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Fending off lawsuits part of the initiative petition challenge in Mo.

Sunday, January 20, 2008 | 6:37 p.m. CST; updated 12:54 a.m. CDT, Friday, July 18, 2008

JEFFERSON CITY — So you’re sick of waiting for the legislature to take up your pet project. No problem, you can do it yourself, just make sure you have lots of organization, plenty of support and more than a few C-notes. Oh, don’t forget a good lawyer.

A century ago, Missouri joined several states in allowing citizens to skip over their elected officials and put proposals for new laws and constitutional amendments directly on the ballot for fellow voters.

Ballot measures challenged in past two elections

Lawsuits challenging ballot summaries and cost estimates have followed most initiative petitions filed in Missouri for the 2006 and 2008 elections. This year, a state judge raised eyebrows when he rewrote a summary for an affirmative action ballot measure. Here are the ballot measures that have been challenged in the two most recent elections.

2008

ABORTION

Planned Parenthood sued to prevent a petition that the group said would block most abortions. The sponsoring organization also challenged the ballot summary and state auditor’s cost estimate.

AFFIRMATIVE ACTION

Petition sponsor Tim Asher sued to edit the ballot summary. Two critics challenged the ballot summary and cost estimate. A state judge rewrote the summary but rejected the counterclaim.

STEM CELLS

An initiative petition to redefine human cloning after voters approved a constitutional amendment allowing embryonic stem cell research prompted lawsuits from those who sponsored the petition and those who supported the initial amendment. Cures Without Cloning said the ballot language written by the secretary of state for its new initiative was inflammatory.

2006

EMINENT DOMAIN

There were several petitions circulated and three lawsuits. The Missouri Municipal League, the St. Louis Development Corp. and the Tax Increment Finance Commission of Kansas City challenged the ballot summary and cost estimate of a measure to restrict the taking of private property. A state judge upheld the summary but ordered the state auditor to recalculate the cost. Patrick Tuohey, who sponsored that petition, later sued after the secretary of state invalidated some signatures. A state appellate court sided with the secretary of state.

GOVERNMENT SPENDING

A former director of the state Public Safety and Corrections departments challenged the ballot language and cost estimate. A judge ordered a new cost estimate. Missourians in Charge, which sponsored the proposal, also unsuccessfully challenged invalidated signatures.

STEM CELLS

Missourians Against Human Cloning sued unsuccessfully to get the ballot summary changed for a proposed constitutional amendment allowing embryonic stem cell research.

TOBACCO TAX

Committee for a Healthy Future got the state Supreme Court to put on the ballot a petition to increase the state cigarette tax. The secretary of state had calculated that the petition was 274 signatures short.


But bypassing the legislature means getting lots of support — about 90,000 signatures — letting the secretary of state write what will actually appear on the ballot and allowing the state auditor to add up what the changes will cost.

And that’s where the lawyers have come in, especially during the most recent elections.

In 2006, there were more lawsuits than proposals actually making the ballot. In advance of the November elections, about one lawsuit has been filed so far for every two initiative petitions approved for circulation. And in some cases, supporters and critics have found themselves in court simultaneously arguing that descriptions are biased toward the other side.

“It seems that if you don’t get your way, the American way is to sue someone,” said political scientist George Connor of Missouri State University. That tendency, he said, eventually could make initiative petitions less attractive and more infrequent.

It’s not that no one has ever challenged an initiative petition or part of the process in getting one on the ballot. But in 2006 and heading into this year’s election, nearly every citizen-led ballot measure that made the ballot or stood a reasonable chance of getting there has been greeted with a lawsuit.

According to records from the secretary of state and attorney general offices, eight lawsuits were filed in 2006 alone. Yet from 2000 to 2004, just three lawsuits were filed — one for each election.

Until this month, none of the lawsuits had successfully challenged a ballot summary describing the initiative.

But after wading through competing lawsuits from supporters and opponents of an initiative banning most government affirmative action programs, Cole County Circuit Judge Richard Callahan rewrote the ballot language.

It was a move that raised eyebrows because judges have generally allowed the secretary of state wiggle room to summarize the often complicated initiative petitions. Alex Bartlett, a veteran Jefferson City attorney who has been involved with initiative petitions for about three decades, said Callahan’s ruling was the first time he could remember a judge rewriting ballot language.

To win a court challenge, someone must convince a judge that the ballot summary is insufficient or unfair.

“It’s a way to get something changed, but the test is very, very, very tough,” Bartlett said.

If it’s so hard to get the courts to change the ballot language, why all the lawsuits?

It’s a relatively cheap yet effective method for groups to oppose an initiative without having to buy TV commercials or develop a statewide grass-roots operation, Connor said.

Lawsuits can also delay the gathering of petition signatures by supporters, making it more difficult for them to turn in enough names by the May 3 deadline.

For example, sponsors of the petition rewritten by Callahan had been waiting for the legal challenges to clear before collecting signatures. Ward Connerly, who is leading a national effort to approve similar constitutional amendments in four other states, said he thinks critics are using legal challenges and a misleading ballot summary to stall.

One of the groups involved in recent ballot lawsuits is the Missouri Coalition for Lifesaving Cures. That group steered passage of a constitutional amendment allowing embryonic stem cell research in 2006 and this year is opposing an initiative that would ban a certain type of stem cell research.

“One of the tactics for those who want to block an initiative is the courts,” said Donn Rubin, chairman of the coalition.

The threat of a lawsuit also adds another hurdle for the Missourian or group ready to sidestep the politicians and take an issue directly to voters.

Because turning ballot measures into courtroom dramas can mean more scrutiny over the language, it might turn a “citizens” petition into an effort too expensive for anyone but an organized group.

“It’s more conflicted, more contentious and therefore more expensive,” Connor said.


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