ACRI Ballot Initiative (Missouri): In a Potentially Precedent Setting Case, Court Rewrites Ballot Title; Secretary of State Carnahan Plans to Appeal

In Asher v. Carnahan (see this post for background information) , the court rewrote the ballot title for the ballot initiative proposed by the American Civil Rights Institute (ACRI). The new ballot title as the court wrote it is:

Shall the Missouri Constitution be amended to:

 

Ban state and local government affirmative action programs that give preferential treatment in public contracting, employment, or education based on race, sex, color, ethnicity, or national origin unless such programs are necessary to establish or maintain eligibility for federal funding or to comply with a court order ?

The court determined that a portion of the ballot title is insufficient and unfair, citing the court case, Missourians Against Human Cloning v. Carnahan. The court reasoned that the second part of the ballot title was not consistent with the first part of the ballot title.

The second bullet point in the Secretary’s summary states that the proposed amendment will:

 

“allow preferential treatment based on race, sex, color, ethnicity, or national origin to meet federal program funds eligibility standards…”

 

It is this second bullet point which the Court finds troubling because it suggests that the proposed amendment is first going to do away with one class of preferential treatment programs, i.e. affirmative actions programs, and then replace the affirmative action programs with some other kind of preferential treatment programs.

However, in the Human Cloning case, the Missouri Supreme Court also advised that courts must exercise caution in acting in pre-election ballot titling issues.

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 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 court did not address this part of the Human Cloning case in deciding to rewrite the ballot title.

The question now is whether the court’s action to rewrite the ballot title is allowable under the Missouri statutes, sec. 116.190.4, given the Missouri Supreme Court’s rule of caution.

Secretary of State Robin Carnahan stated that her office intends to appeal the court’s decision.

This is an interesting case, as this case represents the first time that a court in Missouri rewrote a ballot title.

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