If the Missouri Attorney General approves an initiative petition 'as to form,' does that mean the petition is constitutional or that it will be on the ballot?

Plain-English summary

AG Eric Schmitt approved the form of an initiative petition submitted by Mark Pedersen, designated 2020-070, that proposed an amendment to Article XIV of the Missouri Constitution. Article XIV currently houses Missouri's medical marijuana provisions (added by initiative in 2018) and was a frequent target for proponent-filed cannabis-related amendments in the 2020 cycle.

The opinion is careful about three lines it does not cross:

1. Form approval does not bind the Secretary of State. Section 116.332 gives the Secretary of State the final word on form approval or rejection; the AG's approval is advisory in the rare case the Secretary disagrees.
2. Form approval is not substance approval. The petition can pass form review and still fail substance challenges, such as single-subject violations or constitutional defects in the proposed text.
3. Form approval is not an endorsement. Because the AG's review is statutorily required, the AG's act of approving says nothing about whether the AG supports the petition's objectives.

The opinion does not describe what Pedersen's petition substantively proposed; that text is in the petition filed with the Secretary of State.

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: If the AG approves form, why isn't that the end of the matter?
A: Because Missouri builds in multiple gates. After AG form approval, the Secretary of State certifies the petition for circulation, the State Auditor prepares a fiscal note, the AG approves the fiscal note summary, the Secretary of State prepares a ballot title, both can be challenged in court, and finally the proponent has to collect a constitutionally specified number of valid signatures across the required congressional districts within a fixed window. AG form approval is just step one.

Q: What is Article XIV of the Missouri Constitution?
A: Article XIV was added by the 2018 Amendment 2 (the medical marijuana initiative), establishing the medical use of marijuana. In 2020 and 2022, additional Article XIV amendments addressing adult-use cannabis were filed and partially passed (Amendment 3 in 2022 expanded cannabis to recreational use). The Pedersen petition in this opinion was one of several Article XIV cannabis-related filings in the 2019 cycle.

Q: Why include a disclaimer about non-endorsement if the AG is just doing a required review?
A: Because Missouri AGs have repeatedly been accused, sometimes in court, of using form review or ballot-title preparation to slow or skew petitions they politically oppose. Including an explicit non-endorsement statement in every form-review letter is the AG office's standing practice to inoculate the work from those accusations.

Q: Where does the Secretary of State's "final" authority over form actually matter?
A: In rare cases, the Secretary of State may approve a petition the AG rejected on form (or, less commonly, reject one the AG approved). Section 116.332 places that final call with the Secretary. As a practical matter, the Secretary usually follows the AG's call, because diverging from it invites litigation either way.

Background and statutory framework

Missouri's initiative process is in Chapter 116 of the Missouri Revised Statutes. Section 116.332 makes the AG's "sufficiency as to form" review a mandatory step, checking the petition against Chapter 116's format requirements. Article III, § 50 of the Missouri Constitution grants the initiative power. Article XIV, the target of the Pedersen petition, currently addresses cannabis and is the most-amended provision of the Missouri Constitution in the past several election cycles.

In 2019 the AG office issued many form-review opinions on petitions filed for the 2020 cycle. Most were approvals; the noted rejections (such as Opinions 89-2019 and 90-2019) generally turned on bracket-and-underline format defects.

Citations

• § 116.332, RSMo (initiative petition form review by AG; Secretary of State's final authority on form decision)
• Mo. Const. art. III, § 50 (initiative power)
• Mo. Const. art. XIV (cannabis-related constitutional provisions)

Source

• Landing page: https://ago.mo.gov/other-resources/ag-opinions/
• Original PDF: https://ago.mo.gov/wp-content/uploads/attachments/93-2019.pdf?sfvrsn=2

Original opinion text

ATTORNEY GENERAL OF MISSOURI
ERIC SCHMITT

June 21, 2019

OPINION LETTER NO. 93-2019
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 June 12, 2019,
for our review under § 116.332, RSMo, of the sufficiency as to form of
an initiative petition to amend Article XIV of the Missouri Constitution
submitted by Mark Pedersen, (2020-070).
We approve the petition as to form, but § 116.332 gives the Secretary of
State final authority to approve or reject the petition. Therefore, our approval
of the form of the petition does not preclude you from rejecting the petition.
Because our review of the petition is simply for the purpose of
determining sufficiency as to form, the fact that we do not reject the petition
is not to be construed as a determination that the petition is sufficient as to
substance. Likewise, because our review is mandated by statute, no action
that we take with respect to such review should be construed as an
endorsement of the petition or of the objectives of its proponents, or the expression
of any view respecting the adequacy or inadequacy of the petition generally.

ERIC S. SCHMITT
Attorney General

Supreme Court Building
207 W. High Street

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

OP-2019-0109