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Missouri Supreme Court unanimously rejects attorney general on abortion petitions

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(The Center Square) – Less than 48 hours after hearing arguments, the Missouri Supreme Court unanimously upheld a circuit court decision ordering Republican Attorney General Andrew Bailey to approve documents needed to gain signatures to put an abortion rights amendment on the ballot.

Bailey refused to approve Republican Auditor Scott Fitzpatrick’s fiscal notes for 11 petitions, stating they underestimated the cost to the state if its abortion laws were overturned at the ballot box.

Calling Bailey’s actions “preposterous” in June, Cole County Circuit Judge Jon Beetem ruled in favor of Dr. Anna Fitz-James in a lawsuit accusing Bailey of overstepping his authority by declining to approve the information. He later gave Bailey 24 hours to approve the financial estimates, but Bailey appealed to the Supreme Court.

“We disagree with the Court’s decision, as we believe Missourians deserve to know how much this amendment would cost the state, but we will respect the Court’s order,” Madeline Sieren, deputy press secretary for the attorney general, wrote in an email to The Center Square.

Bailey had no ability under state law to reject the Auditor’s estimate, which the attorney general said underestimated state costs by billions, Judge Paul Wilson wrote in the 20-page decision.

“Instead, the Attorney General’s authority extends only to reviewing the ‘legal content and form’ of the fiscal notes and summaries prepared by the Auditor, not their substance,” Judge Wilson wrote. “Because the circuit court in this case did not err in finding there was no defect in the ‘legal form and content’ of the fiscal note summaries prepared by the Auditor concerning Fitz-James’s proposed initiative petitions, the Attorney General’s refusal to perform the plain, unequivocal, and ministerial duty of approving those summaries (and informing the Auditor he has done so) cannot be justified.”

The ACLU of Missouri said the certification process for a ballot initiative should take 54 days, including Bailey approving the financial information within 10 days of receiving the documents. Bailey’s actions have caused the process to take 135 days, the ACLU stated.

“At every level of our judicial system, the courts saw the Attorney General’s effort to derail the initiative process for what it was: a deliberate threat to direct democracy,” Anthony Rothert, the director of integrated advocacy at the ACLU of Missouri who argued before the Supreme Court, said in a statement. “As obviously unconstitutional as his scheme was, it succeeded in wasting valuable time. If the Attorney General and Secretary of State are serious about their oaths to the constitution, they will carry out their duties today, not cause more delay.”

Judge Wilson stated Bailey’s argument on Fitzpatrick’s estimates not having proper “legal content and form” can’t be used to take Fitzpatrick’s authority away from assessing fiscal impacts. Bailey also argued Fitzpatrick’s language was biased and would be influential to voters.

“Instead, he claims the content of the notes is likely to prejudice voters in favor of the proposals by underestimating the fiscal impact,” Judge Wilson wrote. “And, because he believes the fiscal notes understate the costs to state and local governments, the Attorney General claims the summaries inevitably do so as well. The Attorney General has no authority … to refuse to approve fiscal note summaries on such grounds.”

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