ACRI Ballot Initiative (Missouri): Missouri Secretary of State Robin Carnahan Sets Ballot Title; MoCRI Files Suit

On July 19, 2007, Robin Carnahan, Missouri’s Secretary of State, set the ballot title for Missouri’s version of the American Civil Rights Institute’s ballot initiative (ACRI’s affiliate group in Missouri for the purpose of the ballot initiative is the Missouri Civil Rights Initiative Committee (MoCRI)).

The official ballot title as set by Secretary Carnahan is below:

Shall the Missouri Constitution be amended to:

  • ban affirmative action programs designed to eliminate discrimination against, and improve opportunities for, women and minorities in public contracting, employment and education; and
  • allow preferential treatment based on race, sex, color, ethnicity, or national origin to meet federal program funds eligibility standards as well as preferential treatment for bona fide qualifications based on sex?

The total cost or savings to state and local governmental entities is unknown. Most state governmental entities estimate no costs or savings, however, costs or savings related to future contracts are unknown. Some local governments estimate no costs or savings, but prohibition of certain municipal policies may result in unknown costs.

ACRI’s ballot initiative, if it receives sufficient votes to prevail, would amend the Missouri Constitution to prohibit discrimination against and the granting of preferential treatment to persons on the basis of basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. ACRI’s language is similar to the ACRI’s proposal to amend Colorado’s constitution (click the affirmative action link in the TAGS box in the sidebar on the right to see my posts on ACRI’s campaign in Colorado).
The executive director of the MoCRI, Tim Asher, objects to the ballot title set by Secretary Carnahan. Asher believes the ballot title should be:

Shall the Missouri Constitution be amended to prohibit any form of discrimination as an act of the state by declaring:

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.

Disagreeing with Secretary Carnahan’s ballot title summary language, Asher, for MoCRI, filed a lawsuit (case number: 07AC-CC00648) in Missouri’s Cole County Circuit Court.

Court case: Missouri Against Human Cloning v. Robin Carnahan

There is a 2006 Missouri Court of Appeals decision that is close to Asher’s ballot title challenge (Author’s Note: Asher nor Secretary Carnahan have not issued their arguments for the case yet (on the date of this post)).

In Missourians Against Human Cloning, et al., Appellants v. Robin Carnahan, WD66495 & WD66496, (3/28/2006), the authors of an initiative on human cloning, appealing the Cole County’s Circuit Court’s approval of Secretary Carnahan’s ballot title, challenged the ballot title set by Secretary Carnahan, stating that the summary statement of the ballot title was “insufficient or unfair”. The initiative authors challenged the summary’s statement that the initiative would ban human cloning or attempted cloning. The authors asked the court to amend the statement with language provided by the initiative authors.

The Missouri Court of Appeals stated that courts are cautious about entering into pre-election debates on initiative proposals. The Missouri Court of Appeals also stated that the burden falls on the challengers of the ballot title to prove that the ballot title is “insufficient or unfair.” The Missouri Court of Appeals explained that the purpose of the ballot title is to notify interested persons of the subject of the initiative.

Our role is not to act as a political arbiter between opposing viewpoints in the initiative process:

    When courts are called upon to intervene in the initiative process, they must act with restraint, trepidation . . . .. . . .Courts are understandably reluctant to become involved in pre-election debates over initiative proposals. Courts do not sit in judgment on the wisdom or folly of proposals.

Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990). “Before the people vote on an initiative, courts may consider only those threshold issues that affect the integrity of the election itself, and that are so clear as to constitute a matter of form.” United Gamefowl Breeders Ass’n of Mo. v. Nixon, 19 S.W.3d 137, 139 (Mo. banc 2000).

The burden is on the opponents of a summary statement to show that the language is “insufficient and unfair.” Hancock[v. Sec’y of State, 885 S.W.2d 42 (Mo. App. W.D. 1994)], 885 S.W.2d at 49. We have previously defined “insufficient or unfair”:

    Insufficient means “inadequate; especially lacking adequate power, capacity, or competence.” The word “unfair” means to be “marked by injustice, partiality, or deception.” Thus, the words insufficient and unfair . . . mean to inadequately and with bias, prejudice, deception and/or favoritism state the [consequences of the initiative].

Id. (citations omitted). The purpose of the ballot title “is to give interested persons notice of the subject of a proposed [law] to prevent deception through use of misleading titles. If the title gives adequate notice, the requirement is satisfied.” Union Elec. Co. v. Kirkpatrick, 606 S.W.2d 658, 660 (Mo. banc 1980).

The Missouri Court of Appeals affirmed the Cole County Circuit Court’s decision to approve Secretary Carnahan’s ballot title’s summary statement. The Missouri Court of Appeals stated that the test for appropriate ballot title summary language is not whether the Secretary of State’s language is the best language but rather “whether the language fairly and impartially summarizes the purposes of the [initiative.]” Bergman[v. Mills, 988 S.W.2d 84(Mo. App. W.D. 1999)], 988 S.W.2d at 92. Within the confines of the 100-word limit, the summary “need not set out the details of the proposal.” United Gamefowl Breeders Ass’n of Mo., 19 S.W.3d at 141.”

Possible effect on Asher’s Challenge

My review is cursory because Asher’s argument has not been presented, but based on this case, Secretary Carnahan has a good chance to survive Asher’s ballot title challenge. The ballot title that Asher proposes is the first clause of his group’s proposed amendment to Missouri’s Constitution. Asher’s ballot title summary language is vague and does not describe what MoCRI’s initiative would do if approved by the voters.

The purpose of MoCRI’s initiative is really what Secretary Carnahan’s ballot title summary language stated.

The Asher v Carnahan case is an interesting. I hope to see the arguments of the parties and the decision of the court.