Court fights may keep most initiative-petition proposals off the November ballot
This article first appeared in the St. Louis Beacon, April 23, 2012 - A few months ago, more than 140 initiative-petition proposals were approved for circulation, and Missouri voters faced the prospect of a dozen or more issues on this fall’s ballot.
But now, with just a couple weeks left to go, most of the petition backers are spending their time in the courts — not on the streets.
Opponents have gone to court challenging the initiatives on various grounds, most of them dealing with the “ballot summary” drawn up by Secretary of State Robin Carnahan’s office or the “fiscal impact note” submitted by state Auditor Tom Schweich’s staff.
The ballot summary and fiscal note are mandated by state law. In most cases, the court fights stem from critics’ assertions that the summary or financial note is inaccurate or incomplete.
But one judge recently ruled that Schweich’s office didn’t have the constitutional power to write fiscal notes. That apparently has prompted Schweich to order his staff to stop writing them until a legal appeal is complete.
The flurry of court fights — more than seen in decades — could prevent most of the major proposals from getting on the ballot, in some cases by simply delaying the efforts to collect the necessary signatures. Backers must submit by May 6 tens of thousands of signatures needed to make the Nov. 6 ballot.
Carnahan has until Aug. 7 to certify or reject the various proposals based on the number and validity of signatures from registered voters.
In some cases, the court dates for the suits have been set for right before — or right after — the deadline to submit signatures.
“All of the major initiatives that appear to have real support are in trouble,” said lawyer Chuck Hatfield, who’s representing most of the opposition to almost all of the major proposals.
“It’s not easy to gather your signatures,” he said. “When you run into significant legal hurdles, it’s an extremely big hill to climb.”
So far, only one group has beat the deadline while still facing a court fight. That’s the effort to grant St. Louis local control of its police department after 150 years of state oversight.
The pro-local control group, the Safer Missouri Citizens Coalition, submitted more than 164,000 signatures from registered voters several weeks ago, almost twice the roughly 98,000 needed. Carnahan’s office is now sending the signatures out to county clerks across the state to verify their authenticity.
The other major initiative-petition proposals include:
- Increasing Missouri’s minimum wage to $8.25 an hour or to the federal minimum wage if it becomes higher. The federal and state minimum wage is now $7.25 an hour.
- Raising Missouri’s tobacco tax, now the lowest in the nation, to 90 cents a pack, and to 25 percent of the weight of other tobacco products. Similar proposals were defeated in 2002 and 2006.
- Reducing the interest rate allowed for payday loans to 36 percent. Interest now can be over 400 percent annually.
- Eliminating Missouri’s income tax and replacing it with a higher sales tax.
Here's a brief summary of the key initiatives and their status:
A spokeswoman for the American Cancer Society, which supports the tobacco-tax hike, says that the coalition — made of several health-related groups — will turn in enough signatures by the May 6 deadline.
A key difference in this year’s proposal, she said, is how the estimated additional $280 million raised by the higher tobacco taxes would be the spent. The proposal calls for 80 percent of the money to be allocated to public or higher education, with the rest for smoking prevention and cessation programs.
Convenience-store and petroleum dealers groups oppose the hike, saying it will hurt small business. Missouri Attorney General Chris Koster and U.S. Sen. Claire McCaskill, D-Mo., have expressed support for increasing the tobacco tax.
Church groups are collecting signatures on the proposal to curb the interest rates on payday loans, often used by lower-income people who can’t qualify for lower-interest bank loans.
Pastors and others affiliated with Missourians for Responsible Lending participated in a door-to-door canvass in St. Louis. The group contends that the high rates are unfair to poor people.
Hatfield represents the payday loan industry, which opposes the cap and contends that it will result in fewer loans for people who can’t otherwise obtain loans.
Sean Nicholson, a spokesman for Progress Missouri — part of the Missourians for Responsible Lending coalition — said supporters will submit signatures before the May 6 deadline. “We're on pace,” he said.
Supporters of a higher minimum wage, Give Missourians a Raise, also say they are on track to turn in adequate signuatures by May 6. The coalition includes unions, progressive groups and some churches. Backers say the effort will improve wages for working people. Business groups oppose the proposal, saying that it will result in lost jobs.
The minimum-wage debate hasn't generated as much publicity as many of the other initiative-petititon drives.
Income tax versus sales tax
In contrast, the battle over the proposal to replace Missouri’s income tax with a broader and higher sales tax has been very high profile.
The proposal calls for phasing out the state’s 6 percent income tax and phasing in a sales tax of no more than 7 percent. The state’s sales tax is now 4 or 4.225 percent.
A group called Let Voters Decide has been leading the initiative petition effort, which is largely funded by wealthy financier Rex Sinquefield, who resides in St. Louis and mid-Missouri.
Sinquefield contends that the change would lead to more businesses, and more jobs, locating in Missouri. Critics have dubbed the broader sales tax “the Everything Tax” and say that it would shift the tax burden to middle- and lower-income people, while also bringing in less money to the state, forcing more cuts in programs.
Sinquefield recently acknowledged that the petition drive may be dropped for this year’s ballot, and resurrected in 2014 or later. Spokesman Travis Brown has made similar comments.
But one of the group’s legal advisors, former state Democratic Party chairman John Temporiti, indicated that no final decision has made.
Temporiti’s involvement has touched off interest, and some criticism, from fellow Democrats.
Temporiti said in an interview that Sinquefield asked him to provide a Democratic perspective on the proposed tax change. Temporiti confirmed that he is being paid a consulting fee of $7,500 a month; the most recent campaign-finance reports show he has been paid close to $50,000 since last November.
Temporiti told the Beacon that he supports the general idea of the tax change and believes it will spur economic development. But he wants to make sure that the final proposal does not result in a decline in income to state government.
Schweich halts fiscal notes over suits
Schweich is upset by all the suits challenging his office’s fiscal notes — so much so that last Tuesday he issued a memo to the top staff declaring that he was imposing, in effect, a temporary moratorium on issuing any more fiscal notes.
The auditor wrote that until the court battles are resolved, his office will simply issue statements stating that it’s “impossible to assess the fiscal impact” of the ballot proposals.
Such action could kill the chances that some initiatives would make the ballot this fall because state law requires a fiscal note assessing the financial impact of the initiative on government bodies, local or state.
In the memo, obtained by the Beacon, Schweich laid out what he saw as the challenges caused by this year’s flood of initiatives — and lawsuits.
“During this election cycle, our office has received 144 initiative petitions, compared to just 16 received in the 2004 election cycle,” he wrote. ”Under the law, we have only 20 days to prepare the fiscal impact note for each submission and our ballot summary is limited to 50 words.
“Moreover, during this election cycle, we have been sued 36 times regarding these petitions, and Secretary of State Robin Carnahan has been sued even more often than our office,” he continued.
“These lawsuits are often financed by lobbyists with substantial resources whose only apparent goal is to prevent Missourians from ever voting on these matters. I believe they have no interest in an accurate fiscal note and that they only want to protect their own financial interests by obstructing the initiative process. Their efforts have cost Missouri taxpayers and this office significant time and resources.”
Schweich then laid out the basics of suits challenging his fiscal notes and observed, “I cannot justify wasting taxpayer resources in an effort to do so until we have significant clarification from the courts or the legislature.”
His action, or lack of it, may affect this year’s initiatives, Schweich acknowledged. He then added, “The good news is that we have appealed or will appeal” all the court decisions “and hope to have clearer guidance before the next onslaught of initiative petitions.”
Hatfield, by the way, noted that one initiative-petition drive appeared to have been spared from court challenges. It seeks to legalize the use of marijuana.
By May 6, Missourians will know whether that proposal — and others — have collected enough signatures for a chance to get on the November ballot.