The questions argued Wednesday at the Missouri Supreme Court involved abstract points of law, but the answers the judges deliver will decide who controls the ballot language voters see and how challenges to state law proceed.
Last year, lawmakers revised the process for challenging ballot language and, in the same legislation, gave the attorney general power to appeal preliminary injunctions blocking enforcement of state laws or regulations.
Cole County Circuit Judge Daniel Green upheld the provisions on ballot language lawsuits but ruled the new appeals power was an impermissible grant of authority because it was limited to the attorney general.
“There is no compelling governmental interest achieved in allowing only the attorney general to appeal a preliminary injunction where a court has found that a challenged state law is flawed and granted injunctive relief,” Green wrote in his September decision.
In the appeal heard Wednesday, the attorney general’s office sought to undermine the case against the law by arguing that the plaintiff, liberal activist Sean Nicholson, had no standing, or right to sue, over the law. And, Deputy Solicitor General Samuel Freedlund argued, the court should rule that all the provisions of the law fit easily under the general heading of “judicial proceedings.”
When the bill was filed in the state Senate, its title said it was about ballot titles written by the General Assembly. The title was changed to be the broader “judicial proceedings” when the bill was amended on the Senate floor.
“The original bill, as introduced, effected judicial proceedings related specifically to ballot title litigation, but this court has made clear, time and time again, that it’s whether the amendments are germane to the overarching purpose,” Freedlund said.
Those arguments ignore constitutional provisions requiring bills to have a single subject, with a clear title, and that everything included in a final version bear a relationship to the subject addressed when the bill was introduced, said Chuck Hatfield, the attorney representing Nicholson.
The legislation, as passed, combined two bills with different subjects and changed provisions of law in two of overarching titles used to organize the statutes, Hatfield noted.
“We think that all of those things point out that the legislature has told us that these were different subjects, these were different purposes,” Hatfield said.
To address the constitutional questions, however, the judges must first resolve whether Nicholson has standing.
Hatfield reminded the court that it has liberally applied the principle of standing in past challenges to state law.
A person has a right to sue if they are specifically impacted by a new law. The courts also allow any taxpayer to sue if legislation will result in the spending of state funds.
Nicholson satisfies both requirements, Hatfield said. He is a campaign consultant working on ballot measures, so he has a specific interest in how ballot language is determined, he said.
And taxpayer standing doesn’t depend on an identifiable new expense, just that enforcement will cost money, he said.
“You don’t have to show it is tied to a very specific, ‘This amount of money is going to go out the door for this particular thing,’” Hatfield told the judges.
Freedlund, however, said Nicholson was not the correct plaintiff because he is not involved in any pending cases on ballot language and there is no new, direct expense as a result of the law.
“Taxpayer standing requires some sort of direct expenditure,” he argued.
The law is part of a coordinated Republican reaction to liberal ballot initiatives approved by voters enacting laws and constitutional amendments the GOP would not pass through the legislature.
Over the past decade, voters have legalized marijuana, expanded Medicaid eligibility, increased the minimum wage and enacted protections for abortion rights over GOP opposition.
Other legislation to limit the initiative petition process includes a constitutional amendment to change the way majorities are counted that will be on the November ballot and limitations on who can be hired to circulate petitions.
Ballot title challenges are common for both initiative petitions and measures approved for the ballot by lawmakers. Before the new law, if a judge found the ballot language was insufficient or unfairly partisan, the court would revise it.
Under the law, a finding against ballot language means it goes to the secretary of state, who is given up to three chances to rewrite it before the courts take over the job.
The bill’s provisions governing the revision of ballot language are a reaction to the legal fight over the wording for the abortion rights amendment approved by voters in 2024.
In 2023, Cole County Circuit Judge Jon Beetem ruled the ballot title written by then-Secretary of State Jay Ashcroft was “argumentative” or unfairly biased and rewrote it. That decision was upheld by the Missouri Western District Court of Appeals.
The first use of the new law was during a challenge to the ballot language written for a constitutional amendment passed by lawmakers that would reimpose Missouri’s near-total ban on abortions. Green rejected the original ballot language written by lawmakers. He approved the second revision made by Hoskins, but that version was rewritten again by the Western District Court of Appeals when it ruled the wording drafted by Hoskins was riddled with errors.
The abortion rights amendment from 2024 was also the spur to lawmakers for the language granting special appeal power to the attorney general.
Planned Parenthood and the ACLU of Missouri sued the state over laws and regulations that prevented Missourians from immediately accessing abortion following the election.
Jackson County Judge Jerri Zhang found some of the regulations to be unconstitutional under the new abortion rights law and, in two preliminary injunctions, blocked state laws requiring a 72-hour waiting period for abortions, requiring physicians performing abortions have admitting privileges at a local hospital, and requiring a licensing requirement for abortion clinics.
That allowed surgical abortions to resume but medication abortions, the most common way of ending a pregnancy, are still off-limits.
The case goes to trial next week.
In court on Wednesday, Freedlund defended the grant of power to the attorney general as a reasonable way for the state to protect its interest in seeing that new laws are enforced.
Green’s ruling incorrectly interpreted how to determine if a law provides equal protections to all people when he ruled against the law, Freedlund said.
“It’s critical that the circuit court erred at every single step of the analysis, in our view, and any one of those errors was fatal to the trial court’s judgment,” he said.
In his arguments about the powers of the attorney general, Hatfield focused on whether the entire bill should have been tossed out by Green when he found the provision on preliminary injunctions to be unconstitutional.
Instead, Hatfield said, Green severed the bill, allowing the ballot title sections to remain intact while blocking the appeal power section.
Green got that wrong, he said, adding that it will be up to the judges to decide which, if any, provisions remain in law.
“So at the end of the day, like a lot of your cases,” Hatfield said, “this is sort of about line drawing.”
This was first published by the Missouri Independent, a nonprofit, nonpartisan news organization covering state government, politics and policy, and is reprinted with permission.