Medicaid ballot measure faces challenges as unconstitutional

A ballot measure proposing to expand Missouri’s Medicaid system has drawn two court challenges as it heads to the Aug. 4 ballot.

Ryan Johnson, a senior advisor to the group United for Missouri, filed suit on May 22 in Cole County Circuit Court,  arguing that the citizen-initiated measure should be stricken from the ballot because it violates a state constitutional provision prohibiting initiative petitions from being used to appropriate money without providing a funding mechanism.

“This initiative, as certified by Secretary of State [Jay] Ashcroft, is unconstitutional on its face because it seeks to create what amounts to an unfunded liability in the Constitution,” Johnson said in a statement.

Jeremy Cady, the director of the Missouri chapter of Americans for Prosperity, filed a similar suit on May 26.

“This mandate will divert critical funds from our children’s education or force the state to increase taxes,” Cady said in a statement. “At a time when our state is already in dire economic straits, we should not tie the hands of the legislature with this unconstitutional ballot initiative.”

The proposal would expand Medicaid eligibility to adults earning up to 138 percent of the federal poverty level. Under the Affordable Care Act, the state could recover 90 percent of the cost of that expansion from the federal government.

Citing estimates from the Department of Social Services, the challengers said the state would have to cover 10 percent of the $2 billion per year expansion.

Healthcare for Missouri, which backs the Medicaid expansion campaign, called the suits “frivolous” and said it will seek to intervene in the litigation.

Under Article III, section 51 of the Missouri Constitution, “The initiative shall not be used for the appropriation of money other than of new revenues created and provided for thereby, or for any other purpose prohibited by this constitution.”

Although Missouri courts generally decline to address the effects of proposed amendments prior to their passage, the Missouri Supreme Court has allowed challenges to proposals that directly violate the requirements that the constitution places on the initiative process.

The Supreme Court’s most recent look at section 51 was in 2014, when it said the constitutional provision didn’t apply to a proposal in Kansas City that would have raised sales taxes without stating a specific purpose for the money, even though it was purported to be for a light-rail system.

In the context of a proposed constitutional amendment, the court’s most recent case is 2006’s Committee for a Healthy Future v. Carnahan, which involved a proposed tobacco tax. The challengers argued that the amendment’s restrictions on the use of those funds was an appropriation. But the Supreme Court said that argument rested on a “restricted reading of the initiative’s language,” and that the measure could be harmonized with other constitutional provisions. The measure was defeated at the 2006 ballot.

The cases are Johnson v. Ashcroft, 20AC-CC00210, and Cady v. Ashcroft, 20AC-CC00209.