Opponents also challenged the constitutionality of the ballot question
JEFFERSON CITY, Mo. – Opponents are again claiming in legal filings that the Early Childhood Health and Education Amendment should not be allowed to go forward because it is unconstitutional and because the initiative petition was not distributed under the the official ballot title.
The proposed amendment would fund early childhood education by reforming Missouri’s tobacco tax code, essentially raising taxes on small tobacco manufacturers not subject to the Master Settlement Agreement.
As part of an ongoing legal battle over the initiative petition, earlier this month a state appeals court rewrote the proposal’s summary and changed its official ballot title. However, Secretary of State Jason Kander asked statewide election officials to continue the process of certifying signatures collected for the initiative petition.
Monday, a petition for relief was filed asking the court to prohibit Kander from counting the signatures. Kander faces an Aug. 9 deadline to finalize the petition for the ballot.
“Unfortunately, Secretary of State Kander has chosen to ignore the Court of Appeals and the law and will allow Big Tobacco’s outrageous and unfair 750 percent tax increase on the November ballot if they have submitted enough valid signatures,” said Ron Leone, executive director of the Missouri Petroleum Marketers and Convenience Store Association. The MPCA opposes this initiative petition, but supports one that would raise tobacco taxes to support highway infrastructure funding.
“I think everybody anticipated that there would have to be another court ruling on whether the signatures would count, so that’s what we’re trying to get there,” said Chuck Hatfield, the attorney for Jim Boeving, the lawsuit’s plaintiff.
Raise Your Hand for Kids, which collected the signatures for the petition, refuted the plaintiff’s position. They said that the petitions were collected and submitted under what was then the official ballot title, and that’s what matters.
“When it was submitted, that was the official ballot title. We think the statute is very clear about that,” said Jane Dueker, who represents Raise Your Hand for Kids. “At submission it was defined. To retroactively take that away, would be to violate the citizens’ constitutional right to initiate.”
A second filing Friday attacked the amendment over a separate issue: the constitutionality of its contents. Earlier in the legal battle over the initiative petition, a judge ruled that these issues were not yet “ripe” for discussion. But with Kander’s decision to continue the process of certifying the signatures, opposition lawyers decided now was the right time to challenge the petition on content.
Dueker contested the timing, saying that the courts have been clear that the time to challenge the content of an initiative petition is after a ballot measure has been voted on by the people.
“The only time the court steps in is if there is something facially invalid as to make it completely inappropriate for the ballot. None of these challenges have that,” she said. “The courts have been very clear as to which challenges come before an election and which come after. They want to put the cart before the horse because they have to. They realize that if this hits the ballot, Missourians care about kids and they can’t go against the will of the people once this hits the ballot.”
The lawsuit was filed on behalf of plaintiff Patty Arrowood, owner of a tobacco and candy store in Joplin.
Among opponents’ chief constitutional concerns are that the petition would unconstitutionally appropriate existing revenues, the petition would direct state revenues towards private and religious institutions and the petition would unconstitutionally amend multiple articles of the constitution at the same time.
“You can never appropriate by initiative, period,” said Hatfield, who also represents Arrowood. “They can amend the section that talks about using money for religious purposes, but what you can’t do is go have a whole nother constitutional section that violates something that’s already on the books.”
Dueker said that assertion was false.
“It doesn’t appropriate money and it doesn’t require the appropriation of any existing funds,” she said. “I don’t know what hypothetical they’re trying to come up with but there is nothing in there that indicates that money that was ever collected under any other authority will be appropriated.”
For the petition to accomplish everything that it enumerates, it would probably require multiple ballot questions over several elections, Hatfield said.
“I think that’s the way it’s supposed to work so that people understand exactly what amendments they’re voting on,” he said. “You can’t have multiple subjects in an initiative and you can’t go just amending multiple sections of the constitution.”
But Dueker didn’t see where the ballot was amending multiple sections in the constitution. She also hit back against the reason the lawsuit was brought. She said the petitions opponents aren’t trying to protect the process but protect their profits.
“They’re not making these arguments because they want the law to work right. They’re making these arguments because they don’t want to be subjected to it,” Dueker said.
“Obviously their true colors are coming out. This is about them protecting their profits over kids.”