What does it take to clear the Missouri AG's check on the form of an initiative petition amending the state constitution?

Plain-English summary

Heidi Miller submitted a proposed initiative petition (2020-062) to amend Article IV of the Missouri Constitution. Article IV governs the Executive Department, covering the offices of the Governor, Lieutenant Governor, Secretary of State, Auditor, Attorney General, Treasurer, and the executive departments and boards.

Missouri's initiative process routes petitions through two checks before circulation. First, the Secretary of State refers the proposal to the Attorney General for a "sufficiency as to form" review under § 116.332, RSMo. Then the Secretary of State makes the "final decision as to the approval or rejection of the form of the petition" under § 116.332.4.

AG Eric Schmitt rejected the petition. The single stated reason: the petition was "not in the form prescribed by § 116.040, RSMo." Section 116.040 sets out the mechanical formatting requirements for initiative petitions: required heading language, statement to the voter, voter affirmation, signature spaces, and so on. A petition that omits or misformats any of these elements fails sufficiency.

Because the AG rejected for form, he did not examine the petition for any additional substantive deficiencies. The Secretary of State retained authority to accept or reject the petition independently.

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 is "sufficiency as to form" review?
A: A formal check on whether an initiative petition follows the mechanical requirements of § 116.040, RSMo. The review does not address the substance of the proposal, only the layout, required headings, voter statement, signature spaces, and similar elements.

Q: What does § 116.040 require?
A: Specific structural elements that every Missouri initiative petition must contain. A typical petition needs a heading identifying it as an initiative petition, the language of the proposed measure, a statement informing the voter what they are signing, the proposer's name and address, signature blocks, and certification language. A petition missing any required element fails the form check.

Q: Does the AG's rejection mean the petition is dead?
A: No. Under § 116.332.4, the Secretary of State has final authority to approve or reject the form of the petition. The Secretary can disagree with the AG and accept the petition for circulation, or the sponsor can fix the form defect and resubmit.

Q: What was Heidi Miller trying to amend?
A: Article IV of the Missouri Constitution, the Executive Department. The opinion does not describe the substance of the proposal because the AG's form review never reaches substance.

Q: How many initiative petitions does the Missouri AG review each year?
A: Hundreds during active initiative cycles. The Secretary of State refers every initiative petition for sufficiency-as-to-form review before approving it for circulation, and the AG must respond within statutory deadlines.

Q: Why does Missouri require pre-circulation form review?
A: To avoid wasted petitioning effort and avoid putting voters in front of poorly drafted measures. A petition that fails statutory form requirements would be subject to challenge after circulation anyway, so the pre-circulation check catches errors before sponsors spend money gathering signatures on a defective petition.

Background and statutory framework

Chapter 116, RSMo, governs Missouri's initiative and referendum processes. Sections 116.040 through 116.080 set out the formal requirements for initiative petitions. Section 116.040 in particular prescribes the structural form: heading language, statement to the voter, blank signature spaces formatted to specification, certifications, and other elements. Petitions that deviate from the prescribed form are subject to rejection.

Section 116.332 routes petitions through three checkpoints. The Secretary of State first receives the proposed petition. The Secretary refers it to the AG, who must review for "sufficiency as to form" and respond. The Secretary then makes the final decision under § 116.332.4: "the secretary of state shall review the opinion of the attorney general and make a final decision as to the approval or rejection of the form of the petition." The Secretary is not bound by the AG's opinion.

The AG's review is narrow. It examines whether the petition complies with § 116.040's mechanical formatting requirements. It does not examine whether the underlying proposal is constitutional, whether it would work as intended, or whether the proposed amendment is good policy. A petition can fail sufficiency as to form while having impeccable substance, and vice versa.

Sponsors whose petitions are rejected typically fix the formatting defect and resubmit. The AG identifies the defect in the rejection letter so the sponsor knows what to fix. In 84-2019, the only stated defect was non-compliance with § 116.040, without further specification.

Article IV of the Missouri Constitution covers the Executive Department. The article has been amended numerous times, including major reorganizations of state agencies. The opinion does not describe what Heidi Miller's specific amendment proposed.

Source

• Landing page: https://ago.mo.gov/other-resources/ag-opinions/
• Original PDF: https://ago.mo.gov/wp-content/uploads/attachments/84-2019.pdf?sfvrsn=2

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF MISSOURI
ERIC SCHMITT

May 6, 2019
OPINION LETTER NO. 84-2019

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 April 26, 2019, for our review under § 116.332, RSMo, of the sufficiency as to form of an initiative petition submitted by Heidi Miller (2020-062).

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

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

Very truly yours,

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-2019-0090