Post-election Review of Ballot Titles

In August 2012, my blog post  “Challenges to Initiative Petitions Limited”  noted the Missouri Supreme Court  in Brown v.  Carnahan stated that  the  courts will not intervene in the initiative process  “in order to avoid encroachment on the people’s authority” but when they do  “…they  must act with restraint,  trepidation  and a healthy suspicion of the partisan who would use the judiciary to prevent the initiative process from taking its course.”

Less than three years later the Missouri Supreme Court  surprised everyone  when it  expanded   post-election election review of ballot titles in  Dotson v.  Kander, by allowing a post-election review of an  amendment to the Missouri Constitution pertaining to the right to keep and bear arms. For a discussion of Dotson v.  Kander,  you may want to look at my post Adoption of Constitutional Amendment did not Change Existing Law.

Since the Missouri Supreme Court utilized a state statute  (seemingly applicable only to the state) as the basis for its post-election review in Dotson v. Kander,   the decision may not be applicable to local government ballot issues.   One of the difficulties with  pre-election challenges to ballot titles  is that there may be insufficient time to get a decision from  a  trial court and appeal that decision in order to get a final decision before the election, making it almost a  due process necessity that there is post- review of ballot titles.  It would seem that  suggested procedures outlined by the Missouri Supreme Court  could apply in situations where there is insufficient time to get a final decision    concerning a challenge to a ballot title prior to the election.

Howard Wright © 2016

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