The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Missouri S. Ct. Requires State AG to Certify Reproductive Rights Initiative Ballot Language


Prof. Howard Friedman (Religion Clause) reports (some punctuation revised):

In State of Missouri ex rel. Dr. Anna Fitz-James v. Bailey (MO Sup. Ct., July 20, 2023), the Missouri Supreme Court affirmed a trial court's issuance of a writ of mandamus requiring the state Attorney General to approve the State Auditor's fiscal note summaries to eleven Reproductive Rights initiative petitions. That approval is necessary so that the Secretary of State can certify the ballot language and proponents can begin to circulate the petitions for signatures. (Full text of petitions [scroll to No. 2024-77 through 2024-87]). AP reports on the case.

State Attorney General Andrew Bailey—a gubernatorial appointee in Missouri— contended that the Auditor's conclusion that the proposed constitutional amendments would have no fiscal impact were inaccurate. Bailey, an abortion opponent, contended that, if approved by voters, the state could lose $12.5 billion in Medicaid funds and $51 billion in future tax revenues because of fewer births. This earlier report by the Missouri Independent has additional background.

From the opinion:

This case is not about the substance of Fitz-James's proposed initiatives petitions, nor is it about the fiscal impact of those proposals. Rather, this case is about which state official is authorized to estimate and summarize that fiscal impact. Section 116.175 unequivocally answers this question. It is the Auditor, and not the Attorney General, who bears this responsibility. The Attorney General's narrow authority to approve the "legal content and form" of the fiscal note summaries cannot be used as a means of usurping the Auditor's broader authority to assess the fiscal impact of the proposals and report that impact in a fiscal note and fiscal note summary….

The Attorney General, nevertheless, characterizes his claim as challenging the "legal content and form" of the fiscal notes and their summaries because he contends they use language that is argumentative or likely to prejudice readers in favor of the proposed measure. This characterization is misleading. The Attorney General nowhere identifies any of the Auditor's language the Attorney General claims is argumentative or prejudicial. Instead, he claims the content of the notes is likely to prejudice voters in favor of the proposals by underestimating the fiscal impact. And, because he believes the fiscal notes understate the costs to state and local governments, the Attorney General claims the summaries inevitably do so as well. The Attorney General has no authority under section 116.175 to refuse to approve fiscal note summaries on such grounds….

This Court has often repeated the importance of the right to initiative enshrined in the Missouri Constitution:

Nothing in our constitution so closely models participatory democracy in its pure form. Through the initiative process, those who have no access to or influence with elected representatives may take their cause directly to the people. The people, from who all constitutional authority is derived, have reserved the "power to propose and enact or reject laws and amendments to the Constitution."

For more than 40 years, this Court has noted "that procedures designed to effectuate [the rights of initiative and referendum] should be liberally construed to avail voters with every opportunity to exercise these rights" and that "[t]he ability of voters to get before their fellow voters issues they deem significant should not be thwarted in preference for technical formalities." If technical formalities cannot stand in the way, a failure to perform a clear and unequivocal duty must not be allowed to do so either. If the Attorney General had complied with his duty to approve the Auditor's fiscal note summaries in the time prescribed by section 116.175.4, the Secretary would have certified the official ballot titles for [the] initiative petitions nearly 100 days ago….