A petition for cert is pending before the Supreme Court in Kowall v. Benson. The Supreme Court has called for a response, which doesn’t mean they’re granting cert, but at least marginally increases the likelihood that it would do so.

The challenge relates to Michigan’s state legislative term limits. As a part of the rash of term limits amendments in the 90s, Michigan enacted a law that put pretty tough term limits in place, including a “lifetime ban” on holding office in the state house after serving three, two-year terms (among other limits on other offices).

One issue is a longstanding dispute over whether there’s a “right” to be a candidate. Most ballot access litigation, while focusing on whether candidates can or cannot appear on the ballot, tend to focus on the voters’ “right of association” with candidates on the ballot. The burden on candidates is higher in a case like this one, and heightened review for candidates is more attractive to the challengers here.

Another is the level of scrutiny, as Anderson v. Celebrezze (1983) and its progeny yielded a “balancing test” to determine the burden against the state’s interest. The petitioners here argue for heightened scrutiny.

Four interesting (to me!) details from the case. First, the petitioners draw from U.S. Term Limits v. Thornton (1995) and its language about “measures that exclude candidates from the ballot without reference to the candidates’ support in the electoral process.” That’s not exactly applicable because Thornton dealt with the Elections Clause, not state legislative elections. Petitioners, however, argue this “shed considerable light” on the ballot access cases. (I’m not sure that’s the case.)

Second, the petitioners argue that other cases that have approved of state restrictions on candidacies failed to account for First Amendment interests. Footnote 9 in Anderson explains, “We have also upheld restrictions on candidate eligibility that serve legitimate state goals which are unrelated to First Amendment values. See Clements v. Fashing, 457 U.S. 957 (1982) (incumbent Justice of the Peace may not seek election to state legislature; persons holding specified state and county offices are deemed automatically to resign from present office if they run for another elective office).” Clements, the petitioners here argue, did not “grapple[] with the free expression and association concepts that pervade the multiple circuit and state-supreme-court rulings holding that some level of heightened scrutiny—or at a bare minimum Anderson-Burdick sliding-scale scrutiny—is appropriate when assessing candidacy restrictions.”

Third, the petitioners use a clever analogy to Randall v. Sorrell (2006). While contribution limits in political campaigns are generally permissible, they are not always permissible, and sometimes they can be “too low and too strict.” Here, too, petitioners analogize that some term limits may be okay, but this set of term limits goes too far.

Fourth, the petition has a strange omission: Crawford v. Marion County Election Board (2008). While that case is famous for approving voter identification laws, it’s a plurality opinion (but an approach that the dissenting opinion agreed with) that sets up “heightened scrutiny” for some more burdensome forms of ballot access rules. It’s possible this case gives the Court a clean look at revising the Crawford framework.

Still, the odds of granting cert remain low. We’ll see what happens in the response.