Timing of gay marriage vote goes before Supreme Court

JEFFERSON CITY, Mo. -- Missouri's top elected officials are accusing each other of flouting the law as they ask the state Supreme Court to decide the timing of an election for a proposed constitutional amendment prohibiting gay marriage.

The state's highest court is to hear arguments today on whether the gay marriage vote should occur in August, as ordered by Democratic Gov. Bob Holden, or whether it must wait until as late as November, as Republican Secretary of State Matt Blunt prefers.

The court's decision may carry political consequences.

A November general election vote is believed by many political observers to hurt Democrats, because the conservative backers of the gay marriage ban would be likely to vote for Republicans, including President Bush and Blunt, who is running against Holden. A vote during the August party primaries would diffuse any political advantage, because Democrats and Republicans are not pitted against each other.

The state constitution automatically places proposed amendments on the November ballot, unless the governor calls a special election earlier. That's precisely what Holden attempted to do.

But Blunt says he can't follow Holden's wishes, because Republican legislative leaders did not send to him the officially passed version of the amendment until after May 25 -- the legal deadline to provide 10 weeks notice to local election authorities of items to appear on the August ballot.

In filings Monday with the Supreme Court, Democratic Attorney General Jay Nixon accused Blunt of evasion and excuse-making while trying "to strip the governor of his constitutional power" to set an Aug. 3 election.

Nixon contends Blunt could have started the ballot paperwork before the May 25 deadline, because he already had received several copies of the amendment passed by the Legislature.

The attorney general also contends the 10-week deadline "is not sacrosanct" and is superseded by the governor's constitutional authority to set special elections. Nixon cites about 20 examples of state laws referencing ballot changes that can be made after the 10-week notification deadline.

An attorney for Blunt argues that the "separation of powers" doctrine requires he wait until the legislative branch has sent him the official legislation before beginning his executive branch duties of setting the election.

Rather than granting the governor "unfettered ability to call a special election," Blunt contends the constitutional authority is tempered by state election laws.

"No one would argue that the governor could call a special election today to take place tomorrow," Blunt's legal counsel, Terry Jarrett, said in court filings Monday. "There are restriction on his authority."

Blunt also raises a procedural point, claiming the Supreme Court would have to declare the 10-week notification law unconstitutional if it were to order him to set an August election. He says the format of Nixon's lawsuit does not allow for a constitutional declaration.

Until state law was revised in 1997, Missouri required just eight weeks notice to place items on the ballot. Blunt's court filing includes affidavits from two county clerks stating the shorter period made it difficult to print and mail ballots to overseas voters in time for them to be sent back by election day.

A Cole County circuit judge and a Kansas City appeals court panel both have ruled for Blunt. The Supreme Court, when accepting the case, ordered Blunt to notify local election officials of the possibility of an additional August ballot item, should the court side with Nixon's and Holden's position.

Missouri already has a law against gay marriage. But supporters believe putting the ban in the constitution would make it less susceptible to legal challenges.