JEFFERSON CITY, Mo. — The Missouri Supreme Court will decide whether Secretary of State Jay Ashcroft unconstitutionally delayed an attempt by abortion rights groups to challenge the state's restrictive 2019 abortion ban with a public vote.
The groups, including the American Civil Liberties Union of Missouri, attempted to put a repeal of the new law, which criminalizes abortion at eight weeks of pregnancy with no exceptions for cases of rape or incest, on the 2020 statewide ballot. But by the time Ashcroft's office approved the measure for gathering of the required 100,000 signatures, two weeks remained before the deadline.
The ACLU is arguing that requirements in state law Ashcroft must meet before approving signature-gathering infringe on the public's right to revoke statutes by popular vote, as guaranteed by the state constitution. These include requiring the secretary of state to prepare a title and 100-word summary of the ballot measure, a 15-day public comment period, fiscal review by the state auditor and review of the ballot language by the attorney general.
All together, the requirements could take as many as 51 days to complete. The constitution gives petitioners up to 90 days after a legislative session ends to collect enough signatures to put a referendum on the ballot. Groups can begin the process once the legislation is passed and sent to the governor's desk.
Jason Lewis of the Missouri attorney general's office, representing Ashcroft, told the Supreme Court on Wednesday those requirements are all "reasonable regulations."
"Ballot titles contain critical information" for petition-signers, he said, including information about the legislation in the referendum to prevent "misleading representations" to the public.
The referendum, a legal instrument used to strike down legislation passed by the General Assembly via ballot measure, has been used only rarely in Missouri history. Initiative, a similar process by which citizen groups can bypass the Legislature and put their own laws on the ballot, has been more common.
Liberal groups have had success in recent years using ballot measures to strike down a right-to-work law and to pass Medicaid expansion and minimum wage hikes — proposals that would have gone nowhere in the conservative-dominated Legislature. Ashcroft and other Republicans are attempting to tighten requirements for signature-gathering and other parts of the ballot measure process that would make proposals harder to pass on a statewide vote,
The abortion law itself is not yet in effect. It has been barred from enforcement since 2019 by the federal courts in a lawsuit brought by the state's sole abortion provider. The 8th U.S. Circuit Court of Appeals is currently weighing whether to lift the injunction.
Prior to pursuing that lawsuit, the American Civil Liberties Union of Missouri and a coalition of abortion rights groups called No Bans on Choice tried to repeal the new legislation instead. In May 2019, seven days after their first opportunity to do so, they filed a referendum petition to put the eight-week abortion ban signed by Gov. Mike Parson on the ballot, They had until Aug. 28 to get the signatures.
Ashcroft rejected the petition, arguing that the law could not be repealed by referendum because some sections were passed on an emergency basis, meaning they were effective immediately upon Parson's signature. A Missouri appeals court ordered Ashcroft to approve the petition. But by the time the court case was over and Ashcroft had signed off on the other requirements for approval, there were only two weeks left to collect signatures.
Ashcroft at the time denied that his anti-abortion views led him to "run out the clock" on the referendum campaign. He pointed out that in 2017 he angered conservatives by approving a referendum on a law prohibiting unions from requiring dues.
The ACLU sued his office over the alleged delays. Last year, a Cole County judge sided with the group; Ashcroft appealed the matter to the state Supreme Court.
On Wednesday, Lewis urged judges against a blanket ruling that the ballot-title and other requirements are unconstitutional.
In the case of the 2017 referendum defeating the union law, he said, the bill was passed early in the legislative session and groups opposed to it had plenty of time to meet the deadline for signatures.
Pressed by Judge Patricia Breckenridge on how much a regulation could constitutionally "impede" the public's right to referendum, Lewis said he considered the current requirements, which take up a maximum of 51 days, to be reasonable — while requirements that would take up 89 days would not.
Jessie Steffan of the ACLU said the requirements could be reasonable, but restricting the time frame for signature gathering is not. Doing so, she said, allows lawmakers to pass legislation late in the session knowing opponents would have less time to put the matter to a vote.
"The Legislature has in its hands the decision of how broad the referendum right is," she said. "The Legislature shouldn't be given the tools to narrow or broaden that right."
