“This time around, we were ready. And we wanted to avoid litigating, of course. And that worked out real well.”
By Tessa Weinberg, Missouri Independent
In a span of a little over two weeks, an initiative petition to legalize recreational marijuana in Missouri made an unexpected comeback.
In late July, unofficial tallies showed the Legal Missouri campaign 2,275 signatures short of the threshold for getting on the ballot, leading many to believe its hopes were dashed.
By August 9, the deficit was gone, and Secretary of State Jay Ashcroft announced he had certified the marijuana petition to appear on the November ballot.
During that window, the campaign behind the initiative petition deployed a novel strategy.
Instead of waiting for certification and turning to the courts, as outlined in state law, it asked the Secretary of State’s Office to do its own review of signatures. The campaign even provided a list of signatures it felt were incorrectly disqualified.
And the maneuver, which surprised veterans of the initiative petition process, worked.
“I don’t recall a time when there were corrections like this that were done outside of the court process,” said Chuck Hatfield, an attorney who has represented numerous initiative petition campaigns over the years.
Hatfield later added: “Procedurally, I think they did something here that is not really contemplated by the statute.”
Most who were interviewed by The Independent about the success of Legal Missouri’s strategy said they believe the ultimate outcome was correct. The campaign collected enough signatures, and thus, deserves to be on the November ballot.
But even those who agree with the outcome say the process wasn’t transparent and risks undermining confidence in the system.
“I think the correct outcome was reached in qualifying [the marijuana petition], but we still don’t have a clear picture of what went wrong in the early counts and how it was addressed,” said Sean Nicholson, who has worked on numerous initiative petition campaigns over the last decade, including an unsuccessful push for ranked-choice voting this year.
“With an eye towards the future,” Nicholson said, “whether you may support or oppose a measure, everyone needs to understand the rules of the road.”
In an August 1 letter obtained by The Independent through an open records request, Marc Ellinger, an attorney for Legal Missouri, detailed errors the campaign believed local election authorities had made in their certification of signatures.
Altogether across Congressional Districts 6 and 7, there were over 4,800 signatures that the campaign believed had been denied in error, and that if certified, would give the campaign a surplus of signatures it needed to be listed on the Nov. 8 ballot.
Ellinger requested Ashcroft’s director of elections conduct an independent review, noting that the campaign had discussed the alleged issues with the Secretary of State’s Office on July 25.
Details on how the review was conducted are scarce.
The Secretary of State’s Office declined to answer a list of questions about the steps it took and the review’s scope.
Reports detailing counties’ final totals for the marijuana initiative petition obtained by The Independent indicate that the Secretary of State’s Office signed off on over 50 counties’ reports, rather than the local election official—suggesting a review that was not limited to just the 14 counties identified in Legal Missouri’s August 1 letter.
Over 40 counties’ reports were signed off on by the Secretary of State’s Office for county totals for a ranked-choice voting initiative petition that was also aiming to make the ballot this year.
A majority of the reports signed “SOS-CP” were dated August 5.
In a statement, JoDonn Chaney, a spokesman for the Secretary of State, said the office “certified the marijuana petition based on signature verification numbers compiled from local election authorities and from further review by his office in the timeframe and by the process allowed by state statute.”
“The process and resulting figures speak for themselves,” he said.
John Payne, a spokesman for the Legal Missouri campaign behind the initiative petition, also declined to answer specific questions.
In a statement, Payne said that if the signatures the campaign identified had not been reviewed, “we fear tens of thousands of Missourians would have been unconstitutionally disenfranchised and Missourians wouldn’t have had the ability to make Missouri the 20th state to legalize, tax and regulate adult use marijuana.”
Staff from eight local election authorities in Congressional Districts 6 and 7 told The Independent they were not contacted by the Secretary of State’s Office to reverify signatures they had reviewed.
One county election office said the Secretary of State’s Office did reach out, but that the task of rechecking signatures was too cumbersome in the midst of administering the August 2 primary.
Tiffany Ellison, the Democratic director of elections in Clay County, said the office was contacted by the Secretary of State to recheck a few pages, but ultimately the state handled much of that process for them.
The Secretary of State’s Office didn’t share what the reasons were for why those select signatures needed to be reviewed, Ellison said. And she couldn’t recall the exact number of signatures.
“I’m not sure exactly what they looked at to make that determination,” Ellison said. “I just know that they contacted us and said they were pages that needed another look.”
‘You want more eyes on the process than just one’
In Congressional District 7, the Legal Missouri campaign was short 1,144 signatures to meet the 30,013 needed, according to unofficial tabulations previously obtained by The Independent and cited in Ellinger’s letter.
Across 11 counties, there were 3,249 signatures that the campaign believed had been struck in error. If all were found to be valid, the campaign would have 2,105 signatures more than the minimum required for Congressional District 7.
On August 9 when Ashcroft announced the initiative petition had made the ballot, it ended up having 1,842 more than the minimum needed in Congressional District 7—meaning nearly 3,000 signatures across the district had been erroneously marked as invalid.
According to Ellinger’s letter, the campaign was short 359 signatures in Congressional District 6 as of August 1, and it had identified 1,645 it felt were wrongly denied. The final tally once the initiative petition made the ballot put the campaign 806 signatures above the required threshold.
Hatfield said it’s not unusual to find hundreds of signatures that have been incorrectly disallowed by local election authorities, or even in some cases 1,000.
“If you told me, ‘We need to find 1,000 signatures in a congressional district,’ I would say, ‘Okay, you got a shot at that,’” Hatfield said. “If you told me, ‘We need to find more than 2,000,’ I would say, ‘It’s unlikely.’”
In one county alone—Greene—the campaign identified over 2,200 signatures it said were denied in error.
Shane Schoeller, the Greene County clerk, said his office had conducted an internal audit of its work when a large number of signatures for the initiative petition to get ranked-choice voting on the ballot were turning up as invalid.
“The audit validated the work that the workers were doing at the time,” Schoeller said.
Schoeller said his office did later add 12 certified signatures to the recreational marijuana initiative petition’s count when a few pages that were previously illegible were rescanned by the Secretary of State’s Office, making them clearer and able to be reviewed.
“That’s the only thing I’m aware of where additional names were added that originally were not there,” Schoeller said in an interview last Tuesday. “But I’m highly confident that I would have been informed that the [Secretary of State] questioned our work.”
After being notified by The Independent of Legal Missouri’s claim of errors, Schoeller contacted the Secretary of State’s Office.
After speaking with Ashcroft’s office, Schoeller said in a second interview on Thursday that there were errors in his office’s count he attributed to a temporary worker who was hired to assist with signature certification.
Changes to the county’s totals were made by the Secretary of State’s Office, Schoeller said, as he was never notified of the issues.
From the unofficial July 25 tabulation to the final total for Greene County and obtained by The Independent, more than 2,000 additional signatures were found to be valid.
Of those, 1,182 were under the “Registered” category, meaning their name, address and signature was acceptable, and 848 were under “Registered, Different Address,” meaning the voter’s address on the petition was different than the one on the voter rolls, but still within the same county.
Schoeller said that it appears the temporary worker did not correctly verify signatures of “Registered, Different Address” records. He also pointed to adjusting to a new electronic system that counties used this year that allowed them to view signature records side by side electronically, rather than comparing paper petitions to info in the voter record.
Multiple counties The Independent spoke with said the electronic system, which was developed by the Secretary of State’s Office, made the process more efficient and easier to use.
Overall, Schoeller said the process worked the way it should, with any errors being caught and corrected before certification was finalized.
“This is part of making sure that you have accountability in government,” Schoeller said. “You want more eyes on the process than just one.”
Avoiding the courts
Under state law, after the secretary of state certifies a petition as either sufficient or insufficient, any citizen can bring an action before the Cole County Circuit Court to attempt to reverse the decision. They have 10 days to do so.
Historically, that is the route taken by campaigns that believe valid signatures have been disqualified.
It’s the path Dan Viets, the Missouri coordinator for the National Organization for the Reform of Marijuana Laws, known as NORML, used in 2016.
That year, an initiative petition Viets worked on to legalize medical marijuana was short roughly 2,200 signatures to make the November ballot, and the campaign sued. Viets recalled the campaign was advised that finding 1,500 signatures would probably be doable, but 2,000 would be a long shot.
“We came really close to getting those 2,000,” Viets said, “but we didn’t quite make it.”
Viets, who helped craft the ballot language for the Legal Missouri initiative petition, said he couldn’t recall if he was aware in 2016 of the process used this year by Legal Missouri to avoid the courts altogether.
“I’m not sure if we knew that was an option,” Viets said. “This time around, we were ready. And we wanted to avoid litigating, of course. And that worked out real well.”
James Harris, a Republican strategist who has worked on initiative petition campaigns in the past, said the route Legal Missouri took is a wise one that campaigns will likely use moving forward to save both time and money.
“Ultimately, if people have spent the time and they have the legal amount of signatures, that measure should appear in compliance with the constitutional right on the ballot,” Harris said, “And if you can save taxpayers money in litigation, it’s a two-for-one win.”
With thousands of signatures verified by the Secretary of State’s Office upon review, Hatfield said an explanation to understand where the breakdown in processes occurred is necessary.
“In the interest of transparency and making sure this process works correctly, the Secretary of State should report to somebody, the public, what happened here,” Hatfield said. “And what’s the Secretary of State’s suggestion on how we keep this from happening again.”
State law permits the Secretary of State to send copies of petition pages to election authorities to verify, and historically, the certification of signatures has been left to local election authorities.
Hatfield said clear guidelines on when and how the Secretary of State’s office will review counties’ certifications outside of the court process should be outlined.
“What you don’t want is different processes at different times and depending on who’s submitting,” Hatfield said. “I don’t have any reason to think that that’s what happened here. But it would be really good to have the Secretary of State clarify the rules for when they are going to second guess the local officials on their certifications.”
Boone County Clerk Brianna Lennon said there is “a lot of gray area in the petitions process, and there’s not one single way to do things.”
“It’s really incumbent on the Secretary of State’s Office to determine how involved they want to be,” said Lennon, who previously served as the deputy director of elections and coordinator of the Election Integrity Unit in the Secretary of State’s Office under Democrat Jason Kander.
Lennon said without knowing what criteria the Secretary of State’s Office used and steps it took, it’s hard to determine what could have been done differently to avoid issues moving forward.
Ultimately, Lennon said it’s important for counties to continue to have a role in the process, especially due to voter registration records belonging to the counties.
“It’s important that we maintain that local control. And using voter registration records in order to check them against petitions is something that is important,” Lennon said. “Even if the law says that it is an option for the Secretary of State’s Office to utilize us, I think it’s an important one that creates a check on the system.”
The Independent’s Jason Hancock contributed to this story.
Photo courtesy of Chris Wallis // Side Pocket Images.