                 IN THE MISSOURI COURT OF APPEALS
                         WESTERN DISTRICT
NORMAN R. SEAY, et al.,                    )
                               Appellants, )
                                           )
v.                                         )       WD77873
                                           )
TIM JONES, et al.,                         )       FILED: September 15, 2014
                              Respondents. )

                       Appeal from the Circuit Court of Cole County
                          The Honorable Jon E. Beetem, Judge

           Before: Alok Ahuja, C.J., and Victor C. Howard and Gary D. Witt, JJ.

       Norman Seay and Nimrod Chapel (collectively “Seay”) appeal a judgment entered by the

Circuit Court of Cole County. The judgment rejected Seay‟s challenge to the official summary

statement which is part of the official ballot title for House Joint Resolution No. 90 (“HJR 90”).

HJR 90 will appear on the November 4, 2014 general election ballot. HJR 90 asks voters to

approve an amendment to the Missouri Constitution to authorize voting in advance of election

day in general elections, if funds are appropriated and disbursed by the State to local election

authorities to pay the costs of this early voting. The circuit court found that the summary

statement Seay challenges was sufficient and fair.

       Because we conclude that the summary statement fails to advise voters that early voting

will occur only if funds are appropriated and disbursed by the State, we reverse, and certify to

the Secretary of State an amended summary statement which more accurately describes the

effect of the proposed constitutional amendment.
                                      Factual Background

       The General Assembly truly agreed to and finally passed House Joint Resolution No. 90

during its 2014 regular session.1 The full text of HJR 90 appears in an Appendix to this opinion.

       HJR 90 is a statewide ballot measure which, if passed, would amend Article VIII of the

Missouri Constitution by adding a new § 11. Section 11.1 states that “[q]ualified voters of the

state shall be entitled to vote in person or by mail in advance of the day of the general election,

but only under the following subdivisions.” HJR 90 provides that advance ballots may be cast in

person or by mail “only during the six business days . . . immediately prior to and including the

last Wednesday prior to the election day,” and only “at the local election authority during its

regular business hours.” § 11.1(3). To be eligible for early voting, voters must be registered to

vote four weeks before election day. § 11.1(1). Voters need not offer any explanation for their

desire to cast an early ballot. § 11.1(2). Voters may request mail-in ballots only by a written,

signed and dated request, which will be valid for only one general election. § 11.4. HJR 90 also

specifies that election authorities must appoint election judges to oversee the advance voting, and

may not disclose prior to the election day the identity of a qualified voter who has cast an

advance ballot, without the voter‟s written authorization. §§ 11.1(4), 11.2, 11.3.

       Section 11.5 of HJR 90 makes the availability of advance voting in any particular

election contingent on the State‟s appropriation and disbursement of funds to cover the costs of

such voting. It provides:

               No local election authority or other public office shall conduct any activity
       or incur any expense for the purpose of allowing voting in person or by mail in
       advance of the general election day unless a state appropriation is made and



       1
              Formally, HJR 90 is the “Senate Substitute for Senate Committee Substitute for House
Committee Substitute for House Joint Resolution No. 90, 97th General Assembly, 2d Regular Session,”
or “SS SCS HCS HJR 90” for short. For ease of reference, we refer to the legislation as “HJR 90.”


                                                  2
          disbursed to pay the local election authority or other public office for the
          increased cost or expense of the activity.

          The preamble to HJR 90 specifies that the proposed constitutional amendment will be

submitted to voters at the November 4, 2014 general election, or at a special election called by

the Governor for that purpose. Because no special election was called, HJR 90 will appear on

the November 2014 general election ballot.

          As authorized by § 116.155.2,2 the General Assembly drafted an official summary

statement to appear on the ballot as part of the official ballot title for the proposal. The summary

statement drafted by the General Assembly states:

                  Shall the Missouri Constitution be amended to permit voting in person or
          by mail for a period of six business days prior to and including the Wednesday
          before the election day in all general elections?

          The State Auditor prepared a fiscal note and fiscal note summary for HJR 90. The fiscal

note summary, which together with the summary statement will constitute the official ballot title,

states:

                  State governmental entities estimated startup costs of about $2 million and
          costs to reimburse local election authorities of at least $100,000 per election.
          Local election authorities estimated higher reimbursable costs per election. Those
          costs will depend on the compensation, staffing, and, [sic] planning decisions of
          election authorities with the total costs being unknown.

          On June 30, 2014, the Secretary of State certified the official ballot title for HJR 90,

which consisted of the summary statement prepared by the General Assembly, and the fiscal note

summary prepared by the State Auditor, without change.

          On July 2, 2014, Seay filed a petition challenging the sufficiency and fairness of the

official summary statement for HJR 90. An amended petition was filed on July 16, 2014, adding

          2
               Statutory citations refer to the 2000 edition of the Revised Statutes of Missouri, updated
through the 2013 Cumulative Supplement.




                                                    3
Chapel as an additional plaintiff. Pursuant to the requirements of § 116.190.2, Seay named as

defendants the President Pro Tem of the Senate, Tom Dempsey; the Speaker of the House, Tim

Jones; the legislative sponsor of HJR 90,Tony Dugger; and the Secretary of State, Jason Kander.

The amended petition specifies that each defendant is sued solely in his official capacity.

        The Attorney General‟s Office entered its appearance on behalf of all defendants.

Additionally, separate counsel entered an appearance on behalf of Dempsey, Jones, and Dugger

(collectively “the Legislators”).

        On August 8, 2014, Seay filed a motion for summary judgment, as well as a motion to

strike the pleadings filed by the Legislators‟ separate counsel. On the same day, the Attorney

General‟s Office and the Legislators‟ counsel filed motions for judgment on the pleadings. The

circuit court heard arguments of counsel on August 19, 2014. On August 25, 2014, the circuit

court entered its judgment granting the defendants‟ motions for judgment on the pleadings, and

finding the summary statement to be fair and sufficient. The court denied as moot both Seay‟s

motion for summary judgment, and his motion to strike the Legislators‟ separate pleadings.

        Seay filed his notice of appeal in the circuit court on August 25, 2014, the same day that

judgment was entered. We granted Seay‟s motion to expedite the appeal on August 27.

Following the filing of the record on appeal and the parties‟ briefs, we heard oral argument in the

case on September 12, 2014.3

                                                Discussion

        Seay‟s briefing challenges both the circuit court‟s grant of the defendants‟ motions for

judgment on the pleadings, and the court‟s denial of his motion for summary judgment.




        3
                  We express our appreciation to all counsel for the quality of their briefing and argument,
particularly in light of the compressed schedule in which this appeal was presented.


                                                      4
       An order denying a motion for summary judgment is not a final judgment and,
       therefore, is not reviewable on appeal unless the merits of the denied motion for
       summary judgment are intertwined with the propriety of an appealable order
       granting summary judgment to another party; under those circumstances, the
       denial of a motion for summary judgment may be reviewed on appeal.

Fed. Nat’l Mortg. Ass’n v. Conover, 428 S.W.3d 661, 666 n.9 (Mo. App. W.D. 2014) (citing

Reeves v. Allstate Ins. Co., 327 S.W.3d 592, 598 (Mo. App. S.D.2010)); see also, e.g., Farmers

Ins. Co. v. Wilson, 424 S.W.3d 487, 491 n.4 (Mo. App. S.D. 2014) (citing and quoting Grissom

v. First Nat'l Ins. Agency, 371 S.W.3d 869, 879 (Mo. App. S.D. 2012)).

       In this case, Seay‟s motion for summary judgment was the converse of the defendants‟

motions for judgment on the pleadings: while the defendants‟ motions argued that the summary

statement was sufficient and fair based on the facts alleged in Seay‟s amended petition, his

summary judgment motion alleged that the summary statement was insufficient because of its

failure to mention certain central features of HJR 90. Each side‟s motions could virtually be read

as briefs in opposition to the motion or motions filed by the other side. In these circumstances,

the denial of Seay‟s motion for summary judgment is inextricably intertwined with the grant of

the defendants‟ motions for judgment on the pleadings, and it is therefore reviewable here.

       A court‟s grant of judgment on the pleadings is reviewed de novo. Coburn v. Mayer, 368

S.W.3d 320, 323 (Mo. App. W.D. 2012).

       In reviewing the grant of a motion for judgment on the pleadings, this Court must
       decide whether the moving party is entitled to judgment as a matter of law on the
       face of the pleadings. The well-pleaded facts of the non-moving party's pleading
       are treated as admitted for purposes of the motion. A grant of judgment on the
       pleadings will be affirmed only if the facts pleaded by the petitioner, together with
       the benefit of all reasonable inferences drawn therefrom, show that petitioner
       could not prevail under any legal theory.

Emerson Elec. Co. v. Marsh & McLennan Cos., 362 S.W.3d 7, 12 (Mo. banc 2012) (citations

and internal quotation marks omitted).




                                                 5
       Similarly, a trial court‟s ruling on a motion for summary judgment is reviewed de novo.

Brehm v. Bacon Twp., 426 S.W.3d 1, 3 (Mo. banc 2014).

       In reviewing the decision to grant summary judgment, this Court applies the same
       criteria as the trial court in determining whether summary judgment was proper.
       Summary judgment is only proper if the moving party establishes that there is no
       genuine issue as to the material facts and that the movant is entitled to judgment
       as a matter of law.

Goerlitz v. City of Maryville, 333 S.W.3d 450, 452 (Mo. banc 2011) (citing ITT Commercial Fin.

Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)).

       Here, there are a limited number of facts which are material to the disposition of this

appeal: the content of HJR 90; the wording of the summary statement and fiscal note summary

contained in the official ballot title certified by the Secretary of State; and the dates on which

various official actions or litigation events occurred. Those facts are undisputed; the contested

issues are all matters of law for our independent review. Brown v. Carnahan, 370 S.W.3d 637,

653 (Mo. banc 2012) (“De novo review of the trial court‟s legal conclusions about the propriety

of the secretary of state‟s summary statement . . . is the appropriate standard of review when

there is no underlying factual dispute that would require deference to the trial court‟s factual

findings.”).

                                                 I.

       Seay argues that the summary statement is insufficient or unfair, because it fails to state

(1) that advance voting will occur only if the State appropriates and disburses funds to cover the

costs of such voting; and (2) that early voting will occur only during local election authorities‟

regular business hours, rather than during the longer hours for which the polls are normally open

on election day.




                                                  6
                                                 A.

        Generally, the Secretary of State is responsible for drafting the official summary

statement for constitutional amendments proposed by the legislature. § 116.160.1. The General

Assembly may, however, choose to draft its own summary statement. § 116.155.1.

                The official summary statement approved by the general assembly shall,
        taken together with the approved fiscal note summary, be the official ballot title
        and such summary statement shall contain no more than fifty words, excluding
        articles. The title shall be a true and impartial statement of the purpose of the
        proposed measure in language neither intentionally argumentative nor likely to
        create prejudice either for or against the proposed measure.

§ 116.155.2. Under § 116.190.1, Missouri citizens are authorized to seek judicial review of the

official ballot title, including an official ballot title prepared by the General Assembly. In such

an action, the challenger must “state the reason or reasons why the summary statement portion of

the official ballot title is insufficient or unfair.” § 116.190.3.

        The standards we must apply in resolving Seay‟s challenge to the language of the

summary statement are well-developed in existing caselaw. “When a party challenges the

language of the summary statement, „[t]he burden is on the opponents of the language to show

that the language was insufficient and unfair.‟” Overfelt v. McCaskill, 81 S.W.3d 732, 738 (Mo.

App. W.D. 2002) (superseded by statute on other grounds) (quoting Hancock v. Sec’y of State,

885 S.W.2d 42, 49 (Mo. App. W.D. 1994)).4

        Insufficient means “inadequate; especially lacking adequate power, capacity, or
        competence.” The word “unfair” means to be “marked by injustice, partiality, or
        deception.” Thus, the words insufficient and unfair . . . mean to inadequately and
        with bias, prejudice, deception and/or favoritism state the [consequences of the
        proposed amendment].



        4
                   While Overfelt and Cures without Cloning state that a challenger must establish that a
summary statement is “insufficient and unfair,” under § 116.190.3, “the proper consideration is whether
the ballot title is „insufficient or unfair.‟” Mo. Mun. League v. Carnahan, 364 S.W.3d 548, 552 n.6 (Mo.
App. W.D. 2011) (emphasis altered; quoting § 116.190.3).


                                                      7
Cures without Cloning v. Pund, 259 S.W.3d 76, 81 (Mo. App. W.D. 2008) (quoting Hancock v.

Sec’y of State, 885 S.W.2d 42, 49 (Mo. App. W.D. 1994) (internal citations omitted)).

        The language used should fairly and impartially summarize the purpose of the
        measure so that voters will not be deceived or misled. The summary statement
        should accurately reflect the legal and probable effects of the proposed initiative.

Archey v. Carnahan, 373 S.W.3d 528, 532 (Mo. App. W.D. 2012) (citations and internal

quotation marks omitted). To be “sufficient” and “fair,” the summary statement must accurately

“describe[ ] the primary objective[s] of the proposed [amendment].” Id. at 533. “It is incumbent

upon the legislature to prepare a summary statement that endeavors to promote an informed

understanding of the probable effect of a proposed amendment.” Coburn v. Mayer, 368 S.W.3d

320, 324 (Mo. App. W.D. 2012).

        The question, of course, is not whether this is the best summary, but whether the
        summary gives the voter a sufficient idea of what the proposed amendment would
        accomplish, without language that is intentionally unfair or misleading. The idea
        is to advise the citizen what the proposal is about.

Billington v. Carnahan, 380 S.W.3d 586, 595 (Mo. App. W.D. 2012).

        As a reviewing court, we “„do not sit in judgment on the wisdom or folly of proposals.‟”

Cures without Cloning, 259 S.W.3d at 81 (quoting Missourians to Protect the Initiative Process

v. Blunt, 799 S.W.2d 824, 827 (Mo. banc 1990)). Instead, “we consider only those threshold

issues affecting the integrity of the election itself.” Id. (citing State ex rel. Trotter v. Cirtin, 941

S.W.2d 498, 500 (Mo. banc 1997)). Moreover, we are mindful that “whether the summary

statement prepared by the [General Assembly] is the best language for describing the [proposed

amendment] is not the test.” Bergman v. Mills, 988 S.W.2d 84, 92 (Mo. App. W.D. 1999). “If

charged with the task of preparing the summary statement for a ballot initiative, ten different

writers would produce ten different versions.” Asher v. Carnahan, 268 S.W.3d 427, 431 (Mo.

App. W.D. 2008). There is no uniquely correct language for a summary statement to which the



                                                    8
drafter must adhere; to the contrary, “there are many appropriate and adequate ways of writing

the summary ballot language.” Id. at 432.

                                               B.

       Seay argues, first, that the summary statement is insufficient or unfair because it fails to

notify voters that, if the proposed amendment passes, advance voting will be available only in

those elections for which the State has appropriated and disbursed funds to pay the increased

costs of the advance voting. Seay argues that the summary statement will mislead voters into

believing that early voting will be allowed “in all general elections,” even though such voting is

subject to a significant contingency. We agree.

       The summary statement for HJR 90 adopted by the General Assembly poses the

following question:

               Shall the Missouri Constitution be amended to permit voting in person or
       by mail for a period of six business days prior to and including the Wednesday
       before the election day in all general elections?

Reduced to its essence, the summary statement tells Missouri voters that, under the proposal,

“the Missouri Constitution [will] be amended to permit voting . . . before the election day in all

general elections.”

       Clearly, a voter reading the summary statement would expect that, if the proposal passes,

advance voting will be an available option for voters “in all general elections.” In the sense used

in the summary statement, the verb “permit” means “to consent to expressly or formally : grant

leave for or the privilege of : ALLOW, TOLERATE,” and “to give (a person) leave : AUTHORIZE.”

WEBSTER‟S THIRD NEW INTERNATIONAL DICTIONARY 1683 (1993). Given this definition, a voter

would reasonably understand the existing summary to mean that, if the amendment is approved,

voters will be allowed and authorized to vote in advance of election day in all general elections,

and will be given the privilege of doing so.


                                                    9
       Although the summary statement suggests that passage of the amendment would

authorize advance voting “in all general elections,” § 11.5 of HJR 90 provides that “[n]o local

election authority or other public office shall conduct any activity or incur any expense” to

facilitate early voting “unless a state appropriation is made and disbursed to pay the local

election authority or other public office for the increased cost or expense of the activity.” Thus,

any right to early voting granted to voters by HJR 90 is made subject to the General Assembly‟s

and Governor‟s authority over appropriations, and to the authority of the Governor to withhold

appropriated funds from disbursement.

       The funding contingency set forth in § 11.5 of HJR 90 is a significant qualification on

citizens‟ right to advance voting. As a general proposition, the General Assembly‟s

appropriations power gives it wide discretion to “allocat[e] resources among the various

functions of state government” “in accordance with its sense of values and priorities.” Weinstock

v. Holden, 995 S.W.2d 411, 418-19 (Mo. banc 1999); see also, e.g., State ex rel. Kansas City

Symphony v. State, 311 S.W.3d 272, 278 (Mo. App. W.D. 2010) (“The policy underlying the

constitutional appropriations requirement is that each legislature must have discretion to respond

to the financial needs of the times.”). Moreover, even after the legislature passes an

appropriations bill, Article IV, § 26 of the Missouri Constitution gives the Governor the power to

veto “items or portions of items of appropriation of money in any bill presented to him,” the so-

called “line-item veto.” HJR 90 does not obligate the General Assembly to appropriate funds for

advance voting, or prevent the Governor from nullifying any legislative appropriation by line-

item veto; their discretion over appropriations is unconstrained. Besides being contingent on the

exercise of these discretionary appropriations authorities, the advance voting contemplated by

HJR 90 would also be subject to the Governor‟s authority under Article IV, § 27 of the Missouri




                                                 10
Constitution to “reduce the expenditures of the state or any of its agencies below their

appropriations whenever the actual revenues are less than the revenue estimates upon which the

appropriations were based.” See generally, Schweich v. Nixon, 408 S.W.3d 769 (Mo. banc

2013); State ex rel. Sikeston R-VI Sch. Dist. v. Ashcroft, 828 S.W.2d 372, 375-76 (Mo. banc

1992).

         Thus, even after the passage of HJR 90, whether advance voting will occur will be

subject to the General Assembly‟s virtually unbounded discretion over appropriations, to the

Governor‟s line-item veto, and to the Governor‟s constitutional authority to withhold

appropriated funds when fiscal circumstances require. Yet these significant contingencies are

not referenced in any fashion in the summary statement.

         The existence of these contingencies significantly alters the nature of the right granted to

voters in HJR 90. In an analogous situation, Missouri courts have recognized that a purported

contract in which one party retains the unilateral ability to deny the other party any contractual

benefits is illusory, and unenforceable. If a contracting party can wholly avoid his contractual

obligations without consequence, “[i]n reality, he promised nothing; therefore his promise was

an „illusory promise.‟” Fenberg v. Goggin, 800 S.W.2d 132, 136 (Mo. App. E.D. 1990); see also

Baker v. Bristol Care, Inc., No. SC93451, 2014 WL 4086378, at *5 (Mo. banc Aug. 19, 2014)

(“A promise is illusory when one party retains the unilateral right to amend the agreement and

avoid its obligations.”); Midland Prop. Partners, LLC v. Watkins, 416 S.W.3d 805, 814 n.6 (Mo.

App. W.D. 2013) (“„The phrase “illusory promise” means words in promissory form that

promise nothing.‟” (citation omitted)). While the right to advance voting granted by HJR 90

may not be “illusory,” it is significantly colored by the fact that legislative or executive action (or

inaction) could wholly extinguish it. The fact is, there is no guarantee that if HJR 90 passes,




                                                  11
advance voting will ever occur in any general election; indeed, absent the State‟s appropriation

and disbursement of funds, HJR 90 prohibits advance voting. This is a central feature of HJR

90, and a fact of which voters are entitled to be informed.5

        The fact that the summary statement fails to refer to the funding contingency may be

significant from another perspective as well. Immediately following the summary statement, the

fiscal note summary (which Seay does not challenge) forecasts that the State will incur direct

start-up costs of more than $2 million to implement advance voting, and that the “costs to

reimburse local election authorities” are “unknown,” but may be substantial. It is significant for

voters to be aware, particularly given the State‟s fiscal circumstances over the past several years,

that if HJR 90 passes the State will not be required to incur the costs described in the fiscal note

summary; instead, the legislature and executive will have the ability to decline to fund advance

voting in particular general elections, based on their assessment of the State‟s finances. It may

also be significant to voters to know that HJR 90 will not impose an “unfunded mandate” on

local election authorities to conduct advance voting; if the State does not disburse funds

necessary to defray the increased costs, local election authorities will be under no obligation to

take any action with respect to early voting (and will, indeed, be prohibited from doing so).

        The Legislators6 emphasize that the summary statement alerts voters that the effect of the

proposed constitutional amendment is merely to “permit” advance voting, but not to require it.


        5
                 It may be that existing provisions of the Missouri Constitution would require the State to
pay for the increased costs incurred by local election authorities before advance voting could occur, even
if § 11.5 were not included in HJR 90. We need not decide that question. Even if existing law would
already prevent advance voting from being implemented unless the State paid for it, “at least in some
instances context demands a reference to what is currently present to understand the effect of the
proposed change.” Mo. Mun. League v. Carnahan, 364 S.W.3d 548, 553 (Mo. App. W.D. 2011); accord,
Brown, 370 S.W.3d at 660; Coburn v. Mayer, 368 S.W.3d 320, 324 (Mo. App. W.D. 2012).
       We also take no position as to whether the General Assembly has the authority under the existing
Missouri Constitution to enact laws making early voting generally available.


                                                    12
The Legislators suggest that the use of the word “permit” informs voters that the availability of

advance voting is not assured, and may depend on legislative or executive action. This argument

misconstrues the summary statement, however. The group that is “permitted” to engage in

advance voting under the summary statement is the Missouri electorate; it is voters who would

be “permitted” to vote, in person or by mail, prior to election day. It is hardly surprising that the

summary statement does not state that voters would be “required” to engage in advance voting;

instead, they will be “permitted” (or authorized, allowed, or given leave) to engage in advance

voting, at their option. The summary statement does not indicate that the legislature or the

Governor will be “permitted” to do anything. In particular, the summary in no way suggests that

HJR 90 “permits” the General Assembly or the Governor, through the exercise of their

appropriations and disbursement powers, to decide whether or not advance voting occurs at all.

The summary statement‟s use of the word “permit” does nothing to inform voters of the funding

contingency.

        The Legislators also emphasize that HJR 90 contains a number of provisions detailing the

manner in which advance voting will be implemented, including provisions specifying voter

registration requirements; requiring the engagement of necessary election judges; and addressing

how election authorities must respond to requests seeking information prior to election day

concerning which voters have engaged in advance voting. The Legislators suggest that the

funding contingency is merely one among many detailed implementation provisions contained in

HJR 90, and that it would have been impossible for the General Assembly to describe all of them

in the space of a 50-word summary. We are unpersuaded. The other provisions of HJR 90 to


        6
                 Because the Secretary of State construes his duties with respect to a summary statement
drafted by the General Assembly to be purely ministerial, he has taken no position as to the sufficiency or
fairness of the summary statement.


                                                    13
which the Legislators refer are either conditions which voters could satisfy through reasonable

effort (e.g., registering to vote sufficiently in advance of the general election), or specify the

manner in which local election authorities will implement the new advance-voting program.

None of the other provisions of HJR 90 would have the effect of wholly eliminating advance

voting in particular general elections. The fact that HJR 90 contains other provisions which the

summary statement does not describe does not diminish the importance of making some

reference to the funding contingency.

        We have little doubt that the current summary statement would lead voters to believe

that, should the amendment pass, early voting will be permitted in all future general elections in

Missouri. That is not the effect of the proposed amendment, however. Because it will mislead

voters as to the effects of the passage of HJR 90, the current summary statement is insufficient

and unfair for failing to make reference to the funding contingency. For these reasons, the circuit

court erred in granting the defendants‟ motions for judgment on the pleadings; to the contrary,

Seay established his right to judgment as a matter of law that the summary statement is

insufficient and unfair in this respect.

                                               C.

        Seay also argues that the summary statement is insufficient because it fails to refer to the

fact that advance voting will only be permitted during a local election authority‟s regular

business hours, not during the extended hours during which polling places are normally open.

        The summary statement‟s failure to refer to the fact that advanced voting would only take

place during business hours does not render the summary unfair or insufficient.

        Within the confines of the word limit, the ballot title is not required to set out the
        details of the proposal or resolve every peripheral question related thereto. While
        there may be aspects of the ballot initiative or consequences resulting therefrom
        that Appellants would have liked to have seen included in the summary statement,
        their exclusion does not render the summary statement either insufficient or


                                                    14
         unfair. The test is not whether increased specificity and accuracy would be
         preferable or provide the best summary; rather, the important test is whether the
         language fairly and impartially summarizes the purpose of the initiative.

Archey, 373 S.W.3d at 533-34 (citations and internal quotation marks omitted); see also, e.g.,

Brown, 370 S.W.3d at 656; Coburn, 368 S.W.3d at 326.

         The specific hours within which advance voting will occur is not so significant that its

omission from the summary statement renders the summary unfair or insufficient. As discussed

in § I.B above, the hours during which advance voting will occur is merely one among several

implementation features contained in HJR 90; it would be impossible for a 50-word summary to

capture them all. We also note that the summary statement does say that advance voting will

only be permitted on “business days”; while this does not specifically refer to the hours during

which advance voting will be available, the reference to “business days” gives voters some

indication that the times at which advance voting will occur may differ from the times that

polling places are normally open on election day. While it may have been preferable to include

some reference to the hours for advance voting, the summary statement‟s failure to do so is not

fatal.

                                               D.

         Because we have found the existing summary statement to be insufficient and unfair for

its failure to reference the funding contingency contained in § 11.5 of HJR 90, we must modify

the summary statement to describe this feature.

         Seay argues that, because § 116.155.2 states that “[t]he official summary statement

approved by the general assembly shall . . . be the official ballot title,” we have no authority to

alter the summary statement the legislature drafted. Instead, Seay argues that we can only issue

an order declaring that the existing summary statement is insufficient and unfair, and that it

cannot appear on the November 2014 general election ballot. We disagree. Section 116.190.1


                                                    15
specifically provides Missouri citizens the right to seek judicial review of official ballot titles

proposing constitutional amendments, including proposed amendments “submitted by the

general assembly.” Section 116.190.2 specifies that, where a petitioner “challeng[es] the official

summary statement . . . prepared pursuant to section 116.155” – i.e., by the General Assembly –

the Speaker of the House, the President Pro Tem of the Senate, and the legislative sponsor of the

proposal shall be named as defendants, in addition to the Secretary of State. Section 116.190.3

then provides that a challenger‟s petition must “state the reason or reasons why the summary

statement portion of the official ballot title is insufficient or unfair and shall request a different

summary statement portion of the ballot title.” Section 116.190.4 states that, in such an action,

“the court shall consider the petition, hear arguments, and in its decision certify the summary

statement portion of the official ballot title to the secretary of state.” The remedial provisions of

§ 116.190.4 make no distinction between summary statements prepared by the General

Assembly itself, versus those prepared by the Secretary of State.

        We have repeatedly construed the provisions of § 116.190, and in particular the

provisions of § 116.190.4, to authorize the courts to modify the language of a summary statement

found to be insufficient or unfair, and to certify the modified language to the Secretary of State.

As we explained in Cures without Cloning, 259 S.W.3d 76:

        Missouri courts have recognized that “Section 116.190 allows the trial court to
        correct any insufficient or unfair language of the ballot title and to certify the
        corrected official ballot title to the secretary of state.” These decisions are
        consistent with Section 116.190.3, which allows a petitioner in circuit court to
        request a “different summary statement” if the Secretary's ballot title is
        determined insufficient or unfair. Notably, there is no provision for a remand of
        the summary statement under these circumstances. Section 116.190.4 gives the
        court discretion to remand a fiscal note or fiscal note summary to the State
        Auditor to correct deficiencies, but the statute does not authorize remand of any
        portion of the ballot title to the Secretary for modification. The statute implicitly
        allows the court to certify a corrected summary statement, and then “the secretary




                                                   16
        of state shall certify the language which the court certifies to [her].” Section
        116.190.4.

Id. at 83 (emphasis and other citations omitted); see also, e.g., Mo. Mun. League v. Carnahan,

303 S.W.3d 573, 588-89 (Mo. App. W.D. 2010) (entering “a judgment modifying the ballot

summary as set forth herein” and remanding modified language to Secretary of State); Cole v.

Carnahan, 272 S.W.3d 392, 394-95 (Mo. App. W.D. 2008).

        Seay offers no persuasive reason why we cannot apply the reasoning of Cures without

Cloning here, even though that case involved a summary statement drafted by the Secretary of

State. Seay is correct that § 160.155.2 specifies that “[t]he official summary statement approved

by the general assembly shall . . . be the official ballot title.” However, § 160.190 then goes on

to make that legislatively-drafted summary statement subject to judicial review, under the same

procedures, and subject to the same remedy, applicable to a summary statement drafted by the

Secretary of State. Moreover, although Seay argues that § 160.155.2 distinguished summary

statements drafted by the General Assembly from summary statements drafted by the Secretary

of State, § 160.230 mandates that “the official ballot titles prepared under section 116.160” – i.e.,

by the Secretary of State – “shall” appear on the ballot. Like § 160.155.2, § 160.230 makes no

reference to the possibility that a court may modify the summary statement the Secretary of State

has prepared. Yet, it is well-established that the Secretary of State must include on the ballot a

summary statement modified by the court pursuant to § 116.190.4.

        Accordingly, we have the authority to modify the summary statement enacted as part of

HJR 90.7 In order to fairly summarize the funding contingency contained in § 11.5 of HJR 90,



        7
                We are aware that, in other cases, parties have argued that judicial modification of a
summary statement violates the separation of powers, either in all cases, or specifically in cases in which
the summary statement was drafted by the General Assembly. No such argument was made in this
appeal, and we do not address it.


                                                    17
the official summary statement should be modified as follows. The additional language we

require makes clear that the effect of HJR 90 is to prohibit advance voting if the funding

condition is not met. The modified language, indicating deleted and added text, reads:

                Shall the Missouri Constitution be amended to permit voting in person or
        by mail for a period of six business days prior to and including the Wednesday
        before the election day in all general elections, but only if the legislature and
        the governor appropriate and disburse funds to pay for the increased costs of
        such voting?

This modified summary language consists of 48 words, excluding articles.

                                                II.

        In a second Point, Seay contends that the trial court erred in refusing to strike the

pleadings filed by the Legislators‟ separate counsel. Seay argues that, because the Legislators‟

were sued only in their official capacities, the Attorney General has the exclusive authority to

represent them in this litigation.

        We need not decide this issue. “[I]t is not this Court‟s prerogative to offer advisory

opinions on hypothetical issues that are not necessary to the resolution of the case before it.”

State v. Self, 155 S.W.3d 756, 761 (Mo. banc. 2005). In addition, under Rule 84.13(b), “[n]o

appellate court shall reverse any judgment unless it finds that error was committed by the trial

court against the appellant materially affecting the merits of the action.”

        Seay has failed to identify any way in which he was materially prejudiced by the

participation of the Legislators‟ separate counsel in this litigation. The Legislators‟ counsel did

not seek any additional or different relief than that requested by the Attorney General, and

merely argued the legal issues raised by the parties, which the trial court and this Court would

have been required to decide even without the Legislators‟ separate briefing. Moreover, we

expect that the Legislators would have been permitted to participate through separate counsel as

amicus curiae in the trial court, and in this Court, even if their separate counsel was not


                                                  18
considered to be representing a party. In these circumstances, there is no need for this Court to

address the additional issue Seay raises.

                                            Conclusion

       The judgment of the circuit court is reversed. Pursuant to Rule 84.14, we enter the

judgment the circuit court ought to have given, and certify to the Secretary of State the following

official summary statement for HJR 90, to appear on the ballot at the November 4, 2014 general

election:

               Shall the Missouri Constitution be amended to permit voting in person or
       by mail for a period of six business days prior to and including the Wednesday
       before the election day in general elections, but only if the legislature and the
       governor appropriate and disburse funds to pay for the increased costs of such
       voting?




                                                     __________________________________
                                                     Alok Ahuja, Chief Judge
All concur.




                                                19
                                        APPENDIX
                                SECOND REGULAR SESSION
                       [TRULY AGREED TO AND FINALLY PASSED]
                                  SENATE SUBSTITUTE FOR
                          SENATE COMMITTEE SUBSTITUTE FOR
                          HOUSE COMMITTEE SUBSTITUTE FOR

  HOUSE JOINT RESOLUTION NO. 90
                            97TH GENERAL ASSEMBLY
                                               2014



                                 JOINT RESOLUTION
Submitting to the qualified voters of Missouri an amendment to article VIII of the Constitution
      of Missouri, by adding thereto one new section relating to early voting.




Be it resolved by the House of Representatives, the Senate concurring therein:

       That at the next general election to be held in the state of Missouri, on Tuesday next
following the first Monday in November, 2014, or at a special election to be called by the
governor for that purpose, there is hereby submitted to the qualified voters of this state, for
adoption or rejection, the following amendment to article VIII of the Constitution of the state of
Missouri:
        Section A. Article VIII, Constitution of Missouri, is amended by adding thereto one new
section, to be known as section 11, to read as follows:
       Section 11. 1. Qualified voters of the state shall be entitled to vote in person or by
mail in advance of the day of the general election, but only under the following
subdivisions:
       (1) Qualified voters casting ballots under this section shall have been registered to
vote, unless otherwise provided by law, on or before the fourth Wednesday prior to the day
of the election;



                                                20
       (2) No qualified voter shall be required to state any reason, excuse, or explanation
for casting a ballot under this section;
        (3) Ballots shall be cast in person or by mail only during the six business days, not to
include Saturday or Sunday, immediately prior to and including the last Wednesday prior
to the election day. In-person ballots shall be cast at the local election authority during its
regular business hours;
      (4) Each local election authority shall appoint at least one election judge from each
major political party to serve at the site of the local election authority. Procedures for
appointing judges, casting ballots, and tabulating ballots shall be the same as provided by
general election laws.
        2. No local election authority or other public official shall, in advance of the day of
the election, disclose the identity of any qualified voter who, in advance of the day of the
election, has cast or has not cast a ballot, unless the qualified voter has authorized the
disclosure. A qualified voter's authorization must be in writing, signed by the qualified
voter, dated, and delivered to the secretary of state no later than the sixth Wednesday prior
to the day of the election. An authorization is effective only for one general election.
       3. If any local election authority is required by any provision of law or of this
constitution to produce, in advance of the day of the election, a list of qualified voters who
have already cast ballots, such list shall designate those qualified voters who have not filed
a valid written authorization under subsection 2 of this section by using a random
designation that does not identify those qualified voters or provide residential or other
personal information from which their identities might be determined. If any such list is
required to be delivered promptly after a request, the list shall be deemed to have been
promptly delivered if it is delivered no later than 5:00 p.m. on the Monday before the
election day. In addition to the restrictions in this section on the provision of identifying
information, any such list shall include only qualified voter information authorized to be
disclosed pursuant to general election laws.
       4. The secretary of state and local election authorities shall provide qualified voters
mail-in ballots under this section only by mail, and only upon the written, signed, and
dated request of a qualified voter. Such request shall be valid for only one general election.
No qualified voter shall receive more than one mail-in ballot.
       5. No local election authority or other public office shall conduct any activity or
incur any expense for the purpose of allowing voting in person or by mail in advance of the
general election day unless a state appropriation is made and disbursed to pay the local
election authority or other public office for the increased cost or expense of the activity.



                                              21
        6. The provisions of this section shall be self-executing. Any law that conflicts with
this section shall not be valid or enforceable. If any provision of this section is found by a
court of competent jurisdiction to be unconstitutional or unconstitutionally enacted, the
remaining provisions of this section shall be and remain valid. Nothing in this section shall
be deemed to repeal or invalidate section 7 of article VIII of this constitution or to repeal or
invalidate general laws permitting certain qualified voters to cast absentee ballots. This
section shall not be repealed or invalidated by constitutional amendment, in whole or in
part, unless the text of the amending provision expressly references this section or the parts
thereof that are to be repealed, and no part of this section shall be repealed by implication.
       Section B. Pursuant to chapter 116 and other applicable constitutional provisions and
laws of the this state allowing the general assembly to adopt ballot language for the submission
of this joint resolution to the voters of this state, the official summary statement of this resolution
shall be as follows:
       "Shall the Missouri Constitution be amended to permit voting in person or by
       mail for a period of six business days prior to and including the Wednesday
       before the election day in all general elections?"




                                                  22
