Did the Missouri AG approve the form of the Jackie Johnson initiative petition (2020-050)?

Plain-English summary

Attorney General Eric Schmitt rejected the form of Jackie Johnson's initiative petition designated 2020-050 on two distinct grounds. First, the petition was not in the form prescribed by § 116.040, RSMo, which sets out the general structural requirements for initiative petitions in Missouri (signature lines, marginal printing, layout). Second, the petition did not comply with § 116.050, RSMo, which requires that any matter to be deleted from the existing statute or constitution be enclosed in brackets at its proper place, and that all new matter be shown underlined. The markup requirement of § 116.050 is what lets voters and reviewers see exactly what the petition would change.

Because the rejection was on form grounds, the AG did not review the petition for any additional deficiencies (the standard rule when a § 116.040 or § 116.050 defect is identified). § 116.332.4 leaves the final form decision with the Secretary of State, who can review the AG's opinion and make the call.

The opinion does not describe the substantive subject matter of the Johnson petition. AG form-review letters are typically silent on substance because the AG is not reviewing for substance.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does § 116.040 require?

§ 116.040 of the RSMo sets out the standard structural form for initiative petitions: signature lines, marginal printing of the proposed measure, layout. It is a formatting checklist; failures are typically mechanical rather than substantive.

What does § 116.050 require?

§ 116.050 specifies the markup convention for showing changes to existing law: text to be deleted goes in brackets at its proper place, and new text is underlined. Without this markup, voters and the Secretary of State cannot tell at a glance what the petition would change. This is one of the most common form-rejection grounds, because drafters who do not regularly file initiatives often miss the markup rule.

Can the proponent resubmit?

Yes. Form rejections do not bar refiling. The proponent fixes the identified defects and resubmits a corrected petition, which then gets a fresh AG review.

Why does the AG stop at the first defect?

Because § 116.332 limits the AG's review to form. Once a form defect is found that requires the petition to go back to the proponent, additional review is not useful. The proponent fixes what's been flagged, resubmits, and the AG looks at the new draft.

Does the AG's rejection bind the Secretary of State?

No. § 116.332.4 reserves the final form decision to the Secretary of State. In practice the Secretary almost always follows the AG, but the Secretary can theoretically accept a petition the AG rejected (or vice versa).

Background and statutory framework

Missouri's initiative-petition process is in Chapter 116 of RSMo. § 116.040 covers the structural form of the petition. § 116.050 covers the markup convention for changes to existing law. § 116.332 governs the AG's form review; § 116.332.4 reserves the final form decision to the Secretary of State. The constitutional initiative process runs through Mo. Const. art. III, §§ 49 to 53.

Citations

• § 116.040, RSMo (structural form requirements for initiative petitions)
• § 116.050, RSMo (markup convention: deletions in brackets, new matter underlined)
• § 116.332, RSMo (AG form review)
• § 116.332.4, RSMo (Secretary of State final authority)
• Mo. Const. art. III, §§ 49 to 53 (initiative and referendum process)
• Initiative Petition 2020-050 (Johnson)

Source

• Landing page: https://ago.mo.gov/other-resources/ag-opinions/
• Original PDF: https://ago.mo.gov/wp-content/uploads/attachments/61-2019.pdf?sfvrsn=2

Original opinion text

ATTORNEY GENERAL OF MISSOURI
ERIC SCHMITT
JEFFERSON CITY
ATTORNEY GENERAL
65102
P.O. Box 899
(573) 751-3321

March 28, 2019

OPINION LETTER NO. 61-2019

The Honorable John R. Ashcroft
Missouri Secretary of State
James C. Kirkpatrick State Information Center
600 West Main Street
Jefferson City, MO 65101

Dear Secretary Ashcroft:

This opinion letter responds to your request dated March 18, 2019, for our review under § 116.332, RSMo, of the sufficiency as to form of an initiative petition submitted by Jackie Johnson (2020-050).

We conclude that the petition must be rejected for at least the following reasons:

1. The petition is not in the form prescribed by § 116.040, RSMo.

2. The petition does not contain "all matter which is to be deleted included in its proper place enclosed in brackets and all new matter shown underlined" as required pursuant to § 116.050, RSMo.

Because of our rejection of the form of the petition for the reasons stated above, we have not reviewed the petition to determine whether additional deficiencies exist. Pursuant to § 116.332.4, RSMo, the Secretary of State is authorized to review this opinion and "make a final decision as to the approval or rejection of the form of the petition."

OP-2019-0061

The Honorable John R. Ashcroft
Page 2

Very truly yours,

ERIC S. SCHMITT
Attorney General

OP-2019-0061