Updated at 4 p.m. on Thursday with the filing of the ACLU's lawsuit:
Secretary of State Jay Ashcroft rejected bids to place a newly signed abortion ban up for a statewide vote in 2020, citing the fact that a provision in the measure goes into effect right away.
At least one group seeking to overturn the eight-week ban has gone to court against the GOP statewide official’s action.
Both the American Civil Liberties Union of Missouri and Joplin businessman David Humphreys, a major Republican donor, are seeking to overturn what’s known as HB 126. Missouri’s Constitution sets up a process to put any piece of legislation signed into law up for a statewide referendum. However, the constitution prohibits referendums for laws that are “necessary for the immediate preservation of the public peace, health or safety.”
That’s boilerplate language for what’s known as an emergency clause, which makes either an entire law or part of a law go into effect immediately after a governor signs it. In the bill Parson signed last month, there’s an emergency clause for a provision requiring notification to both parents in some circumstances if a minor is seeking an abortion. And Ashcroft cited that for rejecting two of three referendum proposals submitted to his office.
“There was an appropriate emergency clause on there that met the requirements of [the Missouri Constitution]," Ashcroft said in an interview. "I had no choice but to reject those two referendums.”
Ashcroft did not make a decision on another referendum submitted on behalf of a Humphreys-supported group. He said it would be inappropriate to comment on that measure while his office is still reviewing it.
He also said that his office could have hypothetically rejected referendums after the two groups gathered enough signatures, but added that "I did not feel that sandbagging people and playing that sort of gotcha politics would have been correct."
"The people that wanted to refer this to the people of the state are going to be unhappy I rejected it," Ashcroft said. "The people who were against referring it to the people of the state will be unhappy that I rejected this quickly. But if I am supposed to serve as the secretary of state for everyone, which I am, I think as soon as we know we follow the law. And soon as we make that determination, we have to let it be known so we're not putting our thumb down on one side of the scales."
'See you in court'
Missouri case law states that judges can determine whether an emergency clause is valid. And minutes after Ashcroft announced the decision, Tony Rothert of the American Civil Liberties Union of Missouri said his group was planning to go to court over the issue. The group ended up filing a lawsuit in Cole Court Court on Thursday afternoon.
“This cowardly move by the Secretary of State proves that Missouri’s anti-abortion zealots understand that they’re acting against the wishes of the majority. They hope to short-circuit the people’s vote because they know they will lose if the people get their say,” Rothert said. “This move is so predictable, we’ve already assembled our suit to require the Secretary of State to put aside his anti-abortion agenda and do his job by certifying the referendum.”
Ken Spain, a consultant for Humphreys, said in a statement: "“We remain committed to pursuing a referendum on HB126 and are prepared to take the necessary steps, including available legal remedies, to ensure women and underage minors who are victims of rape and incest have a greater voice on this issue.”
Lowell Pearson, a Jefferson City attorney who filed two referendums on behalf of a Humphreys-backed group, said he plans on filing a lawsuit over Ashcroft's decision.
In a letter to both Ashcroft and Attorney General Eric Schmitt, Pearson wrote, among other things, that the emergency clause prohibition on referendums doesn't apply in this instance because only part of the bill, and not the entire measure, goes into effect right away.
"What happened here (at most) is that a 'section' has been deemed by the legislature to be necessary for the immediate preservation ofthe peace, health or safety," Pearson wrote. "A 'law' has not been so deemed."
Pearson also pointed to a comment made by Sen. Andrew Koenig during St. Louis Public Radio's Politically Speaking podcast in which the Manchester Republican said "what we did in the bill is actually preempt that type of situation [a referendum] by putting an emergency clause in there. So there can’t be a referendum." Pearson wrote "the use of the word 'preempt' is telling, indicating a conscious effort to eliminate the constitutional power of the people."
Rothert wrote in his lawsuit that the emergency clause was included "not because of an immediate need to preserve the public peace, health, or safety but rather in order to defeat any attempt to refer the bill for voter approval or rejection under the fundamental right of referendum described in the Missouri." He also cited Koenig's comments to St. Louis Public Radio in the lawsuit.
Ashcroft said it makes sense that the courts, and not his office, make the determination about the validity of an emergency clause.
“I just have to do what the courts have said I should do," Ashcroft said. "And if the courts want to change their mind or if they want to say the Legislature did something incorrectly, that’s something they can do. But it’s not something I have the authority. It would be an abuse of power for me to do that.”
Groups seeking to overturn HB 126 only have until Aug. 28 to gather an estimated 100,000 signatures to trigger a referendum. If a court ends up letting the referendums go forward and groups get enough signatures, the statewide vote to approve or disapprove of HB 126 would occur in 2020.
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