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Ashcroft must approve abortion referendum for circulation, appeals court rules


KANSAS CITY, Mo. — The secretary of state acted outside his purview in rejecting a referendum petition on constitutional grounds, a Missouri appellate court ruled. 

On Monday, just hours after hearing oral arguments in the case, the Western District Court of Appeals ordered the state to withdraw its rejection of the petition based on constitutional grounds. The court also ordered written notice “immediately” be sent to the ACLU of Missouri approving the referendum as sufficient to form — which will allow the collection of signatures to begin once sample ballot language is issued. 

“The Secretary of State was without authority under section 116.332 to reject the Sample Sheet on constitutional grounds,” the 31-page decision states. “The Secretary of State identified no issues relating to the sufficiency as to form of the Sample Sheet, and concedes in these proceedings that the only basis for rejecting the Sample Sheet was on constitutional grounds. The Secretary of State was thus obligated by section 116.332 to approve the Sample Sheet as sufficient as to form, as defined by section 116.030.”

The Secretary of State’s Office declined to comment at this time. The ACLU applauded the decision.

“The Missouri Legislature and Secretary Ashcroft tried to block two constitutional rights — the right of the people to challenge a state law through referendum and the right of the people to receive an abortion,” said Tony Rothert, legal director for the ACLU of Missouri. “Blocking the ballot box was a cowardly move designed to silence the people’s voice. We are pleased with the court’s decision and will evaluate next steps in ensuring this law does not go into effect.” 

The state and the ACLU requested the case be transferred to the Missouri Supreme Court. Both requests were denied.

The ACLU filed the lawsuit against the state after Secretary of State Jay Ashcroft rejected a referendum petition on a sweeping anti-abortion bill. Cole County Judge Dan Green dismissed the legal challenge with prejudice last month.

Ashcroft said he rejected the petition “for failure to comply with the requirements of the Missouri Constitution.” At the same time, he also rejected another similar referendum petition filed by Lowell Pearson on behalf of GOP megadonor David Humphreys.

The issue with both petitions, according to Ashcroft, is the emergency clause attached to the bill. The emergency clause resulted in a portion of the bill going into effect immediately after Republican Gov. Mike Parson signed it.

The provision in effect is the requirement for both parents to be notified of a minor seeking an abortion.

The vast majority of the provisions — banning abortion at eight weeks, along with “nestled” components to include restrictions at 14, 18, and 20 weeks should a court overturn a portion of the law, and an outright abortion ban if Roe v. Wade is overturned — will go into effect on August 28.

The ACLU contended in the appeals court that rejecting the petition based on constitutional grounds was outside of Ashcroft’s authority under the law. The appeals court sided with the ACLU.

The ruling by the appellate court makes no decision on the emergency clause.

“To be clear, this Opinion expresses no opinion about, did not need to decide, and does not decide, whether the emergency clause applicable to section 188.028 of HB 126 is self-actuating to defeat the constitutional power of referendum or is subject first to a judicial determination of its legitimacy; or whether the emergency clause applicable solely to section 188.028 of HB 126 defeats the power of referendum for the remaining sixteen provisions of HB 126 which are not subject to emergency clauses,” the opinion states.

Once sample ballot language is issued by the Secretary of State’s Office, the ACLU will need to gather and submit signatures from 5 percent of legal voters in six of eight congressional districts — at least 100,126 Missourians — by August 28 to put it on the ballot.