Secretary of State Denny Hoskins wants the courts to shield him from disclosing how his office is reviewing a disputed batch of signatures on a referendum petition challenging the state’s new congressional map.
In a lawsuit filed Monday, Hoskins is suing People Not Politicians, the political action committee pushing for a referendum. Hoskins is asking the court to declare that he does not have to fulfill a Sunshine Law request from Emily Gerber, deputy director of the PAC, because the records being sought are protected from disclosure as public records because there is ongoing litigation over the information they contain.
“The secretary’s determination that the records were closed at the time of Ms. Gerber’s request was based on the nature of the records as being related directly to pending litigation, not on the identity of the requester,” Assistant Attorney General Kate Walker wrote.
Local election officials go with Missouri’s gerrymandered congressional map despite uncertainty
The lawsuit was filed, she wrote, because the Sunshine Law allows government entities to ask the courts whether a decision to withhold records was correct.
The lawsuit is just the latest of a dozen that have challenged the gerrymandered redistricting map that Republicans forced through the Legislature in September. People Not Politicians began collecting signatures to force a statewide vote on the map as soon as the special session adjourned and submitted more than 300,000 signatures to Hoskins’ office on Dec. 9.
Hoskins, however, decided he only needed to send pages with signatures added Oct. 14 or later to local election authorities for validation.
Preliminary reports posted on Hoskins’s office website and tallied by People Not Politicians indicate the referendum has surpassed the minimum number of signatures needed in enough congressional districts to qualify for the ballot.
Gerber’s Sunshine Law request asked for records detailing what had been done — if anything — to check signatures on the pages Hoskins withheld.
When Hoskins denied the request, attorney Alexander Barrett disputed the decision that the records were closed because of ongoing litigation. The records are routine and should always be considered public, he wrote.
“They are not legal memoranda, attorney work product, or privileged communications with counsel,” Barrett wrote. “They do not concern or arise from any litigation. They are precisely the type of records that document the functioning of government and that the Sunshine Law was enacted to make available to the public.”
The lawsuit means there must be something Hoskins doesn’t want the public to see, Chuck Hatfield, People Not Politicians’ attorney, said in an interview Tuesday with The Independent.
“What we’re looking for is, ‘Are you doing anything with the ones that you have not sent out?’” Hatfield said. “Apparently there are some documents that show that they’re doing something, and they won’t give them to us.”
Asked why the lawsuit was filed, Hoskins spokeswoman Anne Marie Moy noted the law allowing government agencies to initiate lawsuits over decisions to close records. She also provided the letter Hoskins sent to Attorney General Catherine Hanaway asking that the lawsuit be filed.
“My office wishes to comply with the law, but has doubts over whether the documents requested are closed pursuant to this section,” Hoskins wrote. “We ask you to bring a declaratory judgment action on our behalf to resolve these doubts and to provide clarity in future situations involving similar issues.”
The lawsuits that have been finally decided — most by the Missouri Supreme Court — have determined that a governor has broad discretion on what needs attention in a special session and that congressional district lines can be changed whenever the Legislature decides it is necessary.
The map drawn last year with the intent of flipping Missouri’s 5th Congressional District to the Republican Party meets constitutional standards, the Supreme Court ruled May 12. In a separate decision, the court decided it could not determine whether the new map is in effect or whether it was suspended on Dec. 9 when signatures were delivered.
That, the court said, will only be known when Hoskins announces whether it has sufficient signatures and that it is a legal use of the referendum power.
The map added 14 counties to the 5th District in the effort to bring in enough Republican voters to defeat U.S. Rep. Emanuel Cleaver, a Kansas City Democrat. Those changes forced boundaries of other districts to be redrawn. In all, voters in 28 counties will be voting in new congressional districts in the Aug. 4 primary.
The law does not require Hoskins to make his decision before Aug. 4.
The litigation cited in the new case was filed last year by People Not Politicians to force Hoskins to send the withheld signatures to local election authorities for validation. In that case, Cole County Circuit Judge Christopher Limbaugh put his decision on hold pending the results of the signature verification on the portion that was submitted to local election authorities.
Nothing in the Sunshine Law requires that any record be closed. Government agencies are allowed to close some records but can release them if they wish, Hatfield said in the interview..
“Regardless of whether the law has some technical issue that they could withhold them, why would you not want to tell the public what you’re doing?” he said. “You should be open and transparent with it.”
One of the few redistricting cases that remains pending is a lawsuit filed in May by People Not Politicians arguing that Hoskins is waiting to make a decision so that this year’s elections will use the new map regardless of whether there is a referendum on it.
“He is intentionally delaying completion of his statutory duties in order to implement (the redistricting map) without judicial review,” Hatfield wrote in the petition.
Cole County Circuit Judge Daniel Green has set a hearing for July 15 to schedule a trial.
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