“Those are legal voters. They are registered voters. Their [signatures] should count and case law supports that.”
By Tessa Weinberg, Missouri Independent
The unprecedented steps Missouri Secretary of State Jay Ashcroft (R) took to verify signatures to place a marijuana legalization initiative petition on the ballot were outside the scope of his authority, attorneys for an anti-drug activist argued Thursday.
Cole County Judge Cotton Walker faces a September 13 deadline to decide whether an initiative petition to legalize marijuana for those 21 and older should appear on the November ballot.
On Thursday, Walker heard arguments in a lawsuit filed last month by Joy Sweeney, deputy director of training, technical assistance and community outreach for Community Anti-Drug Coalitions of America, a group of community coalitions that aim to prevent substance use and abuse.
During testimony Thursday, Ashcroft’s director of elections said the process used to certify signatures for the marijuana proposal was different than any previous initiative petition, and that local election authorities were not notified that the secretary of state was overruling their work.
Sweeney’s attorneys alleged that if the secretary of state’s office hadn’t taken these unprecedented steps the petition would not have met the minimum number of signatures needed to make the ballot.
They also alleged the petition is unconstitutional because it changes multiple sections of Missouri’s constitution.
“Whenever the local election authorities are the ones doing the verification, the secretary retains the authority to discount and to remove signatures that he thinks are forged or fraudulent,” said Josh Christensen, an attorney representing Sweeney, “but lacks the authority to reinstate and verify signatures that those local election authorities did not find to be valid.”
Attorneys for Ashcroft and Legal Missouri, the campaign backing the initiative petition to legalize marijuana, countered that the secretary of state’s office was well within its right to ensure an accurate count of signatures.
“Their view is that the secretary is compelled to knowingly certify inaccurate registrations, and to snub legal, registered Missourians who decided to make their voice heard on an initiative petition signature page,” Jason Lewis, the attorney general office’s chief counsel for governmental affairs who is defending the secretary of state’s office, said of the opposing side’s arguments. “Those are legal voters. They are registered voters. Their [signatures] should count and case law supports that.”
What’s more, attorneys for Ashcroft and Legal Missouri argued no evidence had been provided showing a single invalid signature from a registered voter had been improperly counted.
Sweeney’s attorneys said that’s because they were unable to conduct a line-by-line signature comparison since unredacted copies of voter registration records were not provided by the secretary of state until 6:43 PM the night before Thursday’s hearing.
In an interview Wednesday with The Independent, Ashcroft said the initiative petition process is a constitutional right of the people, and that his office wanted to ensure it got the process right.
“The proof is in the pudding. And by that I mean, anybody who wants can look at those signature sheets,” Ashcroft said. “And I think, in the end analysis, I’m certain that what our office said when they said that they met the requirements and they had sufficient signatures, was correct.”
Walker questioned during Thursday’s hearing whether there was an issue with Ashcroft’s office modifying how it certifies signatures as long as it’s within the bounds of state law.
“There’s nothing in statute or really the Constitution that says having a novel approach towards trying something new is inappropriate or unconstitutional,” Walker said.
While the secretary of state’s office has the flexibility to assist local election officials with resources and training, Sweeney’s attorneys argued Ashcroft’s role isn’t to change their results.
“This has never happened,” Christensen said of the process Ashcroft’s office employed this year.
Much of the three-hour hearing was centered on questioning Chrissy Peters, who oversaw the certification process and has worked in the secretary of state’s office since 2008, where she has served as the director of elections since 2017.
Peters testified Thursday the process the secretary of state’s office utilized was novel, since it was the first time the office had been presented with errors by an initiative petition campaign in local election officials’ signature counts.
“This would be the first time that we would have reviewed wrong signatures,” Peters said, “and/or a situation where it was brought to our attention that there were errors that the counties had made.”
The Independent previously reported that the Legal Missouri campaign employed a unique tactic and circumvented the court process outlined in state law by turning to Ashcroft’s office for assistance when it felt signatures had been erroneously invalidated that would leave the petition short of the minimum necessary to make the ballot.
In an August 1 letter, Marc Ellinger, an attorney for the Legal Missouri campaign, identified over 4,800 signatures across Congressional Districts 6 and 7 that the campaign believed had been denied in error.
Ellinger urged Ashcroft’s office to conduct an independent review, which Ashcroft’s office did.
Peters testified that the secretary of state’s office initially only focused on reviewing signatures in Congressional Districts 6 and 7 because, “all the other congressional districts were well below the threshold, and or they were well above threshold, and in fact, it was Marc Ellinger who presented that these are the congressional districts in which we’re we’re finding errors.”
Later in Thursday’s hearing, Taylor White, an attorney for Sweeney asked Peters: “Did you look at signatures that had been marked valid to see if in fact, they should have been marked invalid?”
Peters said they did not, as “no one would have brought that to our attention.”
In Ellinger’s August 1 letter, he referenced discussing the signature verification issues with Ashcroft’s office during a July 25 phone call.
Peters testified that the Legal Missouri campaign first reached out to Ashcroft’s office even earlier. She was made aware of a July 21 call Jesus Osete, the Secretary of State’s general counsel, had with Ellinger. In that call, Ellinger raised the possibility of multiple errors in Clay County, where people had been allegedly marked as not being registered voters.
Peters testified she requested a sampling of the alleged errors when she learned of the call on July 22, and that day received 17 pages of signatures. Peters said she conducted an analysis by comparing the signatures on the petition with the one listed in the voter registration database for each voter.
“And most of those individuals were in fact registered voters,” Peters said.
Peters said it was during the July 25 phone call with Ellinger where it was requested he provide additional information he had on any errors that Legal Missouri had identified.
It was a week later on August 1, that the Legal Missouri campaign delivered its letter outlining the errors and three boxes of 4,690 pages of signatures it believed had been invalidated in error across Congressional Districts 6 and 7.
From there, Peters said the secretary of state’s office immediately initiated a review of the signatures, which was conducted by seven staff members and three non-elections staffers.
This year local election officials were able to use a new electronic system developed in-house by Ashcroft’s office, which was first used by his office in 2020 when it certified an initiative petition to expand Medicaid coverage through random sampling.
The system allows signatures from the initiative petition page to be reviewed electronically side-by-side with the signatures and information in the Missouri Centralized Voter Registration System. The electronic portal can pull up to three of a voters’ most recent signatures from which the signature on the petition page could be compared to.
However, when Peters and her staff reviewed the signatures submitted by Legal Missouri, they compared the physical pages the campaign provided with printed out pages of voters’ records from the Missouri Centralized Voter Registration System, which only displayed the voter’s most recent signature.
“And if it matched it went into a registered pile. If it did not match it went into a not registered pile,” Peters said. “And the not registered pile went through a second review where we went back into the voter registration system to look at other signatures on file to see if there was another one that would have had similarities or would have been a better way to analyze or to review the signature.”
During questioning, White pressed Peters on a Microsoft Word document created July 29—three days after the deadline for local election authorities to submit verification totals—that was provided to secretary of state office staff with instructions on how to verify signatures.
A different set of instructions had been previously provided to local election officials in May.
Peters said the different instructions given to the secretary of state’s Office staff were prepared in anticipation of reviewing the signatures the Legal Missouri campaign had promised to provide.
Ashcroft said Wednesday that digitizing the process and allowing for signatures to be reviewed electronically rather than shipping paper petition pages made the difference.
“My takeaway from this,” Ashcroft said, “is we have changed the process by digitizing and by using technology to, I think, allow us to do a far more accurate and do a far better job than was ever able to be done before.”