Auditor: Missouri Attorney General had no authority to inflate cost of abortion amendment

Missouri Attorney General Andrew Bailey overstepped his authority when he demanded changes to the cost estimate of an abortion-rights initiative petition, state Auditor Scott Fitzpatrick argued in a legal brief filed in Cole County Court last week.

Fitzpatrick, Bailey and Secretary of State Jay Ashcroft, all Republicans, were sued last month by the Missouri ACLU over delays in finalizing the ballot summary for an initiative petition seeking to enshrine abortion rights in the state constitution.

Emails obtained by The Independent show Fitzpatrick’s office completed its work on the amendment’s cost estimate, but Bailey refused to give what has traditionally been considered perfunctory approval.

Bailey insisted the auditor inflate the fiscal estimate to say the amendment would cost the state billions of dollars. Fitzpatrick said that would be a lie and refused.

Because of the impasse, Ashcroft has said he can’t complete his work on the summary, and thus, supporters cannot begin collecting signatures to place the issue on the 2024 ballot.

The case is scheduled for trial on Wednesday morning, with the ACLU asking Cole County Circuit Court Judge Jon Beetem to order Ashcroft to finalize the summary.

In a brief filed last week, the auditor’s office argued Missouri law is clear that the attorney general has “no more than a perfunctory, ministerial role in the fiscal note summary process” for proposed initiative petitions.

“There is an absolute absence of authority to conclude the attorney general is permitted to send the auditor’s fiscal note summary back for revision because he disagrees with the auditor’s estimated cost or savings of the measure,” wrote Leslie Korte, the auditor’s general counsel.

Missouri outlawed virtually all abortions last year, leading reproductive rights advocates to file 11 versions of a proposed initiative petition with Ashcroft’s office in early March seeking to add protections for the procedure to the state constitution.

Before a proposed initiative petition may be circulated for signatures, the secretary of state sends it to the auditor to create a fiscal note and a fiscal note summary. And after consulting with state and local governments, as well as anti-abortion advocates, the auditor’s office concluded there would be “no costs or savings” due to the abortion amendment.

Bailey refused to sign off on the summary unless Fitzpatrick changed it to declare that the amendment could cost the state at least $12.5 billion in lost Medicaid funding, as well tens of billions in possible lost tax revenue because “aborting unborn Missourians will have a deleterious impact on the future tax base.”

Fitzpatrick refused, saying that while he opposed the abortion-rights initiative, he could not include inaccurate information in a fiscal summary.

In last week’s court filing, Korte argued that the fiscal summary prepared for each of the 11 initiative petitions satisfies the requirements of state statute and the attorney general is “required by law to approve them as to legal content and form.”

Korte noted that the General Assembly eliminated the attorney general’s statutory authority to draft the fiscal note summary for a proposed initiative more than 40 years ago.

Bailey’s office also filed a response to the lawsuit last week, arguing that if proponents of the initiative petition were concerned that they wouldn’t have enough time to collect signatures, they should have submitted their proposals earlier.

An initiative petition can be filed at any point after the most recent general election, Assistant Attorney General Samuel Freedlund wrote. But in this case, proponents waited until March.

“(Plaintiff) cannot sit on her hands and then demand the court grant her relief as a consequence of her own actions,” Freedlund wrote.

Meanwhile, Ashcroft is asking the judge to dismiss the secretary of state’s office from the lawsuit altogether.

None of the allegations “regarding the attorney general’s disapproval of the proposed fiscal notes and fiscal note summaries suggest that the secretary of state had any role in any deliberations or decision,” Freedlund wrote on behalf of Ashcroft’s office.

Ashcroft hasn’t finalized the ballot summary, Freedlund says, because state law doesn’t permit him to do so without an approved fiscal estimate.

The ACLU says Ashcroft is incorrect in his belief that he is “impotent to do anything other than wait for the auditor or attorney general to change his respective mind.” If true, the organization wrote, that would give Bailey veto power over the initiative petition process.

This story was originally published by the Missouri Independent, part of States Newsroom.

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