‘It dilutes their vote’: Plan to restrict MO ballot measures could face legal trouble

The Missouri General Assembly heads into the final week of its annual session with Republicans still intent on approving restrictions that make it more difficult for voters to change the state constitution.

But a major first-in-the-nation proposal under consideration could violate the U.S. Constitution, some legal experts and lawmakers say.

While the GOP-controlled legislature has flirted with tightening requirements on the state’s initiative petition process for years, a measure lawmakers are weighing this time would give rural residents more power in statewide votes on constitutional amendments.

The Missouri Senate in late April passed a measure that would require amendments to receive either 57% support statewide or win a simple majority statewide while also winning a majority of the state’s eight congressional districts. Currently, only a simple majority is needed to approve amendments.

The inclusion of the congressional district rule, called a concurrent majority, has alarmed Democrats and voting rights activists, who say it would allow a coalition of rural congressional districts to effectively veto most proposed amendments. It comes as abortion rights supporters plan to try to place an amendment on the ballot overturning Missouri’s near-total ban.

If approved, Missouri would be the only state with such a requirement, according to a review of state ballot measure rules compiled by the National Conference of State Legislatures.

“It’s so obvious, after several sessions of trying to push these bills and some really robust public opposition, I think the lawmakers in this state that are continuing to push these policies are really grasping at straws,” said Gina Moore, senior manager of the Defend Direct Democracy campaign at the the Ballot Initiative Strategy Center, a Washington, D.C.-based group that promotes progressive ballot measures.

Legislative negotiators must still finalize a compromise package and it’s possible the idea will eventually be cut. Any proposal passed by the General Assembly would itself have to pass at a statewide vote – but would only need a simple majority.

Even if the idea is dropped, its passage through the Senate underscores the growing lengths Missouri Republicans are willing to go to curb the use of initiative petitions.

A string of Democratic and progressive ballot measure victories in recent years have left Republicans frustrated. While the party holds commanding supermajorities in the General Assembly and occupies every statewide executive office, voters have approved measures opposed by the legislature.

“I think some of the rural folks, many things that go on a ballot get passed in St. Louis and Kansas City and they don’t have a voice in it,” Sen. Mike Cierpiot, a Lee’s Summit Republican, said.

“I think they’re trying to make sure that they have a hand in all this and because particularly a constitutional change is a big deal, it’s a statewide thing and so I think it’s important.”

Missouri voters have passed Medicaid expansion, overturned a “right to work” law, legalized medical and recreational marijuana, raised the minimum wage and approved an ethics and campaign finance overhaul in the past decade.

Several of those recent statewide votes weren’t overwhelming. Medicaid expansion passed in 2020 with about 53% support. Recreational marijuana also passed with 53% of the vote.

Illustrating the urban-rural divide, all 79 Missouri counties defined as rural by the federal government opposed Medicaid expansion in 2020.

When the vote is close, the concurrent majority requirement could hand rural areas of the state more influence over whether an amendment is approved or rejected. In those instances, the location of voters — not just how they voted — would matter.

Amendments in those instances would need to win not only the state overall statewide election, but also win five of what would effectively be eight additional distinct elections – one for each congressional district.

‘One person, one vote’ problem

Some legal experts contend the requirement would violate the 14th Amendment to the U.S. Constitution, which guarantees equal protection under law. Landmark court cases before the U.S. Supreme Court decades ago established the principle of “one person, one vote” – meant to ensure each voter’s ballot holds equal weight.

“It dilutes their vote. There is a constitutional problem,” said Michael Wolff, a former Missouri Supreme Court chief justice who was on the court from 1998 to 2011 and was the chief justice from 2005 to 2007.

Large concentrations of voters in Kansas City, St. Louis, Springfield, Columbia and other urban areas would be helpful for achieving the necessary statewide simple majority. But after that, votes become less valuable the more concentrated they are, unless an amendment wins 57% support statewide. In that way, the requirement would prevent amendment supporters from winning by “running up the score” in a handful of cities.

The requirement goes to the ability of voters to be treated equally in terms of the strength of their vote, Wolff said. Voters in some congressional districts would have more power per vote than other districts.

The U.S. Supreme Court in 1963 invalidated a county-by-county winner-take-all system for primary elections in Georgia. The justices in an 8-1 ruling struck down the system, which gave each county equal weight in elections even though the population between counties varied significantly. The decision was one in a series of cases that firmly established the “one person, one vote” principle.

“You can’t have somebody’s vote counting for more because they happen to live in Joplin than a vote cast in St. Louis,” said Chuck Hatfield, a longtime Jefferson City attorney who worked for Democratic Gov. Jay Nixon and previously represented ballot measure proponents.

The 1963 decision, Gray v. Sanders, isn’t a perfect parallel to the Missouri proposal. When lawmakers draw congressional districts every decade, the districts must have a nearly equal number of residents, for example.

Gregory Magarian, a constitutional law professor at Washington University in St. Louis, doubts the proposal is unconstitutional. While he said he “strongly doubts” the motives behind the measure, he said everyone’s vote has the same meaning in the sense that each voter gets to vote within their congressional district.

The initiative petition process already has a geographic component, he noted. For an amendment to qualify for the ballot, supporters must gather signatures equal to 8% of the vote in the last election for governor in two-thirds of congressional districts.

“Sort of the same principle, the same basic design,” Magarian said.

Still, the concurrent majority idea even faces skepticism from some Republicans who otherwise support overhauling the initiative petition process. Rep. Mike Henderson, a Bonne Terre Republican who sponsored the House’s proposal, said he is concerned the idea would confuse voters and could be blocked in court.

The House measure would raise the threshold for passage of amendments to 60%. Henderson said that while he is open to discussions with senators, he prefers a straight percentage over a concurrent majority.

“I’m afraid it could violate the 14th Amendment on the ‘one person, one vote’ rule. I think there are some other people who have those same concerns,” Henderson said.

Like many GOP lawmakers, Henderson justifies a supermajority requirement by saying that out-of-state money has funded proposals that have only narrowly passed. He said a higher threshold would encourage “grassroots” initiatives.

Democrats say the initiative petitions are a result of a GOP-controlled legislature that isn’t responsive to the majority will of residents.

Rep. Robert Sauls, an Independence Democrat, sees the push to overhaul the initiative petition an attack on democracy. The initiative petition process, which requires gathering thousands of signatures across the state, is already a lengthy and cumbersome process, he said.

“The reality is a lot of these issues are coming through and getting passed because the legislature is not doing it,” Sauls said.

“I mean, some of the stuff that we argue in this building and some of the things that come out, are, you know, just not what the people want.”