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ACLU Victory Clears The Way For More Missouri Referendums

Pro-choice supporters on Friday protest in the Missouri Capitol. The legislature sent a bill banning abortions after eight weeks to Gov. Mike Parson to sign. May 17, 2019
File photo / Carolina Hidalgo / St. Louis Public Radio
St. Louis Public Radio
Pro-choice activists protest in the Missouri Capitol in May 2019. The bill they objected to was signed into law and later dodged a referendum attempt under a process a Cole County judge has now ruled unconstitutional.

If Missouri voters dislike the actions of their state government, the state constitution offers a reprieve. Any citizen can call for a referendum by circulating petitions to overturn the actions of their elected representatives. So long as they gather enough valid signatures, the voters get to decide whether the law stands.

But getting enough signatures is extremely difficult. Not only must citizens gather more than 100,000 — with a sampling from at least six different congressional districts — they must do so within 90 days of the last day of the legislative session that saw the bill at issue approved. If legislation is passed at the very end of the session, the clock is already ticking.

It gets even harder from there. State law gives the secretary of state 51 days to complete various tasks before the petitions can begin to circulate. In reality, that leaves referendum seekers on end-of-session bills just 49 days to gather signatures, as the ACLU of Missouri argued in a lawsuit filed last year.

Since 1997, only one referendum has made the ballot, said Tony Rothert, legal director of the ACLU of Missouri: a repeal of Right to Work legislation signed by then-Gov. Eric Greitens. Voters overwhelmingly said “yes” to the repeal.

“What these statutes do is they effectively make it impossible for someone to put a referendum on the ballot,” Rothert said on St. Louis on the Air. Only legislation passed at the very beginning of a session — which was the case with Right to Work in 2018 — need fear repeal.

“When the Legislature passes something controversial, all they have to do is do it on the last day,” he said. “And with these statutes, the Legislature effectively took away the veto that we the people retained in the [state] constitution over the Legislature.”

The nonprofit group No Bans on Choice experienced the impossibility last year. It sought to referendum the state’s 2019 abortion law, which effectively banned abortions after eight weeks of pregnancy. Despite intensive efforts, the group couldn’t gather signatures in time to force a vote.

So the ACLU of Missouri sued. Its suit against Secretary of State Jay Ashcroft took aim at the laws giving him 51 days to accomplish various tasks before releasing petitions for the gathering process. Those laws unconstitutionally blocked citizens’ right to a referendum, the suit claimed.

Last Friday, Cole County Circuit Judge Jon Beetem agreed.

“These statutes operate to dramatically reduce the time available for the circulation of a referendum petition, both in theory and in practice,” he wrote. “That significant reduction of the time available for the circulation of a referendum petition interferes with and impedes referendum right.” Now his simply stated 15-page verdict could have a big impact on when, and how, citizens challenge the actions of their state government.

In a written statement, Ashcroft suggested he will appeal:

I am thankful that the Judge ruled and held that I was following the law as written, and any unconstitutionality was due to the law itself; it would have been a dereliction of my duty not to follow the law as written, passed and signed by the Governor.

The right of referendum in the Constitution is designed to ensure the people have the right to vote on statutory changes, holding their legislators accountable to the people. However, inherent in that is the right for voters affixing their signatures to know clearly what they are asking the people to decide.

The idea that our office can accept a page of signatures for a referendum petition that doesn’t even have a simple, concise explanation of what the voter signed is illogical.

Rothert said he does expect an appeal. Even so, absent a stay by Judge Beetem or the Missouri Supreme Court, Rothert said the state laws giving the secretary of state 51 of the 90 days are no longer in effect.

“What it means is people will be able to collect signatures right away,” he said. “Right after the governor signs the law, if you want to put a referendum on the ballot to challenge a piece of legislation, you will have the full 90 days that the constitution intended, or longer.”

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Lara Hamdan. The audio engineer is Aaron Doerr.

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Sarah Fenske served as host of St. Louis on the Air from July 2019 until June 2022. Before that, she spent twenty years in newspapers, working as a reporter, columnist and editor in Cleveland, Houston, Phoenix, Los Angeles and St. Louis.