March 24, 2015

Megan Asikainen

Ferguson City Clerk

110 Church St.

Ferguson, MO 63135

Re: Circulation of Mayoral Recall Petitions

Clarification by City Clerk Requested

Dear Ms. Asikainen:

The American Civil Liberties Union of Missouri (“ACLU”) defends and expands

the constitutional rights and civil liberties guaranteed to all Missourians under the

United States and Missouri Constitutions. We fulfill our mission through

legislative advocacy, public education, and – when necessary – litigation.

Permissible Signature Gatherers for Mayoral Recall Petition

We have received reports that the Ferguson City Clerk’s Office has indicated it

would reject petition signatures submitted for the recall of Ferguson’s mayor,

unless those signatures were personally collected by one of the five qualified voters

who commenced the recall.

To avoid confusion and potential litigation on this issue, the ALCU encourages you

to clarify that the City Clerk will not attempt to enforce a purported

requirement that petition signatures may only be collected by the five

individuals who began the recall process.

Missouri Law Favors Recall Process

Recall elections became an essential part of the American political process in the

early 20th century so as to give voters a check on the activities of their elected

officials above and beyond their power to elect another candidate when the

incumbent’s term expired. See Meiners v. Bering Strait School District, 687 P.2d

287, 294 (Alaska 1984). Recall in Missouri was founded on the same principle. In

Missouri, the recall process is a political one, in which all doubts about recall

procedures are construed in favor of placing the recall question before the voters.

3601 Main Street Kansas City, MO 64111 (816) 470-9933 454 Whittier Street St. Louis, MO 63108 (314) 652-3114

www.aclu-mo.org BOARD OF TRUSTEES

Brad Pierce President

Shontaia Riley Pam Woodard Vice Presidents

Bob Waugh Treasurer

Daron Smith Secretary

Terry Bloomberg St. Louis Tricia Bushnell Kansas City Susan Carlson St. Louis Nimrod Chapel Jefferson City Denise Field St. Louis Laurie Hauber St. Louis Robert King St. Louis David Nelson St. Louis Aaron Novack St. Louis Bill Raney Kansas City Allen Rostron Kansas City Annette Slack Columbia Joseph Stimpfl St. Louis Steven Streen Kansas City Erica Warren Columbia Jeffrey A. Mittman Executive Director

Megan Asikainen, Ferguson City Clerk

Clarification re Circulation of Mayoral Recall Petitions

March 24, 2015

Page 2

American Civil Liberties Union of Missouri 3601 Main Street, Kansas City, MO 64111 | Phone: 816-470-9933 454 Whittier Street, St. Louis, MO 63108 | Phone: 314-652-3114

Fax: 314-652-3112 | www.aclu-mo.org

Missouri courts have consistently upheld these principles. See State ex rel. Voss v. Davis, 418

S.W.2d 163, 167 (Mo. 1967) (“Provisions reserving to the people the powers of initiative and

referendum are given a liberal construction to effectuate the policy thereby adopted. Such

provisions should be construed so as to make effective the reservation of power to the people.”);

State ex rel. Blackwell v. Travers, 600 S.W.2d 100, 113 (Mo. App. 1980); State ex rel. City Council

of City of Gladstone v. Yeaman, 768 S.W.2d 103, 106 (Mo. Ct. App. 1988); State ex rel. Ferro v.

Oellermann, 458 S.W.2d 583, 587 (Mo. Ct. App. 1970).

Scope of City Clerk Duties

The role of the City Clerk in the recall procedure is ministerial. See Vowell v. Kander, 451 S.W.3d

267, 275 (Mo. Ct. App. 2014), opinion adopted and reinstated after retransfer (July 17, 2014)

(holding that a ministerial officer “is required to carry out his or her statutory duties to the letter

of the law and must treat all persons filing properly executed legal documents with his office

equally”).

In Missouri, “[i]f a sufficient number of valid signatures appear on the [recall] petition and the

petition is in proper form[, the clerk] has no choice but to certify it as sufficient to the council.”

Oellermann, 458 S.W.2d at 587. The interpretation of who may gather the signatures on the

recall petition is not in the hands of the city clerk. The only discretion afforded to the city

clerk is to determine “whether a given name is that of a person entitled to sign the petition[;]”

otherwise the city clerk’s job regarding the validity of signatures to the recall petition “is

essentially arithmetical and ministerial.” Oellermann, 458 S.W.2d at 586, (emphasis added).

Any suggestion that signatures will only be counted by your office if they have been collected by

one of the five originators of the recall effort is beyond your authority.

Limitations on Petition Circulation Violate First Amendment

Seeking to limit who might circulate a recall petition violates the First Amendment. Those who

favor a recall “seek by petition to achieve political change in [Missouri]; their right freely to engage

in discussions concerning the need for change is guarded by the First Amendment.” Meyer v.

Grant, 486 U.S. 414, 421 (1988). “Petition circulation . . . is core political speech.” Buckley v.

America Constitutional Law Foundation, Inc., 525 U.S. 182, 186 (1999). First Amendment

protection for activity related to the gathering of signatures for recall petitions is “at its zenith.”

Chandler v. City of Arvada, Col., 292 F.3d 1236, 1241 (10th Cir. 2002). Moreover, those who

would sign a petition have a strong First Amendment interest in having their signatures recognized.

Rejecting those signatures based on who circulated the petition would be unconstitutional.

“[I]nitiative, referendum and recall are rights reserved by the people, and as such are to be

construed to make effective the reservation of power by the people. It is not in keeping with such

construction to allow those rights to be thwarted by the act of a single individual.” Oellermann,

Megan Asikainen, Ferguson City Clerk

Clarification re Circulation of Mayoral Recall Petitions

March 24, 2015

Page 3

American Civil Liberties Union of Missouri 3601 Main Street, Kansas City, MO 64111 | Phone: 816-470-9933 454 Whittier Street, St. Louis, MO 63108 | Phone: 314-652-3114

Fax: 314-652-3112 | www.aclu-mo.org

458 S.W.2d at 587. The ACLU of Missouri calls on you to promptly clarify that you will not

endeavor to discard the signatures of Ferguson voters who sign recall petitions based on who

circulated the petition.

Interpretation of Ferguson Charter

Constitutional issues aside, however, any interpretation of Ferguson’s Charter that posits the

Charter as imposing a limitation on who can circulate recall petitions lacks merit. The Charter

merely observes that the initiators of a recall effort will “be responsible for circulating the petition,”

among other things. That does not mean that they are the only ones who may circulate a petition.

For instance, the City Code provides that the City Clerk, “will be responsible for maintenance and

control of all records.” § 2-27.10. Of course, no one would suggest this responsibility means that

you the City Clerk and City Clerk alone is the only person in all of Ferguson government who may

maintain or control a public record. And while the Clerk is “responsible for” the preparing and

distributing of ballots (§ 7-3), no one would reasonably contend that the Clerk is required to do so

alone.

Likewise, the fact that those initiating the recall procedure are responsible for circulating the

petition cannot be construed as suggesting that they are the only ones who may circulate the

petition.

Immediate Resolution Requested

In order to avoid confusion and the need for litigation, the ACLU requests that you immediately

clarify that the City Clerk will not attempt to enforce a purported requirement that petition

signatures may only be collected by the five individuals who began the recall process.

Please feel free to contact the undersigned at (314) 669-3416 or jmittman@aclu-mo.org if you

need any additional information. We look forward to working with you and your office to

expeditiously and cooperatively resolve this matter.

Thank you for your attention to this matter.

Sincerely,

Jeffrey A. Mittman

Executive Director