If a Missouri initiative petition doesn't show its proposed deletions in brackets and additions underlined, will the Attorney General reject it?

Plain-English summary

AG Eric Schmitt rejected the form of an initiative petition submitted by Charles Hurth, designated 2020-065, that proposed to amend Article VII of the Missouri Constitution. The rejection turned on a single procedural defect: § 116.050, RSMo requires that when an initiative changes existing constitutional language, the petition has to show the words being deleted enclosed in brackets and the new words being added underlined. Hurth's petition did not.

The AG did not reach any other question. Once the form defect was found, the review stopped there. Under § 116.332.4, RSMo, the Secretary of State has the last word on whether to approve or reject the petition's form, so the AG's rejection is a recommendation, not a final order. In practice, though, the Secretary of State almost always defers to the AG's form review.

Article VII of the Missouri Constitution covers public officers, including provisions on impeachment, oath of office, removal, and personnel administration. The substantive amendment Hurth proposed is in the underlying petition filed with the Secretary of State, not in this opinion letter.

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

Q: What exactly does § 116.050, RSMo require?
A: The statute requires that when a constitutional amendment petition modifies existing language, "all matter which is to be deleted included in its proper place enclosed in brackets and all new matter shown underlined." That marks the proposed changes in a way voters can read and election officials can certify against the existing constitutional text. A petition that just states the final proposed language without showing what was struck and what was added fails the rule.

Q: Why is this a hard rule rather than a forgivable foot-fault?
A: Initiative petitions become the actual ballot question, and eventually the actual constitutional text if approved. Voters need to see what they are changing. Election officials need a clean record of which words are being added or removed. Without the bracket-and-underline showing, the petition is ambiguous about its own scope, which Missouri courts have treated as a substantive rather than cosmetic flaw.

Q: Can the proponent fix it and refile?
A: At the time of this opinion, yes — proponents routinely refile corrected versions under new state-file numbers. The cost is time on the signature-gathering calendar.

Q: Does AG rejection kill the petition outright?
A: No. Under § 116.332.4, RSMo, the Secretary of State makes the final decision. As a practical matter, the Secretary nearly always follows the AG's form determination, but the statute leaves that final call with the Secretary.

Background and statutory framework

Missouri's initiative process is in Chapter 116 of the Missouri Revised Statutes, and the constitutional grant of the initiative power is in Article III, § 50. When a proponent files an initiative petition with the Secretary of State, § 116.332 requires the Secretary to submit it to the Attorney General for review of "sufficiency as to form." That review checks the procedural and structural requirements set by § 116.050 and surrounding statutes. Sufficiency as to form is narrower than sufficiency as to substance: the AG is not opining on the merits, constitutionality, or drafting quality of the proposal.

The § 116.050 bracket-and-underline rule applies specifically to petitions that modify existing constitutional or statutory text. It is one of the most common reasons the AG rejects initiative petitions on form, alongside missing required statements, malformed captions, and improper proposition titles.

Citations

• § 116.332, RSMo (initiative petition form review by AG)
• § 116.050, RSMo (format rules for petitions modifying existing text)
• § 116.332.4, RSMo (Secretary of State's final authority on form decision)
• Mo. Const. art. III, § 50 (initiative power)
• Mo. Const. art. VII (public officers, the target of Hurth's proposed amendment)

Source

• Landing page: https://ago.mo.gov/other-resources/ag-opinions/
• Original PDF: https://ago.mo.gov/wp-content/uploads/attachments/89-2019.pdf?sfvrsn=2

Original opinion text

ATTORNEY GENERAL OF MISSOURI
ERIC SCHMITT

May 23, 2019
OPINION LETTER NO. 89-2019
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 May 13, 2019,
for our review under § 116.332, RSMo, of the sufficiency as to form of an initiative
petition submitted by Charles Hurth (2020-065).
We conclude that the petition must be rejected for at least the following reason:
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."

ERIC S. SCHMITT
Attorney General

Broadway Building
P.O. Box 899
Jefferson City, MO 65102
Phone: (573) 751-3321
Fax: (573) 751-0774
www.ago.mo.gov

OP-2019-0098