Indirect Initiative and Unpopular Referendum in Missouri.

• Date: 22 March 2021
• Author: Johanson, Gunnar

Pippens v. Ashcroft, 606 S.W.3d 689 (Mo. Ct. App. 2020).

1. INTRODUCTION

   Most governments in the United States operate as a representative democracy through elected officials. Over time, advocates have successfully reformed many of our institutions to give citizens themselves more power through direct democracy. The direct election of United States Senators, the presidential primary, recall, the direct initiative, and popular referendum are all developments in the governments of the United States that place power directly in the hands of voters. Direct initiatives and popular referendums, specifically, are lingering evidence of the Progressive Era of the 1900s. (1) Like most reforms of that time, proponents of direct initiative and popular referendum believed it would aid in breaking up concentrated political power in corporations and their enablers in the state legislatures. (2) Almost half the states instituted direct initiative and popular referendum before 1920. (3)

   Direct initiative and popular referendum generally describe tools of direct democracy that vary from state to state; there is no national initiative or referendum process. (4) The direct initiative process enables citizens to propose a new or amended law, independently of the state legislature, often by popular vote in a statewide election. (5) Popular referendum, by contrast, "allow[s] voters to approve or repeal an act of the legislature." (6) Initiatives can be statutory or constitutional. (7) Direct initiative proponents frequently prefer constitutional amendments as most states do not allow the legislature to unilaterally alter the constitution, whereas most legislatures can change statutes as they wish, thus providing additional protection to their proposal. (8) Many states also allow legislatively referred - or indirect - initiatives where the state legislature is permitted to place a proposal on the ballot for voter approval. (9)

   Missouri voters encountered initiative and referendum in the voting booth on November 3, 2020, when deciding on Amendment 3. (10) Amendment 3 was the result of a legislature growing increasingly weary with Missouri's direct initiative process and weaponizing citizens' tools for democracy. (11) The proposed constitutional amendment was an indirect initiative, referred to voters by the legislature. However, this Note argues that the description of Amendment 3 as an "unpopular referendum" is more fitting. Where a popular referendum describes a citizen-led effort to repeal the will of the legislature, "unpopular referendum" should describe a legislature's effort to repeal the will of the people. Amendment 3 aimed to repeal a direct initiative, known as "Clean Missouri," approved by voters less than two years earlier. (12) The 2020 measure survived considerable legal challenge. The resulting case highlights the flaws in Missouri's initiative and referendum processes and the weak judicial protections afforded to the procedures.

   In this Note, Part II introduces the case of Pippens v. Ashcroft which exemplifies the political tug-of-war occurring with the Missouri initiative process. Part III explores how the Missouri legislature's will often conflicts with voters' wants and how elected officials' mal-intent is becoming increasingly apparent. Part IV examines several measures from other states that, if adopted, would protect the initiative process in Missouri from such mal-intent and abuse. Finally, Part V analyzes the government's role in the judicial review and drafting of ballot language which could ease the conflict in Pippens and strengthen Missouri's initiative process.

2. FACTS AND HOLDING

   To sufficiently understand the facts of Pippens, an examination of "Clean Missouri" is required. On November 6, 2018, Missouri voters approved Constitutional Amendment No. 1. (13) Supporters of this proposal nicknamed it "Clean Missouri." (14) This amendment was proposed by the direct initiative petition process, where Missouri citizens independently propose legislation for the ballot through the collection of signatures. (15) "Clean Missouri" made multiple revisions to Article III of the Missouri Constitution which established the legislative branch, or the General Assembly, of the Missouri state government. (16) The amendment focused primarily on ethics reform and on the process of drawing legislative districts,

   known as apportionment. (17)

   "Clean Missouri" provided for substantial modifications to the apportionment process for state House and Senate districts. (18) It established a new state position known as the "nonpartisan state demographer" who was charged with preparing proposed legislative redistricting plans and maps following the decennial census. (19) The nonpartisan state demographer was also given criteria to govern the designing of said districts. (20) The demographer had to give the districts a "total population as nearly equal as practicable to the ideal population for such districts." (21) Specifically, "Clean Missouri" required that districts be designed in a manner that achieves both partisan fairness and competitiveness. (22) The demographer also had to consider geographic contiguity, the boundaries of existing political subdivisions, and the compactness of the proposed districts. (23) However, these considerations are subordinated to consideration of equal populations, compliance with federal law, and partisan fairness and competitiveness. (24)

   "Clean Missouri" largely retained the procedure, enacted before its passage, where the Governor selected House and Senate reapportionment commissions. (25) As provided by the revisions, the commissions could then make modifications to the demographer's proposed plan and map by a vote of at least seven-tenths of the commissioners. (26) If no modifications were made, the plan and map would become final. (27) These citizen-proposed changes were widely accepted by Missouri voters and passed with sixty-two percent of the vote in November 2018. (28)

   In 2020, the General Assembly set out to undo "Clean Missouri." In its regular session that year, the General Assembly passed Senate Joint Resolution No. 38 ("SJR 38") which submitted to voters a legislatively referred constitutional amendment which modified the features of 2018's "Clean Missouri" ballot initiative. (29) Its provisions were complex and comprehensive, affecting Missouri's ethics laws and its redistricting processes. The General Assembly passed SJR 38 on May 13, 2020, largely along party lines. (30) It appeared on the November 3, 2020, General Election Ballot as Amendment 3. (31)

   The General Assembly has the prerogative to draft the official summary statement for legislatively referred constitutional amendments, like Amendment 3. (32) The summary statement is the language that appears on ballots. The legislature's summary statement proposed to ask voters:

   Shall the Missouri Constitution be amended to:

   * Ban all lobbyist gifts to legislators and their employees;

   * Reduce legislative campaign contribution limits; and

   * Create citizen-led independent bipartisan commissions to draw state legislative districts based on one person, one vote, minority voter protection, compactness, competitiveness, fairness, and other criteria? (33)

   The resolution was challenged in the courts by proponents of "Clean Missouri" almost immediately. (34) On May 18, 2020, eight Missouri citizens ("Challengers") filed suit against the Missouri Secretary of State and the leaders of the General Assembly as permitted by Missouri statute. (35) The challengers argued that each of the three bullet points in the official ballot language drafted by the General Assembly for Amendment 3 were insufficient and unfair as they did not clearly communicate to voters that Amendment 3 would largely repeal and replace "Clean Missouri." (36) The petition prayed for the circuit court to vacate the existing summary statement and either order the General Assembly to prepare a new one, or certify a replacement statement that they proposed. (37) On August 17, 2020, the circuit court entered its final judgment, agreeing with the challengers that all three bullet points in the General Assembly's proposed summary statement were insufficient and unfair. (38) The circuit court vacated the General Assembly's statement and certified an alternative summary statement which the court drafted itself: (39)

   Shall the Missouri Constitution be amended to:

   * Repeal rules for drawing state legislative districts approved by voters in November 2018 and replace them with rules proposed by the legislature;

   * Lower the campaign contribution limit for senate candidates by $100; and

   * Lower legislative gift limit from $5 to $0, with exemptions for some

   lobbyists? (40)

   The defendant filed his Notice of Appeal on August 18, 2020, and oral argument was presented on August 28, 2020, in the Missouri Court of Appeals for the Western District. (41) The Court affirmed in part and reversed in part the circuit court's judgment. (42)

3. LEGAL BACKGROUND

   Missouri has a long and storied history with direct initiative and popular referendum. Both processes were added to the state's constitution at the height of the Progressive Era in 1907 and have provided for some of Missouri's most prominent policies. (43) For example, in 1936, Missouri citizens voted to create a Conservation Commission - which now oversees the Missouri Department of Conservation - to manage fish, game, and forest resources. (44) In 1940, a constitutional amendment was passed through an initiative petition that established a nonpartisan system for nominating, appointing, and retaining judges. (45) This is now known as the "Missouri Plan" for judicial selection and has served as the model for several states. (46) In recent decades, initiatives and referenda have resulted in meaningful policy initiatives that affect the daily lives of Missouri citizens. Over one hundred ballot initiatives have been proposed by Missouri...