As a result, Berry argues, Ashcroft should have rejected the petitions instead of certifying them for backers to begin gathering signatures.
“If you want to change the constitution, you better know what the rules are and follow them,” Berry said in an interview with The Independent.
Berry, who is seeking the GOP nomination for lieutenant governor, has run unsuccessfully in five campaigns since 2012. He has also filed numerous lawsuits that have either been dismissed or withdrawn, including one intended to force state lawmakers to pass a congressional redistricting map and another alleging election irregularities cost him victory in his 22 percentage-point loss in the 2020 St. Louis County Executive race.
Though he isn’t an attorney, Berry represented himself in those cases and is doing so in his latest lawsuit. The lawsuit alleges Ashcroft improperly certified ballot measures that failed to meet legal requirements in their initial filings.
“It’s complex from the amount of parties, but it’s a very simple legal question,” Berry said.
The first step toward enacting an initiative is to file it with the Secretary of State’s office. The cover form requires the sponsoring person to provide contact information and state whether any organization or committee is helping pay campaign costs. If the supporting group qualifies under state law as a campaign committee, a copy of the form registering the committee with the Missouri Ethics Commission must be attached.
For six of the initiatives, filed Aug. 30 by Jamie Corley of St. Louis and stating that the Missouri Women and Family Research Fund is helping pay the costs, the ethics form was not submitted, Berry’s lawsuit contends. For the remainder, Berry’s lawsuit argues they have the wrong type of committee.
In response to questions from The Independent, Ashcroft’s office stated that it has never rejected a petition over the documentation of ethics filings.
“We do not have authority to enforce the ethics laws,” the statement read.
The Missouri Women and Family Research Fund did not formally organize a PAC until Nov. 15. Its filing states it is a continuing committee, meaning it is not necessarily focused on a single ballot measure campaign or candidate.
However, the group has decided on a particular ballot measure, Corley announced last week. The ethics commission filing has not been updated.
Berry contends it should have been organized as a campaign committee, which state law says has the “sole purpose is to support or oppose the qualification and passage of one or more particular ballot measures…”
The other initiative filings Berry is challenging are:
Three versions of an initiative filed by former Judge Jimmie Edwards and a group called SensibleMO to allow local enact ordinances governing possession and carrying of firearms.38 initiatives filed by Richard von Glahn, backed by the Jobs with Justice Ballot Fund, to increase the minimum wage and require employers to offer paid sick leave.24 initiatives filed by Frederic Steinbach with support from a committee called Missouri Agrees, that would establish ballot access and voting rules to prevent enactment of ranked-choice voting.
For those initiatives, Berry’s lawsuit argues their committees are improperly organized as continuing committees when they should be registered as campaign committees.
He’s not trying to sabotage the initiative campaigns, Berry said. Instead, he said he wants Ashcroft to enforce the law as it is written.
“If the judge rules in my favor in a timely fashion, they’ll have 60 days to get a clean initiative petition that’s legal before the Secretary of State and should have an opportunity to get signatures to get on the ballot,” Berry said.
Berry’s lawsuit is the second that puts the Corley abortion initiatives before a judge. Corley is suing Ashcroft and Auditor Scott Fitzpatrick over the ballot language and fiscal note summary.
Corley’s initiative is being promoted as a middle ground between the current complete ban on abortion in Missouri and the expansive abortion-rights proposed in a set of initiatives that just completed the legal process.
Chuck Hatfield, the attorney representing Corley, said Berry is misunderstanding the law.
A committee of any kind doesn’t have to be formed until minimum thresholds are met – spending more than $500 or accepting $250 or more from a single donor. And a continuing committee doesn’t have to reorganize as a campaign committee until it has chosen “particular” ballot measures to support.
The initial filing for the Corley initiatives didn’t include the committee paperwork, Hatfield said, because supporters hadn’t met the requirements to be registered.
“You can only submit paperwork that you have,” Hatfield said.
Whether or not the committee has been formed is not a question Ashcroft must consider, Hatfield said.
“It’s not up to him to determine whether you should have had a committee,” he said. “ That would be exceeding his authority.”
The question of whether the organization paperwork for a continuing committee is sufficient, Hatfield said, is a question of whether the organization has committed to a single ballot measure or if it is in the exploratory phase of a campaign.
“If you haven’t decided whether to do that or not, you’re not a committee,” Hatfield said.
Ashcroft’s office noted to The Independent that while the law governing initiatives directs petitioners to include ethics filings, it also makes that conditional on meeting the definition of committee.
“Because the (Secretary of State) form is self-reporting the (Secretary of State) does not enforce the ethics laws…,” the statement read. “The (Secretary of State) is only required to collect a copy of their filing if they have an organization statement if required by (state law),” the statement read.
The court case against the 71 initiatives was filed Nov. 15. It replaced an earlier filing from August that focused on the initiatives filed by Edward.
Edwards could not be reached for comment on the lawsuit.
The original case challenged the ballot language and fiscal note summary as well as raising questions about whether the ethics registration and submission met the legal requirements. Asked why he didn’t stick with those initiatives as a test case, Berry said he wants to stop the circulation of all petitions he considers illegal.
“Just taking on one doesn’t resolve the issue that people are continuing to file these initial petitions in an unlawful manner,” Berry said.
Berry’s own campaign filings raise questions about whether he is following the letter of the law. He has an active candidate committee for his campaign for lieutenant governor but has not terminated his committee for the 2020 election.
Under state law, a candidate can have only one committee.
The 2020 committee is simply caught up in an audit, Berry said, and will be terminated when it is completed.
The Jobs with Justice group has decided on a particular proposal, to increase the minimum wage to $15 an hour by 2026 and require employers to provide paid sick leave.
The current minimum wage is $12 an hour. It will be adjusted for inflation to $12.30 an hour on Jan. 1.
As of Friday, the Jobs with Justice Ballot Fund had not reorganized as a campaign committee.
“We have had very enthusiastic responses from voters,” spokeswoman Crystal Brigman Mahaney said. “We are confident that we will turn in more than enough signatures to qualify in the required timeline and that this lawsuit will be properly dismissed.”
