WUSTL

Missouri legislators quick to overturn voter-approved initiatives because voters have allowed it, constitutional law expert says

By Jessica Martin

Last November, Missouri voters approved Proposition B, which amended state law to more strictly regulate large-scale dog breeders and to create a misdemeanor crime of “puppy mill cruelty.”

Magarian

Now, just four months later, Prop B is set to be repealed if the Missouri House of Representatives and Gov. Jay Nixon follow the state senate’s lead. A voter-approved cost-of-living adjustment for minimum-wage workers also is up for repeal.

The legislators’ moves have left voters wondering how this can happen.

It depends on the state you are in, says Gregory Magarian, JD, professor of law at Washington University in St. Louis and an expert on constitutional law.

“Voter initiative procedures are created by state law, usually state constitutional law,” Magarian says. “Some initiative procedures allow the voters to create constitutional amendments, while others effectively allow the voters to create statutes.

“Some states have voter initiative procedures that limit legislatures’ power to alter the initiatives, permanently or for some period of time. In addition, states have different requirements for how to get an initiative on the ballot,” he says.

In Missouri, the state constitution allows voters to create statutory law. The state constitution imposes no constraints on the legislature for changing or reversing measures passed by initiative.

Missouri appears to be a national leader in overturning voter initiatives, Magarian says.

“In 2009, the legislature undid a school funding measure that passed as part of a casino tax initiative,” he says. “In 2003, the legislature undid an anti-concealed carry initiative, over the governor’s veto.

“Interestingly, the Arizona legislature in 1997 overturned a medical marijuana initiative — which led voters the following year to pass an initiative that barred the legislature from overturning future initiatives.”

Two measures that have been proposed in the Missouri legislature would move the system in opposite directions.

“One proposal would strengthen the force of initiatives by requiring a two-thirds majority vote of both houses to alter a measure adopted by initiative for the first two years after the initiative passed, and a four-sevenths majority during the following two years,” Magarian says.

“The other proposal would make initiatives harder to get on the ballot by requiring petition signatures from every state legislative district,” he says. “The present procedure requires signatures from two-thirds of the districts.”

Magarian says that state initiatives only become a matter of federal law if their substantive content violates the U.S. Constitution.

“The most important example is Colorado’s infamous initiative that stripped gays and lesbians of legal recourse to seek protection from discrimination, which the Supreme Court overturned in Romer v. Evans,” he says.

MEDIA CONTACTS
Jessica Martin
Executive Director, Strategic Communications
(314) 935-5251
jessica_martin@wustl.edu
EXPERTS @ WUSTL
Gregory Magarian
Professor of Law
(314) 935-3394
gpmagarian@wulaw.wustl.edu