Barbara Pippens, John Bohney, Cheryl Hibbeler, Rebecca Shaw, Bob Minor, James Harmon, Gene Davison, and Pat McBride v. John R.Ashcroft, in his official capacity as Missouri Secretary of State, Dave Schatz, in his official capacity as State Senator and President Pro Tem of the Senate, Elijah Haahr, in his official capacity as State Representative and Speaker of the House, and Daniel Hegeman, in his official capacity as State Senator and sponsor of Senate Resolution 38 ( 2020 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
BARBARA PIPPENS, JOHN )
BOHNEY, CHERYL HIBBELER, )
REBECCA SHAW, BOB MINOR, )
JAMES HARMON, GENE )
DAVISON, and PAT McBRIDE, )
Respondents, )
)
v. ) WD83962
)
JOHN R. ASHCROFT, in his ) FILED: August 31, 2020
official capacity as Missouri )
Secretary of State, DAVE )
SCHATZ, in his official capacity )
as State Senator and President )
Pro Tem of the Senate, ELIJAH )
HAAHR, in his official capacity )
as State Representative and )
Speaker of the House, and )
DANIEL HEGEMAN, in his )
official capacity as State Senator )
and sponsor of Senate Resolution )
38, )
Appellants. )
Appeal from the Circuit Court of Cole County
The Honorable Patricia S. Joyce, Judge
Before Special Division: Lisa White Hardwick, P.J., and
Alok Ahuja and Karen King Mitchell, JJ.
In its 2020 regular session the General Assembly passed Senate Joint
Resolution 38 (“SJR 38”), which proposes amendments to the Missouri Constitution
concerning legislative redistricting, campaign contribution limits, and lobbyist gifts.
The measure will appear on the November 3, 2020 general election ballot as
Amendment No. 3.
A group of eight Missouri citizens (the “Challengers”) filed suit against the
Secretary of State and other State officials in the Circuit Court of Cole County to
challenge the official summary statement for SJR 38. The circuit court agreed with
the Challengers that each of the three bullet points in the official summary
statement was unfair and insufficient; the court accordingly rewrote the summary
statement, and certified to the Secretary of State an alternative statement for
inclusion on the ballot.
The Secretary of State and the other defendants appeal. We affirm in part
and reverse in part. While we agree with the circuit court that certain aspects of
the official summary statement are unfair or insufficient and require revision, we
certify to the Secretary of State an alternative summary statement which makes
more limited revisions than those ordered by the circuit court.
Factual Background
In the general election held on November 6, 2018, Missouri voters approved
Constitutional Amendment No. 1, which had been proposed by initiative petition.
Amendment No. 1 made multiple revisions to Article III of the Missouri
Constitution, the article establishing the legislative department.
We rejected pre-election challenges to the validity of Amendment No. 1 in
Ritter v. Ashcroft, 561 S.W.3d 74 (Mo. App. W.D. 2018). Ritter explained that
Amendment No. 1 “prohibit[s] legislators and legislative employees from accepting
gifts valued at more than $5.00 from paid lobbyists,” and “prohibit[s] candidates for
the Senate from accepting campaign contributions of more than $2,500.00 in any
one election cycle, and prohibit[s] House candidates from accepting contributions of
more than $2,000.00.” Id. at 80; see Mo. Const. Art. III, § 2(b), (c).
2
In addition, we explained that Amendment No. 1 “substantially modif[ies] the
procedure for apportioning House and Senate Districts following a decennial
census.” Ritter, 561 S.W.3d at 80. As we described in Ritter,
[Amendment No. 1] establish[es] a new position known as the “non-
partisan state demographer,” to be selected through an application
process overseen by the State Auditor, and with the participation of
the majority and minority leaders of the Senate. [See Mo. Const. Art.
III, § 3(a), (b).] The non-partisan state demographer is charged with
preparing proposed legislative re-districting plans and maps following
the decennial census. [Id. §§ 3(c), 7(a)]. In preparing those
redistricting proposals, the demographer is charged with giving the
districts “a total population as nearly equal as practicable to the ideal
population for such districts,” and with complying with the
requirements of the United States Constitution and federal laws,
including the Voting Rights Act of 1965. [Id. § 3(c)(1)a, b.] The
demographer is also directed that
Districts shall be designed in a manner that achieves both
partisan fairness and, secondarily, competitiveness. Partisan
fairness means that parties shall be able to translate their
popular support into legislative representation with
approximately equal efficiency. Competitiveness means that
parties’ legislative representation shall be substantially and
similarly responsive to shifts in the electorate’s preferences.
[Id. § 3(c)]. [Amendment No. 1] also directs the demographer to
consider geographic contiguity, the boundaries of existing political
subdivisions, and the compactness of the proposed districts. These
considerations, however, are expressly subordinated to consideration of
equal population, compliance with federal law, and partisan fairness
and competitiveness. [Id. § 3(c)(1)c, d, e.]
[Amendment No. 1] provide[s] that, within six months following
the release of the decennial census results, the non-partisan state
demographer shall file with the Secretary of State “a tentative plan of
apportionment and map of the proposed districts, as well as all
demographic and partisan data used in the creation of the plan and
map.” [Id. § 3(c)(3).] [Amendment No. 1] largely retains the procedure
found in the current Missouri Constitution for the Governor to select
House and Senate reapportionment commissions with . . . input [from
the two major political parties]. [See id. § 3(c)(2).] Under [Amendment
No. 1], the reapportionment commissions are charged with holding at
least three public hearings concerning the demographer’s proposed
apportionment plan. [Id. §§ 3(c)(3), 7(c).] The commissions may make
3
modifications to the demographer’s proposed plan and map, but only
“by a vote of at least seven-tenths of the commissioners.” [Id.]
[Amendment No. 1] provides that, “[i]f no changes are made or
approved as provided for in this subsection, the tentative plan of
apportionment and map of proposed districts shall become final.” [Id.]
Ritter, 561 S.W.3d at 80-81.
Amendment No. 1’s creation of the post of Nonpartisan State Demographer
was mentioned by the Supreme Court of the United States in its decision finding
that partisan gerrymandering of State legislative districts does not present a
justiciable controversy under federal law. Rucho v. Common Cause, 139 S. Ct. 2484
(2019). The Court observed that, while federal law provided no remedy, “[t]he
States . . . are actively addressing the issue [of partisan influence over redistricting]
on a number of fronts.” Id. at 2507. After noting that a number of States had
established independent redistricting commissions, the Court stated that “Missouri
is trying a different tack. Voters there overwhelmingly approved the creation of a
new position – state demographer – to draw state legislative district lines.” Id.
(citing Mo. Const. Art. III, § 3). The introduction of “partisan fairness” and
“competitiveness” criteria, and their placement in the highest-priority category, is
also an apparently novel feature of the new redistricting process put in place by
Amendment No. 1.1
In its 2020 regular session, the General Assembly passed Senate Substitute
No. 3 for Senate Joint Resolution No. 38 (“SJR 38”). SJR 38 submits to voters a
proposed constitutional amendment which would modify the features of
Amendment No. 1 described above. While Amendment No. 1 prohibits legislators
and their staffs from accepting gifts from paid lobbyists with a value in excess of
1 See David Gartner, Arizona State Legislature v. Arizona Independent
Redistricting Commission and the Future of Redistricting Reform, 51 Ariz. St. L. J. 551, 582
(2019) (stating that adopting of Amendment No. 1 in 2018 “sets Missouri apart from all
other states in its focus on ‘partisan fairness’ and puts it among a small group of states that
incorporate ‘competitiveness’ as a priority criteria”).
4
$5.00, SJR 38 deletes the dollar limitation, and would thereby prohibit gifts from
paid lobbyists entirely. SJR 38 also reduces the contribution limits in campaigns
for state senator by $100.00, from $2,500.00 to $2,400.00 (it does not alter the
$2,000.00 contribution limit in races for the state House of Representatives). SJR
38 also proposes to delete the cost-of-living adjustment to the campaign contribution
limits currently found in Article III, § 2(c).
SJR 38’s most significant provisions modify the process for reapportioning
state legislative districts.
SJR 38 renames the existing House and Senate reapportionment
commissions as the “house independent bipartisan citizens commission” and the
“senate independent bipartisan citizens commission.” Under the existing
Constitution, the members of the House reapportionment commission are appointed
by the Governor, from lists of nominees submitted by the two major political parties’
congressional district committees, while members of the Senate reapportionment
commission are appointed by the Governor from lists of nominees submitted by the
parties’ State committees. See Article III, § 3(c)(2), 7(b). SJR 38 proposes to modify
this selection process so that the parties’ State committees, as well as their
congressional district committees, will both make nominations to each of the
redistricting commissions. As a result of the additional nominations coming from
the different party committees, the membership of the House redistricting
commission would increase from sixteen to twenty members, and the Senate
commission would expand from ten to twenty members. Under Article III, § 7(b),
the parties’ State committees currently nominate twenty candidates to fill all ten
spots on the Senate reapportionment commission. Under SJR 38, the influence of
the parties’ State committees would be diminished: the State committees would
nominate ten candidates to fill only four spots (or twenty percent of the members)
on each of the two redistricting commissions. SJR 38 also adds a provision
5
prohibiting any individual from serving on both commissions during the same
redistricting cycle.
SJR 38 completely eliminates the post of “Nonpartisan State Demographer,”
one of the primary features of the redistricting process established by Amendment
No. 1. Under Amendment No. 1, the Nonpartisan State Demographer is charged
with creating tentative redistricting maps for both the House of Representatives
and for the Senate, which are then reviewed by the reapportionment commissions
for each house (with a super-majority vote required to modify the Nonpartisan State
Demographer’s tentative plans). Having eliminated the office of Nonpartisan State
Demographer, SJR 38 specifies instead that the redistricting commissions will
themselves develop the redistricting maps for the House and Senate, rather than
merely reviewing the Nonpartisan State Demographer’s tentative redistricting
plans. Under SJR 38, the commissions are required to submit final maps to the
Secretary of State within six months after the commissions’ appointment; those
maps must be approved by at least seventy percent of the commissions’ members. If
the commissions fail to timely submit redistricting plans, SJR 38 provides that
maps will be developed by a commission consisting of six Court of Appeals judges,
appointed by the Missouri Supreme Court. This process is similar, although not
identical, to the redistricting process which was in place prior to the adoption of
Amendment No. 1 in 2018.
SJR 38 proposes to limit judicial challenges to redistricting plans developed
under its provisions. The resolution specifies that “[o]nly an eligible Missouri voter
who sustains an individual injury by virtue of residing in a district that [allegedly
violates the state or federal constitutions, or federal law], and whose injury is
remedied by a differently drawn district, shall have standing.” SJR 38 specifies
that, if a court finds that a legal violation has occurred, “its judgment shall adjust
only those districts, and only those parts of district boundaries, necessary to bring
6
the map into compliance.” The resolution gives the Missouri Supreme Court
exclusive appellate jurisdiction in any such case.
SJR 38 also proposes to substantially modify the criteria which govern the
redistricting process. SJR 38 provides that “[d]istricts shall be as nearly equal as
practicable in population, and shall be drawn on the basis of one person, one vote.”
The resolution specifies that districts will be deemed to be “as nearly equal as
practicable in population” if no district deviates by more than one percent from the
state-wide mean population per district, although deviations up to three percent
may be permitted to allow districts to follow existing political subdivision
boundaries. The gloss which SJR 38 places on “as nearly equal as practicable in
population” departs from the current constitution (as amended by Amendment No.
1 in 2018), which provides that “[l]egislative districts shall each have a total
population as nearly equal as practicable to the ideal population for such districts”
(“ideal population” being the state-wide mean per-district population). Mo. Const.
Art. III, § 3(c)(1)a.2
The resolution provides that legislative districts must be drawn to comply
with the United States Constitution and applicable federal laws, including the
Voting Rights Act of 1965, and specifies that “no district shall be drawn in a manner
which results in a denial or abridgment of the right of any citizen of the United
States to vote on account of race or color.” This alters the current non-
discrimination criterion, which specifies that “districts shall not be drawn with the
intent or result of denying or abridging the equal opportunity of racial or language
minorities to participate in the political process or diminishing their ability to elect
2 It may also be significant that the existing Constitution specifies that “ideal
population” shall be determined by calculating the per-district mean of “the total population
of the state reported in the federal decennial census,” while SJR 38 provides that the “ideal
population” shall be calculated by dividing the total number of districts into “the statewide
population data being used.”
7
representatives of their choice, whether by themselves or by voting in concert with
other persons.” Mo. Const. Art. III, § 3(c)(1)b.
Subordinate to the principles requiring an approximately equal population
distribution and prohibiting racial discrimination, SJR 38 requires that “districts
shall be composed of contiguous territory as compact as may be.” Next, SJR 38
specifies that, to the extent consistent with the foregoing, “communities shall be
preserved,” meaning that “district lines follow political subdivision lines to the
extent possible.” The resolution provides detailed criteria by which to determine
whether and how to divide counties and municipalities where necessary. Finally,
SJR 38 provides that “[d]istricts shall be drawn in a manner that achieves partisan
fairness and, secondarily, competitiveness, but the standards [described above]
shall take precedence over partisan fairness and competitiveness.” The resolution
substantially relaxes the standards used to gauge the “partisan fairness” and
“competitiveness” of particular redistricting plans. In particular, under
Amendment No. 1 the Demographer is required to draw maps which achieve an
“efficiency gap” between the voting power of each party’s supporters “as close to zero
as practicable.” Art. III, § 3(c)(1)b. Under SJR 38, on the other hand, redistricting
maps will be acceptable so long as the “efficiency gap” does “not exceed fifteen
percent.”
Besides modifying the existing criteria, the primary change to the
redistricting standards which would be effected by SJR 38 concerns the relative
weight to be given to “partisan fairness” and “competitiveness” in the redistricting
process. The current Constitution (as amended by Amendment No. 1) places the
achievement of “partisan fairness and, secondarily, competitiveness,” in the highest
priority category of redistricting criteria, alongside the directive to achieve equality
of population and the prohibition on racial discrimination. See Mo. Const. Art. III,
§ 3(c)(1). Considerations of geographical contiguity, preservation of the boundaries
8
of political subdivisions, and compactness are subordinate criteria. Id. In contrast,
SJR 38 removes partisan fairness and competitiveness from the highest-priority
category, and instead places them at the very bottom of the priority listing, below
contiguity, preservation of existing boundaries, and compactness.
The General Assembly exercised its prerogative under § 116.1553 to draft the
official summary statement for SJR 38. The General Assembly’s summary
statement proposes to ask voters:
Shall the Missouri Constitution be amended to:
• Ban all lobbyist gifts to legislators and their employees;
• Reduce legislative campaign contribution limits; and
• Create citizen-led independent bipartisan commissions to
draw state legislative districts based on one person, one vote, minority
voter protection, compactness, competitiveness, fairness, and other
criteria?
SJR 38 was passed by the Senate on May 10, 2020, and by the House of
Representatives on May 13, 2020. It is slated to appear on the November 3, 2020
general election ballot as Amendment No. 3.
On May 18, the Challengers filed their Petition for Declaratory Judgment
and Injunctive Relief under Section 116.190, RSMo, contending that the official
ballot summary drafted by the General Assembly for SJR 38 was insufficient and
unfair. The Petition named as defendants the following individuals (solely in their
official capacities): Secretary of State John R. Ashcroft; Senate President Pro Tem
Dave Schatz; Speaker of the House of Representatives Elijah Haahr; and State
Senator Daniel Hegeman, the sponsor of SJR 38. The defendants are jointly
represented by the Attorney General’s Office, and have filed a joint brief in this
3 Statutory citations refer to the 2016 edition of the Revised Statutes of
Missouri, updated through the 2019 Cumulative Supplement.
9
Court. For ease of reference, we refer to the defendants collectively as the
“Secretary of State.”
In their Petition, the Challengers alleged that each of the three bullet points
contained in the General Assembly’s summary statement is insufficient and unfair.
The Challengers alleged that the first bullet of the summary is insufficient and
unfair because SJR 38 merely “reduce[s] the five-dollar limit on de minimis gifts to
zero,” while leaving in place exceptions to the gift restrictions for unpaid lobbyists,
and the exception for “gifts [to legislators or their staffs] . . . from those related to
them within the fourth degree by blood or marriage.” Mo. Const. Art. III, § 2(b).
The Challengers also alleged that,
in light of the dramatic and significant changes that SJR 38 will make
to redistricting, it is misleading and manipulative for the fifty-word
summary statement to devote any precious space – let alone the entire
first clause – to the unremarkable fact that SJR 38 would amend the
Constitution to preclude legislators and their employees from receiving
gifts from paid lobbyists worth five dollars or less.
Challengers’ Petition alleged that the second bullet point of the General
Assembly’s summary statement is insufficient and unfair because SJR 38 only
reduces contribution limits in Senate campaigns, and therefore does not “[r]educe
legislative campaign contribution limits” as the summary states. Because the
reduction of $100 to the Senate campaign contribution limit constitutes only a four
percent reduction, for only one house of the General Assembly, the Challengers
contended that the summary’s emphasis on this provision would “unfairly color[ ]
the views of the voters,” and would “mislead and deceive voters into believing that
SJR 38 would make meaningful reductions in contribution limits for all legislative
campaigns, which is untrue.”
With respect to the third bullet point, the Petition alleged that the summary
statement inaccurately states that SJR 38 “create[s]” new commissions, when it
“simply renames” the existing House and Senate reapportionment commissions.
10
The Challengers also argued that the third bullet “is misleading because it fails to
inform voters that SJR 38 eliminates the office of the Nonpartisan State
Demographer, which provides Missouri’s primary defense against partisan
gerrymandering.” The Challengers alleged that the third bullet point “falsely
asserts that the Commissions would be ‘independent,’” when the commissions
“would in fact comprise individuals with partisan interests who were hand-selected
by the State’s political parties and elected officials.” The Petition also alleged that
the third bullet is insufficient and unfair because it fails to acknowledge that “the
Missouri Constitution already provides that districts are to be drawn on the basis of
the[ ] factors” listed in the third bullet. The Challengers also complained that the
third bullet fails to acknowledge that SJR 38 will significantly reduce the impact of
partisan fairness and competitiveness on redistricting, by making the test to
determine fairness and competitiveness substantially more lenient, and by
removing those criteria from the highest priority category, and instead making
them the lowest priority considerations in formulating district maps.
The petition prayed that the circuit court vacate the existing summary
statement and either order the General Assembly to prepare a new one, or certify
the following summary statement instead:
Shall the Missouri Constitution be amended to:
Eliminate the office of Nonpartisan State Demographer, currently
responsible for drawing draft legislative district maps, and give map
drawing responsibility to Commissions comprised of partisan
representatives; and
Make partisan fairness and competitiveness the least important
factors when drawing district maps.
The parties agreed to submit the case to the circuit court for decision on a
Joint Stipulation of Facts and Exhibits, the parties’ trial briefs, and oral argument
by counsel. The parties’ Joint Stipulation identified the parties, provided a
11
chronology of relevant events, and submitted to the court stipulated copies of the
relevant documents.
Following a hearing on August 7, 2020, the circuit court entered its Final
Judgment on August 17. The circuit court agreed with the Challengers that all
three bullet points in the General Assembly’s proposed summary statement are
insufficient and unfair. The court therefore vacated the General Assembly’s
statement, and certified an alternative summary statement which the court had
drafted. The circuit court began its legal analysis of the General Assembly’s
summary statement language with these general observations:
[T]he legislature’s summary fails to inform voters that adopting SJR
38 would eliminate the legislative redistricting rules Missourians
overwhelmingly adopted just two years ago to combat political
gerrymandering and replace them with a redistricting process similar
in substance to the one they just voted to abandon. . . . Where, as
here, the legislature seeks to override the recent, clearly expressed will
of Missouri voters on a matter as important as redistricting, the law
requires that voters by plainly informed what they are being asked to
consider.
The judgment found, first, that “the summary statement is insufficient and
unfair because it fails to even allude to SJR 38’s central feature: the wholesale
repeal of voter-approved rules for redistricting and replacing them with prior
redistricting rules designed to benefit incumbent legislators.” “The ‘central purpose’
or ‘primary objective’ of SJR 38 is to effectively repeal Amendment 1. Accordingly,
the summary statement must alert voters to that change in some fashion. Instead,
the General Assembly’s statement does not mention the change at all.”
The circuit court also agreed with the Challengers that the first bullet point
misleadingly claims that SJR 38 would ban all lobbyist gifts, when it only bans gifts
from unrelated, paid lobbyists. The court also agreed with Challengers that the
second bullet point is misleading when it suggested that contribution limits are
reduced in all “legislative campaign[s],” when the resolution only effects “a meager
12
4% reduction to senatorial campaign contribution limits while leaving
representative contribution limits untouched.” The court also found that the third
bullet is deceptive in referring to the “creat[ion]” of “independent” and “citizen-led”
redistricting commissions, when SJR 38 instead “simply renames two legislative
commissions that already exist,” and the members of the commissions will be
selected by the joint efforts of the major political parties and the Governor. The
judgment also found the third bullet point to be misleading by suggesting that SJR
38 establishes new redistricting criteria, when the listed criteria are already
specified in the Constitution, and by failing to acknowledge that the resolution
substantially reduces the significance of partisan fairness and competitiveness in
the redistricting process.
After vacating the General Assembly’s summary statement, the circuit court
instead certified to the Secretary of State the following alternate summary
statement, for inclusion in the official ballot title to appear on the November 3, 2020
general-election ballot:
Shall the Missouri Constitution be amended to:
• Repeal rules for drawing state legislative districts approved by
voters in November 2018 and replace them with rules proposed
by the legislature;
• Lower the campaign contribution limit for senate candidates by
$100; and
• Lower legislative gift limit from $5 to $0, with exemptions for
some lobbyists?
The Secretary of State filed his Notice of Appeal on August 18, 2020. The
parties submitted the record and their briefing on an expedited basis, and we heard
oral argument on August 28.4
4 In addition to briefing by the parties, we received an amicus curiae brief
supporting the Secretary of State from the Missouri Chamber of Commerce and Industry
and other trade organizations, and amici briefs supporting the challengers from a group of
13
Standard of Review
The parties submitted the case to the circuit court for decision based on their
Joint Stipulation of Facts and Exhibits. “‘[W]hen there is no underlying factual
dispute that would require deference to the trial court’s factual findings,’ we apply
‘[d]e novo review [to] the trial court’s legal conclusions about the propriety of the . . .
summary statement[ ].” Sedey v. Ashcroft, 594 S.W.3d 256, 262 (Mo. App. W.D.
2020) (quoting Brown v. Carnahan, 370 S.W.3d 637, 653 (Mo. 2012)).
Discussion
The summary statement which the Challengers attack was drafted by the
General Assembly pursuant to the authority granted by § 116.155.1, which provides
that “[t]he general assembly may include the official summary statement . . . in any
statewide ballot measure that it refers to the voters.” The Missouri Supreme Court
has explained that,
[i]f the General Assembly writes the ballot title for a measure it
proposes to voters, the title must be “a true and impartial statement of
the purposes of the proposed measure in language neither
intentionally argumentative nor likely to create prejudice either for or
against the proposed measure.” Section 116.155.2. The summary
statement is limited to 50 words, excluding articles. Id.
Section 116.190, . . . in relevant part, allows any citizen to
challenge the official ballot title proposed by the General Assembly
before an election takes place. The challenger must “state the reason
or reasons why the summary statement portion of the official ballot
title is insufficient or unfair.” Section 116.190.3. This section is a
procedural safeguard that is “designed to assure that the desirability of
the proposed amendment may be best judged by the people in the
former Missouri federal and State legislators, and from a group of national and Missouri-
based civil-rights organizations.
Under § 115.125.3, “[n]o court shall have the authority to order an individual or
issue be placed on the ballot less than eight weeks before the date of the election.” In
Dotson v. Kander, 435 S.W.3d 643 (Mo. 2014), the Missouri Supreme Court interpreted this
provision “to prohibit court-ordered modifications to a ballot title” later than the date
specified in the statute. Id. at 645; see also § 116.190.5 (providing that an action
challenging a ballot title “shall be extinguished” “fifty-six days prior to election in which the
measure is to appear,” unless this deadline is extended by the court for “good cause”). Eight
weeks before the November 3, 2020 election is September 8, 2020.
14
voting booth.” Such challenges are necessary “to prevent a self-serving
faction from imposing its will upon the people without their full
realization of the effects.” Judicial review of a ballot title is especially
important in a legislature-proposed ballot initiative. This is true
because the proponent of the initiative – the General Assembly –
writes the ballot title as well as the proposed amendment without any
review of the ballot title by the executive department. . . . [¶] In
contrast, the ballot summary of a citizen-proposed initiative petition is
written by the secretary of state and reviewed by the attorney general.
Dotson v. Kander, 464 S.W.3d 190, 193-94 & n.4 (Mo. 2015) (other citations and
footnote omitted).
Under § 116.190.3, “[t]he party challenging the language of the summary
statement bears the burden to show that the language is insufficient or unfair.”
Hill v. Ashcroft, 526 S.W.3d 299, 308 (Mo. App. W.D. 2017) (citation omitted).
“‘Insufficient means “inadequate; especially lacking adequate power, capacity, or
competence.” The word “unfair” means to be “marked by injustice, partiality, or
deception.”’” Id. (citations omitted).
The summary statement “should accurately reflect both the legal and
probable effects of the propos[al].” Shoemyer v. Sec’y of State, 464 S.W.3d 171, 174
(Mo. 2015) (citing Brown v. Carnahan, 370 S.W.3d 637, 654 (Mo. 2012)). We have
explained that “[t]he summary statement should inform voters of the ‘central
feature[s]’ of the initiative or referendum proposal.” Stickler v. Ashcroft, 539 S.W.3d
702, 709 (Mo. App. W.D. 2017) (citation omitted). This principle derives from “[t]he
commonly understood meaning of a ‘summary,’” namely, “‘a short restatement of the
main points (as of an argument) for easier remembering, for better understanding,
or for showing the relation of the points.’” Id. at 709 n.4 (quoting WEBSTER’S THIRD
NEW INT’L DICTIONARY OF THE ENGLISH LANGUAGE 2289 (unabridged ed. 1993)).
While a summary statement should describe a ballot measure’s central
features, it “‘need not set out the details of the proposal to be fair and sufficient.’”
Stickler, 539 S.W.3d at 709 (quoting Brown, 370 S.W.3d at 656). “The omission of
15
proposed changes from the summary statement will not render the ballot summary
insufficient if they are not central features of the proposed amendment.” Sedey, 594
S.W.3d at 269 (citation omitted).
“The applicable question is not whether the summary drafted is the best
summary, ‘but whether [it] gives the voter a sufficient idea of what the proposed
amendment would accomplish, without language that is intentionally unfair or
misleading. The idea is to advise the citizen what the proposal is about.’” Id. at 263
(citation omitted). The question for the court “is whether the summary statement
contains an impartial, intelligible, and accurate summary of the [ballot measure]’s
central purpose and effects.” Stickler, 539 S.W.3d at 710.
With these general principles in mind, we turn to the Challengers’ specific
attacks against the three bullet points which make up SJR 38’s official summary
statement.
I.
The first bullet point of the official summary statement asks Missouri voters
whether they wish to amend the Constitution to “[b]an all lobbyist gifts to
legislators and their employees.” The Challengers argue that this is an insufficient
and unfair summary of SJR 38, because the resolution does not ban “all” gifts from
lobbyists. They emphasize that SJR 38 does not alter the language in Article III,
§ 2(b) of the Missouri Constitution, which limits the gift restriction to “a gift . . .
from any paid lobbyist or lobbyist principal” – thus excluding unpaid lobbyists. The
Challengers also emphasize that SJR 38 retains Article III, § 2(b)’s exception for
gifts “from those related to [legislators or their staffs] within the fourth degree by
blood or marriage.”
The first bullet point uses the expansive word “all” to describe the “lobbyist
gifts” which will be banned if the amendment passes. “The word ‘all’ is unqualified
and unambiguous.” Estes v. Cole Cnty., 437 S.W.3d 307, 312 (Mo. App. W.D. 2014).
16
“‘All’ means ‘[e]very,’”5 “‘each one of,’”6 or “‘the whole number, quantity or amount,’”
without exception.7 Thus, the summary statement tells voters that, if SJR 38
passes, every gift from a lobbyist to a legislator or legislative employee will be
prohibited, without exception.
As the Challengers argue, the first bullet point does not accurately reflect
what SJR 38 would actually accomplish, since it would only prohibit some lobbyist
gifts, namely those from “any paid lobbyist or lobbyist principal,” and would allow
an exception for gifts from relatives of the legislator or staffer.
The first bullet point fails to state that its gift ban would apply only to paid
lobbyists. The Secretary of State argues that a common dictionary definition of a
“lobbyist” includes only persons who perform legislative advocacy on behalf of
others for compensation. We cannot agree that use of the term “lobbyist,” standing
alone, necessarily connotes compensation. At least one common dictionary
definition of a “lobbyist” is simply “one who conducts activities aimed at influencing
or swaying public officials and especially members of a legislative body on
legislation : a person engaged in lobbying public officials.”8 Moreover, while we
need not decide in this case whether SJR 38 incorporates the definition of a
“legislative lobbyist” found in § 105.470, it is significant that the statutory definition
specifies four circumstances in which an individual seeking to influence legislative
action may be considered a “legislative lobbyist” – only two of which involve
compensation for lobbying activities. Section 105.470(5) provides in relevant part:
5 Alack v. Vic Tanny Int’l of Mo., Inc., 923 S.W.2d 330, 344 (Mo. 1996) (quoting
WEBSTER’S THIRD NEW INT’L DICTIONARY 54 (1976)).
6 State ex rel. State Hwy. Comm’n v. Klipsch, 414 S.W.2d 783, 786 (Mo. 1967).
7 Kinder v. Mo. Dep’t of Corr., 43 S.W.3d 369, 373 (Mo. App. W.D. 2001)
(quoting WEBSTER’S COLLEGIATE DICTIONARY 29 (10th ed. 1993)).
8 See www.merriam-webster.com/dictionary/lobbyist (accessed Aug. 26, 2020).
17
“Legislative lobbyist” [means] any natural person who acts for
the purpose of attempting to influence the taking, passage,
amendment, delay or defeat of any official action on any bill,
resolution, amendment, nomination, appointment, report or any other
action or any other matter pending or proposed in a legislative
committee in either house of the general assembly, or in any matter
which may be the subject of action by the general assembly and in
connection with such activity, meets the requirements of any one or
more of the following:
(a) Is acting in the ordinary course of employment, which
primary purpose is to influence legislation on a regular basis, on behalf
of or for the benefit of such person’s employer, except that this shall
not apply to any person who engages in lobbying on an occasional basis
only and not as a regular pattern of conduct; or
(b) Is engaged for pay or for any valuable consideration for
the purpose of performing such activity; or
(c) Is designated to act as a lobbyist by any person, business
entity, governmental entity, religious organization, nonprofit
corporation, association or other entity; or
(d) Makes total expenditures of fifty dollars or more during
the twelve-month period beginning January first and ending December
thirty-first for the benefit of one or more public officials or one or more
employees of the legislative branch of state government in connection
with such activity.
Subparts (c) and (d) of this statutory definition do not require that the
“legislative lobbyist” receive compensation for their advocacy work. See Calzone v.
Summers, 942 F.3d 415, 418-19 (8th Cir. 2019) (en banc) (individual fell within
§ 105.470(5)’s definition of a “legislative lobbyist” where he advocated policy
positions to State legislators as the unpaid president of a nonprofit organization
which “is effectively his alter ego,” because he had been “designated to act as a
lobbyist” by the nonprofit).
Moreover, we can envisage numerous situations in which persons who are not
compensated for their lobbying work engage in such activities. For example,
individuals may lobby on their own behalf; corporate managers, small
businesspersons, and professionals may lobby without compensation on behalf of
18
trade or professional associations in which they or their employers are members;
workers may lobby on behalf of their labor unions; and interested individuals may
volunteer to lobby on behalf of public-policy or charitable organizations which they
support. The fact that SJR 38 exempts from the gift ban persons who engage in
“lobbying,” but are not compensated for their lobbying work, is a significant
limitation on the scope of the restriction. This qualification renders the existing
summary language – which asserts that SJR 38 will “ban all lobbyist gifts” –
insufficient and unfair.
The fact that the gift ban only applies to paid lobbyists can be easily
described by amending the first bullet point to state that SJR 38 will “[b]an gifts
from paid lobbyists to legislators and their employees.”9
On the other hand, it was not necessary for the summary statement to refer
to the exception for gifts from relatives of a legislator or legislative staffer. As
explained above, a summary statement “‘need not set out the details of the proposal
to be fair and sufficient.’” Stickler v. Ashcroft, 539 S.W.3d 702, 709 (Mo. App. W.D.
2017) (quoting Brown v. Carnahan, 370 S.W.3d 637, 656 (Mo. 2012)). This is
especially true in the context of the compressed fifty-word limit applicable to
summary statements drafted by the General Assembly. The fact that SJR 38
permits legislators and legislative employees to continue to receive gifts from
relatives who are also paid lobbyists constitutes a “detail” rather than a “central
feature” of SJR 38. Particularly with the elimination of the word “all” from the first
bullet point, no further reference to the allowance of gifts from relatives was
required.
The Challengers also argue that the first bullet point was insufficient
because it fails to state that SJR 38 will only reduce the gift restriction from the
9 We eliminate the word “all” due to considerations of space, and because the
summary already states that the relevant gifts are “ban[ned]” without qualification.
19
current $5.00 limit, to an outright ban. We disagree. In Brown, 370 S.W.3d 637,
the Missouri Supreme Court held that a summary statement for an initiative
seeking to limit interest rates charged by consumer lenders was fair and sufficient
when it merely asked voters whether “Missouri law [should] be amended to limit
the annual rate of interest,” without specifying that the new limit would be thirty-
six percent. Id. at 663. The Court explained that
[h]ere, the secretary of state prepared a summary statement that was
accurate as to the purpose of the initiative – to limit the permissible
interest rate for certain types of loans – and there was no requirement
to articulate specifically the proposed 36-percent rate limit. That the
court might believe that the additional information about the rate limit
would render a better summary is not the test.
Id. at 664 (citation omitted). As we recognized in Boeving v. Kander, 493 S.W.3d
865 (Mo. App. W.D. 2016), Brown held that “greater specificity was not required”
where the existing summary was “‘vague but accurate.’” Id. at 878. Here, it is
accurate to say that SJR 38 would “ban” gifts from paid lobbyists, without
specifically quantifying the effect of the ban.
II.
The second bullet point of the General Assembly’s official summary
statement states that passage of SJR 38 will “[r]educe legislative campaign
contribution limits.” The Challengers argue that this bullet point is insufficient and
unfair because SJR 38 only reduces the contribution limit with respect to Senate
races, and then only by $100 (or four percent), from $2,500 to $2,400. The
Challengers argue that the bullet point should be revised to make explicit that the
reduction in contribution limits only applies to Senate candidates, and to advise
voters of the magnitude of the reduction (which the Challengers characterize as
trivial). We disagree.
SJR 38 proposes to make two modifications to Article III, § 2(c) of the
Missouri Constitution. First, it reduced the contribution limit stated in the
20
Constitution for Senate races from $2,500, to $2,400. Second, it eliminates the
biannual adjustment of the contribution limits to reflect cumulative changes to the
Consumer Price Index since 2018.
Although SJR 38 only alters the stated limit on contributions to Senate
campaigns, it also affects the contribution limits on House races in at least two
ways. First, SJR 38 proposes to eliminate the Consumer Price Index adjustment,
which would generally (although not universally) result in future increases to the
contribution limits for both Senate and House races.
But critically, SJR 38 would also have the effect of actually reducing the
House contribution limit which is now in effect. Under Amendment No. 1, the
House and Senate contribution limits are adjusted every two years after 2018 to
reflect changes to the Consumer Price Index. Such a change in fact occurred
effective January 1, 2020. The Consumer Price Index adjustment increased the
campaign contribution limit for Senate races to $2,559 from $2,500, and increased
the limit for House races to $2,046 from $2,000. Because SJR 38 eliminates all
mention of a Consumer Price Index adjustment, and states that the contribution
limit for House races is $2,000, it would have the effect of reducing the current
contribution limit for House races from $2,046 to $2,000.
Although they do not dispute the Secretary of State’s description of the
Consumer Price Index adjustments which took effect on January 1, 2020, the
Challengers argue that we should not consider those adjustments. The Challengers
point out that the Secretary of State affirmatively represented to the circuit court
that SJR 38 did not alter the House campaign contribution limit, and presented no
evidence to the circuit court to prove that the 2020 adjustments actually occurred.
We recognize that the Secretary of State may not have made this precise argument
in the circuit court. Challenges to ballot summaries like this case are commonly
litigated on a highly expedited schedule. Such cases are not merely private
21
disputes, but implicate the overriding public interest that voters be given fair and
impartial information, to enable them to exercise their franchise in an informed
manner. Moreover, the Secretary of State’s argument relies on the Consumer Price
Index adjustment mechanism specified in the Constitution itself, Consumer Price
Index data which is documented in official publications of the United States
Department of Labor’s Bureau of Labor Statistics, and the Missouri Ethics
Commission’s official announcement of the campaign contribution limits in effect in
2020. These are matters of which we can take judicial notice.10 In these
circumstances, we believe it is appropriate to consider the Secretary of State’s
argument, even if it varies somewhat from the position the Secretary took in the
circuit court.
Because the House campaign contribution limit has been adjusted upward
based on changes to the Consumer Price Index, but would be returned to its pre-
adjustment level of $2,000 if SJR 38 passes, the second bullet point is accurate
when it states that the resolution would “[r]educe legislative campaign contribution
limits,” not merely the contribution limits for Senate races.
The Challengers also argue that it is necessary to include some reference in
the summary statement to the amount of the reduction to the contribution limits
(which they contend is minimal). For the reasons explained in § I, above, we
disagree. The second bullet point accurately states that, if SJR 38 passes,
legislative campaign contribution limits will be “reduc[ed].” While this may be
vague, it is “accurate as to the purpose of the initiative.” Brown, 370 S.W.3d at 664.
10 Courts around the country have held that historical Consumer Price Index
information is subject to judicial notice. See, e.g., Pickett v. Sheridan Health Care Ctr., 664
F.3d 632, 648 (7th Cir. 2011); Greenhill v. United States, 96 Fed. Cl. 771, 783 n.18 (2011)
(taking notice of Consumer Price Index data with the observation that “courts have freely
taken judicial notice of relevant, readily-available data”); Sweeney v. Sweeney, 135 N.E.3d
1189, 1196 (Ohio App. 2019); Daunhauer v. Daunhauer, 295 S.W.3d 154, 159 n. 9 (Ky. App.
2009).
22
Even if we believed that providing additional information would be preferable, the
General Assembly’s failure to include any more specific information does not
invalidate the “vague but accurate” second bullet. Boeving, 493 S.W.3d at 878.
We reject the Challengers’ attacks on the second bullet point, and conclude
that the circuit court erred in revising it.
III.
The third bullet point of the official summary statement drafted by the
General Assembly tells voters that SJR 38 will
Create citizen-led independent bipartisan commissions to draw
state legislative districts based on one person, one vote, minority voter
protection, compactness, competitiveness, fairness, and other criteria.
The Challengers attack the third bullet point on multiple fronts. They argue
that it fails to mention a critical feature of SJR 38 – its elimination of the position of
Nonpartisan State Demographer. They argue that its statement that SJR 38 will
“create” new redistricting commissions is misleading, since (they contend) the
resolution merely makes minor adjustments, and gives a new name, to redistricting
commissions which have existed for decades. They argue that the statement that
the redistricting commissions will be “citizen-led” and “independent” is inaccurate
and misleading, since the commissions will be appointed by the Governor based on
nominations from the two major political parties, and may contain present or
former elected officials or party operatives. Finally, they argue that the description
of the criteria on which redistricting decisions will be based fails to alert voters to
the substantial revisions to, and re-ordering of, the existing redistricting standards,
and falsely suggests that the listed standards are innovations which will only
become law if SJR 38 passes.
We find three major problems in the third bullet point as currently drafted,
which require that it be rewritten.
23
1. First, the third bullet point fails to make any reference to SJR 38’s
elimination of the office of Nonpartisan State Demographer, one of the primary
features of the redistricting process adopted by voters in 2018.
The Secretary of State’s opening Brief acknowledges the centrality of the
Nonpartisan State Demographer to Missouri’s current redistricting process, and
acknowledges that one of the central features of SJR 38 is to transfer the
Nonpartisan State Demographer’s redistricting responsibilities to the bipartisan
redistricting commissions:
Under current law, the Constitution provides that the “nonpartisan
state demographer” shall have principal responsibility for drawing
legislative maps in Missouri. MO. CONST. art. III, § 3(a).
....
. . . If enacted, SJR 38 will change the process of redistricting by
creating two new entities, called the “house independent bipartisan
citizens commission” and the “senate independent bipartisan citizens
commission.” These entities will replace the nonpartisan state
demographer and assume principal responsibility for redistricting the
house and senate districts, respectively. . . .
SJR 38 eliminates the role of the nonpartisan state
demographer in redistricting for both house and senate districts.
(Record citations omitted.)
The position of Nonpartisan State Demographer created in 2018 by
Amendment No. 1 altered the commission-based process for redistricting which had
existed in Missouri since constitutional amendments in 1966, and which had
governed the last five decennial redistricting cycles. The process for selecting the
Demographer is specified in detail in Article III, § 3(b) of the Constitution. The
involved process detailed in the Constitution is designed to insulate the
Demographer from partisan influence to a substantial extent. First, § 3(b) specifies
that any Missouri resident may apply to become the Demographer. The State
Auditor is charged with reviewing the applications, and submitting to the majority
24
and minority leaders of the Senate a list of at least three candidates “with sufficient
expertise and qualifications, as determined by the state auditor, to perform the
duties of the nonpartisan state demographer.” If the majority and minority leaders
are able to agree on a single candidate, that person becomes the Nonpartisan State
Demographer. If not, each Senate leader may strike up to one-third of the Auditor’s
list of candidates, and the Auditor then selects the Demographer by lot from the
remaining names. The Demographer shall serve a five-year term, and may be
reappointed once. The Demographer may not have held a partisan elected office for
four years prior to appointment, and may not serve in the general assembly for four
years after presentation of the demographer’s last redistricting map.
As discussed above, the Nonpartisan State Demographer prepares tentative
reapportionment plans and maps, using the criteria specified in the Constitution
(criteria which were largely enacted as part of Amendment No. 1 in 2018). Unless
seventy percent of the members of the House or Senate reapportionment
commissions vote to make changes to the demographer’s tentative plans, those
plans take effect.
Given the centrality of the Nonpartisan State Demographer to the reforms
enacted by voters in 2018, the elimination of this constitutional officer is a central
feature of SJR 38. In order for the ballot summary to be fair and sufficient, and
give voters a meaningful sense “of what the proposed amendment would
accomplish,” Sedey v. Ashcroft, 594 S.W.3d 256, 263 (Mo. App. W.D. 2020) (citation
omitted), the elimination of the post of Nonpartisan State Demographer must be
referenced in the ballot title in some fashion.
We recognize that the third bullet point states that, if SJR 38 is passed,
bipartisan commissions will have responsibility for drawing state legislative
districts. Presumably, some other person or entity had the map-drawing
responsibility previously, and one could assume that the previously-responsible
25
person or entity will be divested of authority if it is given to the bipartisan
commissions. But this sort of “negative implication” argument is not sufficient to
alert voters to the elimination of the Nonpartisan State Demographer’s role in the
redistricting process. As the Missouri Supreme Court has recognized, “[s]ometimes
it is necessary for the . . . summary statement to provide a context reference that
will enable voters to understand the effect of the proposed change.” Brown, 370
S.W.3d at 654; see also Boeving v. Kander, 493 S.W.3d 865, 879 (Mo. App. W.D.
2016); Mo. Mun. League v. Carnahan, 364 S.W.3d 548, 553 (Mo. App. W.D. 2011).
The Secretary of State argues that, under Hill v. Ashcroft, 526 S.W.3d 299
(Mo. App. W.D. 2017), “there is no requirement that the summary statement recite
the proposal’s impact on preexisting laws at all.” The Secretary reads Hill far too
broadly. We recognize that Hill states that “Missouri courts have never held that a
summary statement prepared by the secretary of state must explain the initiative’s
potential effect on existing or future statutes to be fair and sufficient.” 526 S.W.3d
at 314. The Court made that statement in a particular context, however. In Hill,
after the Secretary of State had prepared a summary for a proposed constitutional
amendment, the legislature enacted a bill which would arguably have been nullified
if the proposed constitutional amendment were adopted by voters. We held that it
was unnecessary to revise the summary to reflect the passage of the conflicting
statute after the summary’s drafting. We emphasized that requiring that ballot
summaries reflect later developments would create an undue burden on election
authorities, since “the consequences are potentially ever changing due to the
political landscape.” Id. at 314. We also emphasized that, even without an explicit
reference to the later-enacted statute, the effect of the proposed constitutional
amendment on contrary statutes “is self-evident,” since “[i]t is commonly
understood that constitutional amendments will supersede statutes that are in
contravention with the amended constitutional provision.” Id. at 314, 315.
26
 It is in this particular context – where the effect of a proposed constitutional
amendment on contrary statutes was “self-evident” and “commonly understood” –
that Hill held that it was unnecessary for the summary to “explain the initiative’s
potential effect on existing or future statutes.” Id. at 314. Hill does not purport to
modify, or abandon, the general principle that a summary statement “should
accurately reflect both the legal and probable effects of the propos[al].” Shoemyer v.
Sec’y of State, 464 S.W.3d 171, 174 (Mo. 2015) (citing Brown, 370 S.W.3d at 654).
Nor does Hill disavow the principle that “[s]ometimes it is necessary for the . . .
summary statement to provide a context reference that will enable voters to
understand the effect of the proposed change.” Brown, 370 S.W.3d at 654 (citation
omitted). (Nor could Hill reject these fundamental principles, given their
announcement by the Missouri Supreme Court.) In ballot-summary cases, courts
are called upon to apply the open-ended standards of § 116.190.3 (which ask
whether a summary statement “is insufficient or unfair”) to an endless variety of
ballot measures and summary statements – and frequently on a sharply
compressed timetable. Necessarily, each appellate decision in this area is
inherently tied to the specific measures, the specific summary statements, and the
specific circumstances presented in the particular case; any more general
statements appearing in such cases must be read in that light.
In this case, SJR 38’s elimination of the Nonpartisan State Demographer’s
role in the redistricting process is not merely a “potential effect” of passage of the
resolution; SJR 38 proposes to directly eliminate the constitutional provision which
creates the Demographer’s office. Where a ballot measure’s adoption would directly
nullify or substantially alter existing legal rules, reference to the measure’s effect on
existing law may often be necessary to adequately inform voters of “the legal and
probable effects of the propos[al].” Hill is not to the contrary.
27
In this case, to be fair and sufficient the ballot summary must explicitly refer
to the elimination of the constitutional officer who currently holds (in the Secretary
of State’s words) “principal responsibility” for redistricting.
2. Second, the summary statement’s characterization of the redistricting
commissions as “citizen-led” and “independent” fails to accurately describe the
membership and operation of the commissions.
Nothing in SJR 38 requires that the commissions be “citizen-led” in any
meaningful sense, given that their membership is appointed by the Governor from
nominations received from the State’s two major political parties, without
restriction on the public or partisan office those members may currently hold, or
may have previously held.
The term “citizen-led” is given no clear meaning in the Constitution, or by
SJR 38, and we are aware of no judicial decisions or other legal authorities which
give content to the term. In his Brief, the Secretary of State argues that the
bipartisan commissions are properly described as “citizen-led” for the following
reasons:
The new commissions are “citizen-led” within the ordinary and natural
meaning of that phrase, and thus the description is fair and accurate
to the average voter. The word “citizen” means “a member of a state:
one who is claimed as a member of a state,” and (more specifically) “a
civilian as opposed to a soldier, policeman, or other specialized servant
or functionary of the state.” The new house and senate independent
bipartisan commissions are unquestionably led by “citizens” under this
plain meaning of this term. Notably in this context, the commissions
are not led by public officials, and thus they are led by “citizens” in the
specific sense of “civilians” who are not “other specialized servant[s] of
the state,” such as public officials.
(Citations omitted.)
The problem with the Secretary’s argument is that nothing in SJR 38
requires that the bipartisan commissions be made up of “citizens” in this sense, or
that such “citizens” will in fact “lead” the commissions. Although SJR 38 provides
28
that commissioners “shall be disqualified from holding office as members of the
general assembly for four years following the date of the filing by the commission of
its final redistricting plan,” nothing in SJR 38 requires that commissioners be
“civilian[s]” instead of “soldier[s], policem[e]n, or other specialized servant[s] or
functionar[ies] of the state.” Other than the forward-looking prohibition on service
in the General Assembly, nothing in SJR 38 prevents commissioners from being
current or former members of the General Assembly or executive branch, or from
being officials of the political parties. This contrasts with the restrictions currently
applicable to the Nonpartisan State Demographer: in addition to a forward-looking
ban on service in the General Assembly, the Constitution specifies that the
Demographer may not have held partisan elected office in the four years preceding
appointment. Mo. Const. Art. III, § 3(b).
The selection process for the commissioners specified in SJR 38 is similar to
the process used to fill the current redistricting commissions. We are informed by
amici that, in the last redistricting round following the 2010 decennial census, the
leaders of the House and Senate reapportionment commissions included a former
Lieutenant Governor who was also a former member of both the Missouri House
and Senate; an individual who formerly chaired the Missouri Republican Party and
co-chaired the Republican National Committee; and a former State Senate
candidate. Because none of the qualifications for service on the redistricting
commissions have changed, and the selection process is similar, we presume that if
SJR 38 passes, similarly distinguished, politically active individuals, with extensive
prior (or current) histories of public service, may be appointed to, and may lead,
future redistricting commissions. It is difficult to discern how commissions with
such leadership can meaningfully be described as “citizen-led” – or how these
redistricting commissions would be distinguishable from other State commissions
which are not characterized as “citizen-led.”
29
It is also unclear what is meant by the characterization of the commissions as
“independent.” We have explained above that SJR 38 provides that the commission
members will be nominated by the two major political parties (and therefore will be
known to, and potentially active in, those parties), and that they will be appointed
by the Governor. While the work of the commissions may not be subject to direct
supervision or control (except through subsequent judicial challenges), the
commissions are not “independent” of partisan or executive-branch influence
through the selection process. In the context of the revisions of the third bullet
point which are otherwise required, we substitute for the amorphous and undefined
term “independent” a phrase explaining that the commissions will be “governor-
appointed.”
3. A third and final difficulty with the third bullet point is that it asks
Missouri voters whether they wish to amend the Constitution to create bipartisan
commissions to draw state legislative districts “based on one person, one vote,
minority voter protection, compactness, competitiveness, fairness, and other
criteria.” The summary statement falsely implies that SJR 38 establishes the listed
criteria, when they already appear in the Constitution (by virtue of Amendment No.
1); equally important, the third bullet fails to suggest in any fashion that SJR 38
proposes to significantly modify, and fundamentally reorder, the existing
redistricting criteria.
The third bullet point’s listing of redistricting criteria could just as easily
apply to the current Constitution as to the modified version of Article III which
would exist if SJR 38 passes. Each of the redistricting criteria is already contained
in Article III, § 3(c).11 Yet voters may be led by the summary statement to believe
11 “One person, one vote” refers to the requirement that coordinate legislative
districts should have roughly equal population – a principle which already appears in the
Missouri Constitution. See Gray v. Sanders, 372 U.S. 368, 381 (1963) (where the term “one
30
that those criteria will only be applied in Missouri if they cast their ballot in favor of
SJR 38.
We addressed a similar issue in Missouri Municipal League v. Carnahan, 303
S.W.3d 573 (Mo. App. W.D. 2010). In that case, the summary statement for an
initiative petition seeking to restrict eminent domain stated that the initiative
would “requir[e] that any taking of property be necessary for public use and that
landowners receive just compensation.” Id. at 586 (emphasis added). We held that
the emphasized language needed to be removed from the summary statement,
because it would mislead voters that they had to support the initiative if they
wanted to assure property owners received just compensation when, in fact, “the
Missouri Constitution has historically and does currently require just compensation
for takings.” Id. at 588. As we explained in a later, related case, the reference to
“just compensation” “was unnecessary and potentially prejudicial in that it
suggested a change was being made to the Constitution regarding ‘just
compensation’ that was not being amended.” Mo. Mun. League v. Carnahan, 364
S.W.3d 548, 553 (Mo. App. W.D. 2011). For the same reason as in the first Missouri
Municipal League case, the listing of existing redistricting criteria in the third
bullet point, with the false implication that they are being newly introduced, is
unfair and insufficient, and must be removed from the summary.
Besides falsely claiming credit for introducing the redistricting criteria into
the Missouri Constitution, the third bullet fails to acknowledge what SJR 38 would
actually do – substantially modify, and reorder, the redistricting criteria approved
by voters in the November 2018 general election. We have described in the factual
statement above the modifications SJR 38 would make to individual redistricting
criteria. In addition, the resolution would take two of the new criteria approved by
person, one vote” was coined); Evenwel v. Abbott, 136 S. Ct. 1120, 1123-24 (2016)
(discussing evolution of “one person, one vote” principle in Supreme Court’s jurisprudence).
31
voters in 2018 – “partisan fairness” and “competitiveness” – and not only
substantially dilute them,12 but also move these considerations from the very
highest priority category (above geographic contiguity, preservation of existing
political subdivisions, and compactness) to the very lowest priority. Like the
creation of the position of Nonpartisan State Demographer, the heavy weighting of
“partisan fairness” and “competitiveness” is a distinctive feature of the modified
redistricting process which voters approved in 2018; yet the proposed ballot
summary does nothing to suggest that these criteria are being substantially revised
and deprioritized.
The first sentence of the Introduction to the Secretary of State’s opening Brief
lists what he contends are the four primary features of SJR 38. Notably, in that
first sentence, the Secretary of State emphasizes that the resolution would, if
enacted, “(4) amend, clarify, and reorder the criteria used in redistricting.”
(Emphasis added.) Yet this critical feature of SJR 38 – which the Secretary of State
12 Under the existing Constitution as amended by Amendment No. 1, the
Nonpartisan State Demographer is charged with employing the “partisan fairness” and
“competitiveness” criteria to “ensure the difference between the two parties’ total wasted
votes, divided by the total votes cast for the two parties, is as close to zero as practicable.”
Art. III, § 3(c)(1)b (emphasis added). Under SJR 38, the bipartisan commissions are
instructed that this ratio, referred to as “the efficiency gap,” “shall not exceed fifteen
percent.” (Emphasis added.) By permitting an efficiency gap as high as fifteen percent,
SJR 38 would apparently permit a very heavy partisan bias in redistricting plans. As one
court has explained:
A 7 percent efficiency gap is at the edges of the overall
distribution of all state house plans in the modern era, making it
indicative of uncommonly severe gerrymandering. Historical analysis
shows that with a 7 percent efficiency gap, the gerrymandering is also likely
to be unusually durable. Over its lifespan, a plan with an efficiency gap of
that magnitude is unlikely ever to favor the opposing party.
Whitford v. Nichol, 151 F. Supp.3d 918, 922 (W.D. Wis. 2015) (emphasis added); see also
Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the
Efficiency Gap, 82 U. CHI. L. REV. 831, 887 (2015) (recommending a maximum eight percent
efficiency gap for state house plans; recognizing that “[a] gap of at least eight points placed
a [state house redistricting] plan in the worse 12 percent of all plans” over the last five
decades).
32
so prominently highlights in his Brief – is nowhere mentioned in the official
summary statement.
Notably, after acknowledging that modification of the existing redistricting
criteria is a primary feature of SJR 38, the Secretary of State admits in his Brief
that the third bullet point’s listing of redistricting criteria is completely opaque
concerning the genesis of those criteria:
The bullet point does not make any statement whether the listed
criteria will be new or preexisting. It simply states that the new
independent bipartisan commissions will “draw state legislative
districts based on” the criteria listed in the bullet point. The summary
makes no statement, one way or the other, about whether these
criteria are the same, similar to, or different from criteria that are
already used.
(Record citations omitted.) But this is precisely the problem – given that the third
bullet point asks voters whether “the Missouri Constitution [should] be amended to
. . . [c]reate . . . commissions to draw state legislative districts based on” the listed
criteria, it falsely implies that those criteria will only become effective if the
amendment passes. Moreover, in the quoted passage the Secretary candidly admits
that the third bullet point gives voters absolutely no notice of the significant
revisions to the existing redistricting criteria effected by SJR 38.
* * * * *
In order to address the deficiencies in the third bullet point which we have
discussed above, we have drafted revised language for the third bullet point.
As pointed out by Challengers, this is apparently only the second time when
we have addressed a situation in which a proponent has sought to put a measure on
a general election ballot which would have the effect of substantially altering or
undoing a measure which voters approved at the immediately preceding general
election. In that earlier case, Cures Without Cloning v. Pund, 259 S.W.3d 76 (Mo.
App. W.D. 2008), we upheld language in a summary statement drafted by the
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Secretary of State, which stated that the initiative sought “to limit Missouri
patients’ access to stem cell research, therapies and cures approved by voters in
November 2006 by [adopting certain restrictions].” Id. at 80 (emphasis added). The
Missouri Supreme Court has recognized that “[s]ometimes it is necessary for the . . .
summary statement to provide a context reference that will enable voters to
understand the effect of the proposed change.” Brown, 370 S.W.3d at 654. As in
Cures Without Cloning, we believe that voters need to be informed that they are
being asked to reconsider, and substantially modify, a measure which they only
recently approved.
Accordingly, we strike the existing third bullet point, and replace it with the
following:
Shall the Missouri Constitution be amended to:
....
• Change the redistricting process voters approved in 2018
by: (i) transferring responsibility for drawing state legislative districts
from the Nonpartisan State Demographer to Governor-appointed
bipartisan commissions; (ii) modifying and reordering the redistricting
criteria.
We recognize that, in its judgment, the circuit court reversed the order of the
bullet points of the summary statement drafted by the General Assembly, putting
the redistricting issue first, the campaign contribution limitations second, and the
gift restrictions third. The court also substantially rewrote each of the summary’s
three bullet points. While we have substantially rewritten the third bullet point to
address the specific deficiencies we have described above, and have slightly
modified the wording of the first bullet point, we do not engage in any broader
revision or reordering of the summary’s provisions, and believe it was error for the
circuit court to make more far-reaching modifications. We have previously
explained that, after identifying deficiencies in a ballot summary, we will revise the
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existing summary “while modifying the [existing] language in the most limited
fashion possible.” Boeving, 493 S.W.3d at 883; see also Cures Without Cloning, 259
S.W.3d at 83 (while circuit court was authorized to change a single word of
summary statement to correct a deficiency, “the court was not authorized to re-
write the entire summary statement”). We follow that same path here.
Accordingly, we do not reorder the summary statement’s bullet points, which are
fair and sufficient as rewritten, and follow the order in which the three items
appear in SJR 38 itself. Nor do we modify the language of the existing summary
more broadly than necessary to address the specific deficiencies we have identified.
Conclusion
For the reasons explained above, the circuit court’s judgment is affirmed in
part and reversed in part.
It is now well-established “that § 116.190.4 authorizes the circuit court to
certify alternative language to the Secretary of State where the circuit court finds
the existing summary statement language to be deficient. We have also held that,
where this Court concludes that the summary statement is insufficient or unfair, we
‘step into the circuit court’s shoes’ by virtue of Supreme Court Rule 84.14.” Boeving
v. Kander, 493 S.W.3d 865, 882 (Mo. App. W.D. 2016). Accordingly, we certify the
following summary statement for inclusion in the official ballot title for Amendment
No. 3, to appear on the November 3, 2020 general election ballot:
Shall the Missouri Constitution be amended to:
• Ban gifts from paid lobbyists to legislators and their
employees;
• Reduce legislative campaign contribution limits;
• Change the redistricting process voters approved in 2018
by: (i) transferring responsibility for drawing state legislative districts
from the Nonpartisan State Demographer to Governor-appointed
bipartisan commissions; (ii) modifying and reordering the redistricting
criteria.
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In compliance with § 116.155.2, this modified summary statement consists of fifty
words, excluding articles.
Alok Ahuja, Judge
All concur.
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