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Recent disputes and lawsuits about how abortion-rights initiative petitions would be summarized on the ballot demonstrate a serious problem with the process required in Missouri before signatures can be collected.
Under the current process, the top of the proposal contains an estimated cost written by the state auditor and a short description written by the Missouri secretary of state. Then, both the fiscal note and ballot-title description are sent to the state attorney general for final approval.
All three of these state officials are Republicans, so you would think it would be a simple process. Not so this year.
Attorney General Andrew Bailey disagreed with Auditor Scott Fitzpatrick’s cost estimate, called a fiscal note, and insisted on his own inflated estimate.
It was a unique conflict I’ve never seen in decades covering the process. Fitzpatrick had been the House budget chair, so he’s got a pretty solid background in understanding the standards for a fiscal note.
Fitzpatrick concluded the proposal would have no fiscal impact to state government. But the attorney general insisted the fiscal note declare that state government would lose billions of dollars of income tax the state would have able to collect from potential taxpayers had they not been aborted. He also warned of a possible cut in federal Medicaid funding for Missouri from expanding abortion rights, a prediction with which the department that runs Missouri’s program did not agree.
That is so different from how legislative staff calculate the budget impact of proposals. Those fiscal note estimates are based on figures provided by state agencies, and the costs are broken down for the next few years rather than decades in the future.
Besides, legislative fiscal notes often include the financial benefits to the state. In the case of the abortion rights proposal, that might include lower costs of education and child Medicaid health care costs.
Ultimately, the state Supreme Court ruled Bailey did not have authority to require a change in Fitzpatrick’s fiscal note.
Another ballot dispute is over Secretary of State Jay Ashcroft’s description of the abortion-rights constitutional proposal.
Missouri law requires he use “language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure.”
But Ashcroft seemed to violate that requirement with alternative language that the abortion ballot measure would “allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth, without requiring a medical license or potentially being subject to medical malpractice.”
Compare that with the language Missouri’s House research staff used to describe a very similar bill in 2022 that “the bill prohibits the state from denying a person’s right to obtain an abortion as established by the United States Supreme Court in the decision Roe v. Wade.”
In my decades covering the legislature, I’ve found the descriptions by the nonpartisan legislative staff to be usually dead-on accurate and unbiased.
These disputes delayed when the abortion-rights supporters could begin collecting signatures to put the proposal on the statewide ballot because signatures cannot be collected until the ballot description tasks of the three state officials are completed.
This political quagmire about descriptions and fiscal notes for ballot issues submitted to Missourians leads me to think there needs to be an alternative process.
Obviously, giving partisan elected state officials power to describe a ballot issue and its financial impact demonstrates a major problem – particularly with a ballot issue involving abortion rights opposed by many Republicans.
Further compounding this issue is that two of the three elected officials involved in the ballot-issue description process – Ashcroft and Bailey – are running for statewide office next year when an abortion-rights constitutional amendment on the ballot could have a huge impact on voter turnout.
A cleaner possibility could be to turn the ballot-description responsibilities over to the bipartisan Missouri Ethics Commission. The six members are equally divided between the two major parties and require Senate confirmation. The commission has a long history of dealing with difficult political questions.
Besides, the commission could seek advice from state officials and legislative staff on ballot-issue descriptions.
It could provide a cleaner and more transparent process than what Missouri is now encountering.
Phill Brooks has been a statehouse reporter since 1970, making him the dean of the Missouri statehouse press corps. He is director of Missouri Digital News and an emeritus faculty member of the Missouri School of Journalism.
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