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Analysis: Missouri ballot initiatives face hurdles

Tuesday, April 10, 2012

JEFFERSON CITY, Mo. - Missouri voters could get a say this fall on a bevy of big issues. Should the state's income tax be replaced with a higher sales tax? Should the tobacco tax be raised? Should the minimum wage be raised? Should payday loan rates be limited? Should St. Louis gain control over its police force?

Supporters have been gathering petition signatures in hopes of qualifying each item for the November ballot. But with the deadline to submit those signatures just one month away, it is not certain whether any of those hundreds of thousands of signatures even will matter.

That's because all the prospective ballot initiatives remain tied up in court, with the potential of getting tossed out.

Regardless of who wins or loses come November, one of the most significant aspects of Missouri's 2012 election season may be the sheer proliferation of potential ballot initiatives and an accompanying rise in litigation.

Missouri is one of 24 states that allow citizens to initiate proposed changes to state statutes or the constitution, typically by collecting enough petition signatures to qualify the issue for a statewide vote. The first step in the process is to submit a proposed initiative to the secretary of state's office, which oversees elections.

A total of 143 initiatives have been turned in for the 2012 election -- an amount nine times greater than the mere 16 initiatives submitted in 2004.

That increase is due not to an abundance of new ideas for laws. Rather, the growth reflects a new trend in which supporters are submitting multiple versions of their potential ballot initiatives -- sometimes changing only a few words in the hopes of getting a favorable ballot summary from the secretary of state's office and one that could withstand possible legal challenges.

For example, supporters of an initiative about local tobacco taxes submitted 27 versions to the secretary of state's office, none of which are still being pursued for the ballot. Proponents of a proposal to scrap the state income tax in favor of a broader sales tax submitted 22 versions, according to the secretary of state's office. A group proposing a statewide tobacco tax increase turned in a dozen versions.

For each version, the attorney general must approve the format, the secretary of state must prepare a ballot summary and the state auditor must develop a financial estimate. The secretary of state then certifies the initiative to be circulated, clearing supporters to begin gathering signatures.

In recent years, an initiative's official certification has served as the launching point for lawsuits contending the ballot summary and financial estimate are insufficient and unfair. The secretary of state's office says there have been 50 lawsuits challenging initiatives for the 2012 election, up from just four lawsuits in 2006.

Secretary of State Robin Carnahan is frustrated by the extra burden the initiative surge has placed on her office. A "fact sheet" from her office declares that the petitions have "become more of a political tool than a serious method of changing the law" and says the lawsuits "waste time and tax dollars."

All the lawsuits start in Cole County Circuit Court, where there have been conflicting rulings from judges. Judge Jon Beetem, for example, recently ruled that the auditor has no constitutional authority to prepare financial estimates for ballot initiatives -- an argument apparently rejected by Judge Dan Green last week in a lawsuit against a different initiative. Consequently, it most likely will fall to the state Supreme Court to decide which judge is right.

As it stands, a circuit judge has upheld the ballot summary for the St. Louis police initiative, though it now is on appeal. A judge has struck down the ballot title for the payday loan initiative, which also could be appealed. And a judge could rule this coming week on the income-and-sales tax initiative. But hearings have yet to be held on challenges to the ballot summaries for the minimum wage and tobacco tax.

Supporters of the minimum wage and payday loan measures plan to submit signatures despite the uncertainty. So do supporters of the tobacco tax initiative.

Although they have been circulating petitions, supporters of the income-and-sales tax initiative aren't certain whether they will turn in signatures. "Our plans moving forward are really up in the air. Everything pretty much hinges on that decision" in court, said Anne Marie Moy, a spokesman for the initiative supporters.

Jefferson City attorney Marc Ellinger has represented the supporters of at least three initiatives, including the income-and-sales tax measure, while also representing the opponents of at least three other initiatives, including the payday loan measure.

Ellinger believes it's possible that just two of the initiatives ultimately will appear before voters.

"Getting a measure on the ballot, which was always intended to be relatively difficult, is exceptionally difficult now, between the combination of litigation and the multitude of measures that are out there," Ellinger said. "You have to be pretty darned determined, and you have to write really good language."

EDITOR'S NOTE: David A. Lieb has covered state government and politics for The Associated Press since 1995.

He can be reached at http://twitter.com/DavidALieb.

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