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Appeals court sets hearing date on Missouri abortion rights initiative ballot title

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Appeals court sets hearing date on Missouri abortion rights initiative ballot title

Sep 28, 2023 | 5:26 pm ET
By Rudi Keller
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Appeals court sets hearing date on Missouri abortion rights initiative ballot title
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State law directs Secretary of State Jay Ashcroft to prepare a ballot summary that is “neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure.” A court determined that Ashcroft violated both standards (Tim Bommel/Missouri House Communications).

The next legal wrestling match over what Missouri voters would see if an abortion-rights initiative petition makes next year’s ballot is scheduled for Oct. 30 before judges of Western District Court of Appeals.

A three-judge panel will hear oral arguments that day on Secretary of State Jay Ashcroft’s appeal of Cole County Circuit Judge Jon Beetem’s Monday ruling that rewrote the ballot language for six proposed initiatives.

In an order setting the hearing date, the court also set an expedited schedule for filings in the case, splitting the difference between the faster schedule sought by ACLU of Missouri attorneys and the calendar proposed by Ashcroft’s legal team.

Ashcroft’s opening brief will be due Oct. 11, with the final filing on Oct. 23, one week before arguments.

“No extensions will be granted,” the order states.

The same schedule applies to an appeal filed Tuesday seeking review of Beetem’s ruling upholding a fiscal note summary written by State Auditor Scott Fitzpatrick. A challenge filed by state Rep. Hannah Kelly, R-Mountain Grove, state Sen. Mary Elizabeth Coleman, R-Arnold, and Kathy Forck, a longtime anti-abortion advocate from New Bloomfield, argued that the state could lose federal Medicaid funding and trillions in future tax revenue.

A separate three-judge panel will hear the appeal from Kelly, Coleman and Forck.

Beetem decided that Ashcroft wrote a biased ballot summary for six proposed initiatives that would enshrine rights to receive reproductive health care, including abortion, in the state constitution. 

State law directs the secretary of state to prepare a ballot summary that is “neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure.” In his ruling, Beetem wrote that Ashcroft violated both standards.

Ashcroft filed a notice of appeal the same day as the ruling, telling the Western District Court of Appeals that Beetem went too far by rewriting the entire ballot summary for all six proposals “instead of performing minimal revisions to any language deemed unfair and insufficient.”

In the motion to expedite the appeal, attorney Tori Schafer wrote that Ashcroft has been trying to delay the start of signature-gathering and a lengthy appeal process only helps that effort. The ACLU of Missouri represents Dr. Anna Fitz-James, a St. Louis physician who is the named representative of a political action committee called Missourians for Constitutional Freedom and the plaintiff in the case.

“The Attorney General and Secretary of State have repeatedly acted outside of the law to delay this case in an attempt to frustrate Dr. Fitz-James’s right to initiative,” Schafer wrote in the motion seeking oral arguments on Oct. 11.

Ashcroft is represented by Attorney General Andrew Bailey’s office in the case. Bailey was also the cause of the first substantial delay in opening the signature campaign when he refused to accept Fitzpatrick’s fiscal note summary in April. 

Under regular procedures, it takes 56 days to complete a review process that produces a ballot title summary and financial estimate. Missourians for Constitutional Freedom filed 11 proposals in early March and expected to have a petition ready for circulation by mid-May. 

To make the 2024 ballot, backers must secure more than 170,000 signatures from registered voters by early May 2024.

Instead, Bailey’s refusal to act on Fitzpatrick’s summary resulted in a court case resolved by the July 20 decision of the Missouri Supreme Court that concluded nothing in state law “gives the attorney general authority to question the auditor’s assessment of the fiscal impact of a proposed petition.”

Ashcroft waited for a week after that decision before certifying the ballot title, Schafer wrote.

“Time is of the essence to prevent the Attorney General and Secretary from successfully frustrating the right to initiative,” she wrote.

In seeking a longer schedule, Assistant Attorney General Josh Divine wrote that he needs time to prepare after taking over the case from the trial attorney. Under normal court procedures, he wrote, Beetem’s Monday ruling would not be final until Oct. 25. 

Any time after that would be best for Ashcroft, Divine wrote. The time limit for litigation over ballot titles is 180 days, he wrote, making the deadline for a final decision Jan. 22.

If the court wants to move faster, Divine wrote, he needs “until at least October 13 to file an opening brief so counsel can become acquainted with the case—especially in light of other briefing obligations, including a brief in the U.S. Supreme Court, due in the upcoming weeks.”

Ashcroft and Bailey have not unnecessarily delayed the certification of the initiative or the litigation, DIvine wrote.

“Respondent also casts aspersions, wrongly asserting that state actors have slow-walked this case,” Divine wrote. “There is no need to respond to every incorrect assertion.”