Tobacco tax ballot measure goes before Supreme Court

JEFFERSON CITY, Mo. -- Opponents of a tobacco tax ballot measure tried to persuade the Supreme Court to knock it off the Nov. 7 ballot by arguing Wednesday that thousands of petition signatures should be invalidated.

Opponents also argued the proposed constitutional amendment would violate the Missouri Constitution by requiring the expenditure of existing state revenue to pay for its new health-care programs.

Both arguments had been rejected last month by a Cole County circuit judge, and supporters of the tobacco tax countered Wednesday that those decisions should stand.

Proposed Amendment 3 would raise Missouri's current 17-cents-a-pack cigarette tax to 97 cents beginning Jan. 1 while tripling the taxes on other tobacco products. Missouri's cigarette tax now is the second lowest in the nation, behind South Carolina. The new tax revenue, projected at minimum $351 million annually, would go toward health-care programs and anti-tobacco efforts.

Secretary of State Robin Carnahan initially blocked the measure from the ballot after determining the sponsoring Committee for a Healthy Future had fallen 274 valid signatures short of the amount required in the Kansas City area's 5th Congressional District.

But Judge Thomas Brown overturned that decision last month and ordered the measure onto the ballot. He determined local election officials should have verified an additional 1,004 signatures as valid -- giving the measure a cushion of 730 names above the necessary minimum for that congressional district.

An attorney for the opposition group Missourians Against Tax Abuse sought to whittle that number back below the required threshold. Attorney Marc Ellinger argued before the Supreme Court that 3,221 signatures should not have counted because the signers listed a different address on the petition than was shown in the voter registration files.

"When you sign the petition, you have to be a legal voter -- you have to sign it at the same address where your registration address is," Ellinger said. For the signatures to count, he said, petition signers needed to have changed the voter registration address by the time the petitions were reviewed by election officials.

But attorney Robert Hess, representing the Committee for a Healthy Future, said that was not true. Federal law allow voters to change their addresses even on Election Day, Hess said, as long as the new address is in the same local election jurisdiction. In Missouri, that generally means moves within the same county are fine.

Even though petition signers may have moved since last voting, "those people are legal voters under existing Missouri law," Hess told the judges.

Supreme Court Judge Laura Denvir Stith followed similar reasoning while questioning the opponent's attorney.

"Why would the difference in addresses matter as long as the law allows you to correct your address as late as Election Day?" Stith asked.

Judge William Ray Price Jr. also questioned why the exact street address of registered voters would matter, since initiative petition signatures are counted by congressional district.

Arguments also focused on the opponents' claim that the tobacco tax ballot measure could violate constitutional prohibitions on appropriating existing state revenues through initiatives.

Because the amendment does not specifically state the new taxes would go to administrative costs for its health care program, Ellinger claimed outside of court that it could result in "tens of millions of dollars" of administrative costs that would have to be covered through existing revenues. Opponents also claim that a provision funding health care for people earning up to twice the federal poverty level could be construed as a mandated expenditure -- regardless of whether the tobacco tax revenues actually cover the program's full cost.

The trial judge rejected those arguments. Ballot measure supporters argued Wednesday that administrative expenses are covered under the amendment's language requiring the new tax revenue to go toward the purposes of carrying out the health care programs.

Chuck Hatfield, another attorney for the measure's supporters, claimed outside the courtroom that the opponents' constitutional claims were "just a smoke screen" against supporters' efforts to improve health care.

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Case is Committee for a Healthy Future et al. v. Robin Carnahan et al., SC88018.

On the Net:

Supreme Court: http://www.courts.mo.gov/sup/index.nsf