It is settled law in Missouri that those seeking to amend the state constitution or law through the initiative petition process must wait a day after the general election to begin collecting signatures.
What is uncertain, and what Cole County Circuit Judge Jon Beetem will decide soon, is whether the secretary of state must conduct the statutorily required review of petition proposals before that date.
Columbia attorney Jeff Basinger, who on July 29 submitted a proposal to restore abortion rights, told Beetem during arguments Tuesday that nothing in state law allows Secretary of State Jay Ashcroft to put off the review until after the Nov. 8 election. But attorneys for Ashcroft told Beetem that Supreme Court precedent, read together with the law and constitution, make it clear the review must wait.
Beetem gave the attorneys until Monday to submit final filings in the case. He did not indicate when he would rule, but Basinger said after a hearing that he expects a decision before this year's election.
The review can take up to 51 days. It includes examination by the attorney general's office to make sure the proposal is in the proper legal form and an estimate of fiscal impact on state and local governments by the state auditor.
Basinger argued state law directs the secretary of state to begin that process once the proposed petition is received. There is no discretion to wait, he said.
"There is no state law that supports it," he said.
In response, assistant Attorney General Jason Lewis acknowledged the statutes are silent on when the review must begin. But the constitutional directive, he said, stating that petitions can only be submitted for the upcoming general election and that signatures can be gathered any time after the general election establishes the timeline.
"The authority the secretary of state is relying on is the plain language of the constitution itself," Lewis said.
While Basinger argues the law requires Ashcroft to begin processing the initiative immediately, "he cannot name a clear provision that he claims grants him that right," Lewis said.
Getting a petition from a proposal to a ballot measure is an arduous task.
Of the 89 initiatives submitted for review in advance of this year's election, 49 were certified for circulation. Only two, to implement ranked-choice voting and to legalize marijuana, were submitted with signatures. And only the marijuana initiative was certified to appear on the Nov. 8 ballot.
A proposed state law requires signatures from registered voters equal to 5 percent of the total vote in the most recent election for governor in six of the state's eight congressional districts. A proposed constitutional amendment is a higher threshold, 8 percent.
Basinger wrote his initiative proposal after the U.S. Supreme Court in June reversed its 1973 Roe v. Wade decision, ending federal protections for abortion rights. Within a few minutes of the ruling, Missouri's trigger law took effect, banning all abortions except in cases of medical emergency.
In an interview in August, Basinger said the proposal he submitted would add exceptions for pregnancies resulting from rape or incest and to protect the health of the woman. It would have also mandated the state allow women seeking an abortion to obtain medications approved by the FDA.
In an email to The Independent, Basinger said he had several purposes for his initiative beyond changing state law on aboriton.
The landslide victory for abortion rights in Kansas proves there is a gap between the law on abortion and what the people want, Basinger said. And that will encourage efforts to overturn Missouri's restrictions, whether it is his proposal or another, he said.
"I also hoped that a specific proposal would lead to abortion policy questions for candidates in the 2022 election," Basinger said. "I suspect the trigger law advocates were hoping to entirely avoid these issues in 2022."
The Missouri Independent, www.missouriindependent.com, is a nonprofit, nonpartisan news organization covering state government and its impact on Missourians.