State Ex Rel. Nixon v. Blunt

STEPHEN N. LIMBAUGH, JR., Judge,

concurring and dissenting.

I concur in the opinion of the Court that the attorney general’s request for a writ of mandamus is denied. The Court correctly holds that under section 116.160, RSMo 2000, “The [secretary of [sjtate was correct that his statutory duties regarding the placement of any proposed constitutional amendment on the ballot are not finally triggered until his ‘receipt’ of the original document.” I would add that not only does section 116.160 include a “receipt” requirement, but also that it affords the secretary of state 20 days thereafter for the preparation of a ballot summary, and that mandamus will not lie against the secretary unless he fails to act within that 20-day period. In that regard, section 116.160.1 states, in addition to that part of the statute cited in the majority opinion, that

If the general assembly adopts a joint resolution proposing a constitutional amendment or a bill without an official summary statement, which is to be referred to a vote of the people, within 20 days after receipt of the resolution or bill, the secretary of state shall prepare and transmit to the attorney general a summary statement of the measure as the proposed statement....

Under this provision, even if the secretary of state had received the joint resolution immediately upon its final adoption on May 14, the 20-day period would not have run until June 3. In this case, though, whether the secretary of state is or would have been subject to mandamus on May 28, when the resolution was actually received, or 20 days thereafter, or even on June 3, the petition for writ of mandamus is moot because of the inability to meet the May 25th ten-week deadline under section 116.240, which states:

Not later than the tenth Tuesday prior to an election at which a statewide ballot measure is to be voted on, the secretary of state shall send each election authority a certified copy of the legal notice to be published. The legal notice shall include the date and time of the election and a sample ballot.

That brings me to the reason for my dissent. By ordering the secretary of state to proceed with an August 3rd election regardless of the ten-week deadline, the Court effectively renders section 116.240 unenforceable, and I suppose unconstitutional, at least in relation to the governor’s power to call special elections. This is the import of the majority’s conclusions that “[n]o statute precludes the secretary of state from sending an amended notice to each election authority subsequent to the tenth Tuesday before the election,” and “[t]he secretary of state cannot exercise the duties of his office in a manner to frustrate the governor’s constitutional authority to set the election date for the submission of this question to the *422people.” I would hold, instead, that the section 116.240 deadline is a prerequisite to the conduct of this or any other election, subject only to the several statutory exceptions set out in footnote 2 of the majority opinion.

At this point, it is helpful to restate the pertinent part of article XII, section 2(b), of the Missouri Constitution:

All amendments proposed by the general assembly or by the initiative shall be submitted to the electors for their approval or rejection by official ballot title as may be provided by law ... at the next general election, or at a special election called by the governor prior thereto....

Nothing in this provision even vaguely suggests that the delegation of authority to the governor is not otherwise subject to statutory election procedures. In fact, the use of the phrase “as may be provided by law” is a clear delegation of authority to the general assembly to enact the procedures it deems necessary for the orderly conduct of the elections contemplated in section 2(b), and those procedures include the section 116.240 ten-week deadline at issue here. Thus, in my view, the proper resolution is one that gives effect both to the governor’s power to call a special election and the general assembly’s concomitant power to enact election procedures. Though in this case the ten-week procedural deadline would preclude an August 3rd election, it would not preclude the governor from calling a special election on some other date after August 3rd but before the general election on a date in November, provided that the ten-week notice period is honored.

Tellingly, even the attorney general concedes that section 116.240 should be given full effect as with all of the other statutory election procedures. In fact, the attorney general’s express claim for relief was to secure full compliance with section 116.240 by ordering the secretary of state to give notice of the resolution election by May 25, ten weeks before the August 3rd primary. Indeed, the attorney general’s argument, all along, is based on his interpretation of the election laws, not that they do not apply. As the majority concedes, “the focus of the litigation below was that the secretary of state had not yet received from the legislature the original copy of the resolution.” In any event, in its brief, the attorney general made clear that he was not challenging the statute:

Although additional litigation may ensue challenging the constitutionality of the May 25 deadline in section 116.240, that litigation cannot be between these parties — secretary Blunt must abide by all of the statutes and the constitution, and the attorney general will abide by his constitutional duty to defend the secretary and the statutes.

Even now after the May 25 deadline has passed, the attorney general still declines to challenge the statute’s validity or application and argues only that the secretary should have met the May 25 deadline (though the majority holds otherwise in denying the writ). Ultimately, and unfortunately, the Court does away with the mandate of section 116.240, although no party has challenged its application or validity.

I also wish to address Judge Benton’s position that section 115.125.2 controls. In my view, that section does not provide this Court with the carte blanche authority to change the ballot until six weeks prior to the election. Judge Benton cites only a part of section 115.125.2. That section provides in its entirety:

Except as provided for in section 115.247 and 115.359 [provisions not applicable here], if the political subdivision or special district calling for the *423election agrees to pay any printing or reprinting costs, a political subdivision or special district may, at any time after certification required in subsection 1 of this section, but no later than 5:00 p.m. on the sixth Tuesday before the election, be permitted to make late notification to the election authority pursuant to court order, which, except for good cause shown by the election authority in opposition thereto, shall be freely given upon application by the political subdivision or special district to the circuit court of the area of such subdivision or district. No court shall have the authority to order an individual or issue be placed on the ballot less than six weeks before the date of the election, except as provided in sections 115.361 and 115.379.

(emphasis added).

The secretary of state makes the plausible argument that the statute must be read as a whole, and when that is done, the last sentence of the statute applies only to elections called by “political subdivisions” and “special districts,” not statewide elections as here. However, assuming, as does Judge Benton, that the last sentence of section 115.125.2 applies to all elections, it still provides no authority to place SJR 29 on the August 3rd ballot. I also read section 115.125.2’s six-week deadline to be a “drop dead date,” but I do not take the position that this six-week deadline is the “real” deadline whereas the ten-week deadline is merely directory but not mandatory, which essentially is Judge Benton’s argument. Instead, I would hold that the legislature intended both deadlines to have effect. The ten-week deadline in section 116.240, which is indeed couched in mandatory terms, is the date when the sample ballot and notice must be delivered to each election authority. The specific instances meticulously listed in footnote 2 of the majority opinion are then exceptions to this rule and are obviously designed to address those situations in which the general assembly has determined that the ten-week deadline should be waived. These are the changes that are permitted up to the six-week deadline, again assuming it applies to all election statutes. It simply makes no sense that the ten-week deadline in section 116.240 is merely directory rather than mandatory, because if it were directory only, the general assembly would have no need or reason to enact the several statutory exceptions to the ten-week deadline.

Finally, Judge Benton’s summation requires an additional response. First, though it is true that “the governor called a special election over ten weeks before the election,” the call for election was not made within the statutory timeframe allowed for the secretary of state to act. Second, though it is true that “all four statewide offices involved agree that all required acts will be completed more than six weeks before the election,” the practicality of doing so does not do away with the constitutionally authorized statutory ten-week deadline. Third, though it is true that “local election authorities had notice ten weeks before the election,” that notice was not the statutorily required notice because it did not include a ballot title and sample ballot, which are the very reasons for the notice.

I would sum up the application of section 115.125.2 in this way: Section 115.125.2 does not provide affirmative authority to change a ballot up to six weeks before an election, it is only a deadline that must be met if there is an independent basis to change the ballot. For instance, in this case, if the secretary of state had received SJR 29 on May 1, well within the May 25 ten-week deadline, but for some reason failed to include the measure on the notice of election and sample ballot for *424August 3, then, certainly, this Court could order the measure to be placed on the ballot after May 25, but before the six-week deadline of section 115.125.2. That situation does not present itself here.

For these reasons, I am unable to join the Court’s opinion, and I agree only that the sole relief requested, a writ of mandamus, should be denied.