws are permissible, therefore, when
they "regulate election procedures and [do] not even arguably impose any substantive
qualification rendering a class of potential candidates ineligible for ballot position"
(emphasis in original). U.S. Term Limits, 514 U.S. at 835. But "a state amendment
is unconstitutional when it has the likely effect of handicapping a class of
candidates." Id. at 836.

        Article XVIII's ballot labeling provisions do not qualify as politically neutral
or evenhanded. The likely (and, we believe, the intended) effect of these ballot labels
is to place a severe handicap on any candidate who does not support the term limits
amendment specified in Article XVIII. Secretary of State Moore contends that these
ballot labels are no different from ballot labels identifying a candidate's political party
affiliation, and that they further the state's interest in providing voters with
information regarding a candidate's position on term limits. But we see no reason
why the requirement of political neutrality applicable in the ballot access context
should not be applicable to any information that a state may choose to provide to
voters through the content of the ballot. Information conveyed through the official
state ballot necessarily enjoys the official imprimatur of the state, and we therefore
believe that such information must be conveyed in a neutral, nondiscriminatory
fashion.

       In fact, it is precisely this official neutrality that distinguishes existing ballot
labels (such as those identifying a candidate's political party affiliation or incumbent
status) from the pejorative ballot labels at issue here. Article XVIII's ballot labels

                                           -11-
effectively place the state's official stamp of disapproval on a specific group of
candidates, namely, those whom the state disfavors because of their views on a single
political issue or, in the case of incumbent candidates, because they failed to comply
to the letter with Article XVIII's detailed list of instructions. We therefore conclude
that Article XVIII's ballot labeling provisions constitute an improper exercise of
Nebraska's authority to regulate the content of its ballots.

       Proponents of a constitutional term limits amendment of course have a variety
of means at their disposal for expressing their views and for publicizing candidates'
positions on term limits. The function of the official election process, however, is "
'to winnow out and finally reject all but the chosen candidates,' ... not to provide a
means of giving vent to 'short-range political goals.' " Burdick, 504 U.S. at 438,
quoting Storer v. Brown, 415 U.S. 724, 735 (1974). Accordingly, we believe that the
State may not "undermine the ballot's purpose by transforming it from a means of
choosing candidates to a billboard for political advertising," Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 365 (1997). We therefore hold that Sections 2, 3, 4,
and 5 of Article XVIII are an unconstitutional infringement on the right to vote.

                                            IV.
       Section 8 of Article XVIII states that if any portion of the article is held to be
invalid, the remaining portions shall remain in full force and effect. We agree with
the district court that Section 1 of the article, establishing as the "official position of
the citizens and State of Nebraska" that its elected officials should enact a specific
term limits amendment, is severable from the invalid portions of Article XVIII.
Section 1, standing alone, is exactly the sort of advisory, nonbinding communication
between the people and their representatives that is permissible, and we therefore
conclude that it may remain in effect.

                                            V.



                                           -12-
       U.S. Term Limits Foundation, which intervened as a defendant in this case,
appeals from the district court's award of attorney's fees against it. The district court,
in its order assessing attorney's fees under 42 U.S.C. § 1988(b), stated that the
foundation had been "sufficiently active in the suit to be responsible for awardable
fees and expenses," and assessed fees jointly and severally against it and Secretary
of State Moore.

       Under Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754, 761
(1989), however, a court should assess attorney's fees "against losing intervenors only
where the intervenors' action was frivolous, unreasonable, or without foundation."
In apportioning attorney's fees between the losing parties, moreover, we think that the
district court should have taken into account "the defendants' relative degrees of
culpability and the time the plaintiffs were forced to spend litigating against the
respective defendants," Jenkins v. Missouri, 838 F.2d 260, 266 (8th Cir. 1988), cert.
denied in pertinent part, 488 U.S. 889 (1988); see also Hendrickson v. Branstad, 934
F.2d 158, 164 (8th Cir. 1991). We therefore remand this case to the district court for
a reconsideration of its assessment of attorney's fees against U.S. Term Limits
Foundation.

                                          VI.
       In summary, we affirm the district court's judgment declaring invalid Sections
2, 3, 4, and 5 of Article XVIII of the Nebraska Constitution. We likewise affirm the
district court's order permanently enjoining Secretary of State Moore from
implementing those sections. We remand this case to the district court, however, for
a reconsideration under Zipes of its assessment of attorney's fees against U.S. Term
Limits Foundation.

BEAM, Circuit Judge, dissents with respect to Part III.




                                          -13-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                          -14-
