When it comes to Sunshine Law, Missouri is the Show-Me State no more

Originally published by columnist Tony Messenger in the St. Louis Post-Dispatch on January 20, 2019

Roll over in your grave, Willard Duncan Vandiver.

Missouri is the Show-Me State no more.

Vandiver is the former U.S. Congressman who in a speech in 1899 declared:

“I come from a state that raises corn and cotton and cockleburs and Democrats, and frothy eloquence neither convinces nor satisfies me. I am from Missouri. You have got to show me.”

The speech is widely credited as being the origin of the sayingthat has long been Missouri’s unofficial slogan. The implication is that it takes more than fancy words from politicians to cajole Missourians. We want to see evidence. We want public accountability.

For some elected officials, that’s no longer true.

On Tuesday, the Missouri House, controlled by a veto-proof Republican majority, voted to establish a new rule that would allow elected representatives to keep their records shielded from prying eyes. This follows a November vote in the state in which 62 percent of Missourians enshrined into the state’s constitution a new provision that applies the Sunshine Law to state lawmakers. In effect, House Republicans raised their collective middle fingers and pointed them at voters.

“You want us to Show You our work?” they said. “No thank you.”

The move came on the same day that a different branch of government in Missouri stood up for the Sunshine Law, which allows citizens to hold elected officials accountable by making their work a matter of public record. The Court of Appeals, Western District, upheld a previous decision by Cole County Circuit Court Judge Patricia Joyce to fine former Cole County Prosecuting Attorney Mark Richardson for multiple violations of the Sunshine Law. That case will end up costing taxpayers $36,000 in fines and attorneys’ fees.

Richardson, who lost his re-election bid in a GOP primary last August, had been found to have “knowingly and purposefully” violated the Sunshine Law in refusing to hand over public documents sought by attorney Aaron Malin. Malin, along with David Roland of the Freedom Center of Missouri, have filed numerous similar lawsuits across the state alleging multiple violations of the Sunshine Law. They have won against prosecutors, sheriff’s departments and police departments.

In Missouri, these days, far too many public officials believe the people’s records are made to be hidden, not shared.

Just a week or so before the House decided to ignore state law and the constitution, the Department of Health and Senior Services decided, for instance, that Missourians had no right to know which individuals or businesses will be operating the nascent medical marijuana industry in Missouri. The department denied Sunshine Law requests filed by me and another Post-Dispatch reporter to see the “pre-application forms” of those people or companies who have plopped down thousands of dollars to get in line to operate what could end up being multi-million-dollar businesses, with licenses handed out by state regulators. The office of Gov. Mike Parson said it supports the decision by DHSS officials to keep taxpayers in the dark.

The Post-Dispatch has protested the decision. But it is part of a growing body of evidence that in Missouri, when residents ask their public officials to “show-me” the records, the answer is all-too-often a resounding no.

Even when the answer is yes, it often comes with a caveat.

Later this year, a Sunshine Law case against the University of Missouri is scheduled to go to trial. In that case, an animal rights group sought records related to the testing of animals, and the university’s response was to ask for $80,000.

Last year, when I wanted to see the records behind a commendation St. Louis County Police Chief Jon Belmar gave to the officers who police MetroLink, the department wanted $5,000. There are dozens of similar examples across the state.

Because the Missouri Sunshine Law sets a high bar for lawyers to win back their fees in such cases, public officials know that more often than not, the strategy of charging an exorbitant amount of money to search for records has a chilling effect on the process of obtaining them.

That leaves the public in the dark, which is what the Missouri House voted to do this week.

It’s a travesty, says lawyer Mark Pedroli of Clayton. He’s still embroiled in a Sunshine Law case of his own, seeking records (and a deposition) from former Gov. Eric Greitens about the governor’s use of the text-destroying app Confide. That lawsuit has uncovered widespread use of the app in the Greitens administration, which during its short reign became infamous for its disregard for public accountability laws.

“Missouri elected representatives are not high priests entitled to privileged communications with constituents,” Pedroli tweeted after the House’s action. “They don’t want you to see their emails/texts with their donors, maybe even dark money donors demanding favors.”

Welcome to Missouri, the State of Redaction.

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Missouri House flouts voters’ will

Originally posted by the Jefferson City News Tribune Editorial Board on January 20, 2019

The Missouri House is off to a bad start.

In its first full week of session, it wasted no time in flouting voters’ will for transparency.

In November, voters overwhelmingly approved Clean Missouri, a constitutional amendment aimed at redistricting, ethics reform and transparency.

One of its provisions requires lawmakers to follow the state’s Sunshine Law, just like other public bodies must. It clarifies legislative records, including electronic records such as email, are generally open records.

We shouldn’t even need a clarification on common sense: Government works for us and with our money. We have a right to know what its officials and employees are doing.

But the House, as reported on Wednesday, changed a rule to allow its members to keep anything private that they consider “confidential.”

Specifically, the rule change is intended to protect “caucus strategy” records and “constituent case files.”

The problem is the Sunshine Law already allows certain records to remain confidential, including matters for potential litigation, real estate purchases and hiring/firing of personnel.

“We want transparency. We want the public to know what we’re doing,” Rep. Dave Griffith said. “We want the press to know what we’re doing.”

But the House rule says just the opposite. It essentially allows its members to keep anything private they want. The Missouri House of Representatives is swapping accountability for a “trust us” pledge.

Both Griffith and Rudy Veit, Jefferson City’s two new House members, supported exempting themselves from the law and the Constitution.

Griffith said all legislators are going to err on the side of caution when looking out for constituents’ privacy concerns.

We, on the other hand, would prefer for the Sunshine Law’s exceptions to be “strictly interpreted” — which is exactly what the law says.

The Missouri House apparently thinks it’s not subject to voters’ will or the Missouri Constitution. Unfortunately, it likely will take a legal battle to attempt to undo the damage the House just did to open government.

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Lawmakers rush to undo ‘Clean Missouri’ open records reform. That’s unconstitutional.

Originally posted in the Kansas City Star on January 18, 2019

Way back in November, 62 percent of Missouri voters said yes, they do think that state lawmakers — ostensibly working on behalf of the public, after all — should be transparent.

They voted two-to-one that yes, the official records of state lawmakers should be wide open to the scrutiny of their employers, and that’s all of us.

But in Jefferson City, it’s often “opposite day.” So the Republican-controlled Missouri House put overturning the “Clean Missouri” ethics reforms on open records at the very top of their do-list.

And determined as they were, they got it done, too.

Just after getting back to town for a new legislative session, the House passed a rule — subject to the approval of no one — that says they can opt out of compliance at will and keep their records closed if they want to. Oh, and they do want to, because why should Missouri’s Sunshine Law apply to them?

It’s almost as if the vote taken 60 days ago no longer applies. Or that what voters really meant was, “Fork over those records — or not.”

Living up to a direct order from the people did not sound like fun at all, so they said representatives could withhold anything touching on partisan strategy — and unfortunately, that could be anything — or communication with constituents, again very broadly defined.

Their concern, they said, is only protecting constituent privacy. But since that’s already covered in the Sunshine Law itself, why is that necessary? At least their dishonesty is transparent.

We’re guessing that some of these same lawmakers were appalled by Hillary Clinton’s apparent attempts to get around Freedom of Information Act requests and to decide on her own which of her emails should be subject to public records requests. This is not as different as they’d like to think.

Republican House Majority Leader Rob Vescovo first proposed that correspondence with constituents and anything touching on party strategy be routinely kept confidential.

But then GOP Rep. Nick Schroer said no, let each lawmaker decide. “Each individual member, as the custodian of their own records, should have this right,” he said, and “should be able to determine what is confidential.” Which completely guts the intent of the just-passed constitutional amendment’s new open records requirement.

The rule passed on a voice vote, so individual lawmakers didn’t even have to stand up and be counted. They must still be held accountable, though.

This indifference to voters is nothing new; in the past, Missouri lawmakers have flouted the will of the people on everything from animal protection to concealed weapons.

Hollowing out a constitutional amendment is unconstitutional on its face, and courts can’t allow this arrogant action to stand.

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A bad beginning

Originally posted by the Joplin Globe on January 17, 2019

Defying the will of voters and undermining the Missouri Constitution is a bad way for lawmakers in Jefferson City to launch this session.

On Tuesday, Missouri House members gave themselves the option of keeping some emails confidential as they discussed and voted on House rules. Specifically protected are “constituent case files” and records related to “caucus strategy.”

But it was barely two months ago that Missouri voters specifically imposed transparency on lawmakers with Amendment 1 to the Missouri Constitution, and it hasn’t even been a week since those same lawmakers promised to defend that constitution, not ignore it.

State Rep. Gina Mitten, D-Richmond Heights, told lawmakers this week: “So here’s the deal, folks … basically (on Jan. 9) everybody in this room raised our hands and we swore to uphold the constitution. And whether the folks in this room like it or not, our constitution was amended in November.”

Amendment 1 was approved by a margin of nearly two to one, and it contained a number of clean government and ethics provisions, including one requiring legislators and legislative records to be subject to Missouri’s Sunshine Law. It did not give lawmakers authority to decide unilaterally what should and shouldn’t be released.

We understand and respect the needs of constituents for privacy when talking about personal matters such as benefits, and some personal information — Social Security numbers, for example — is already protected and can’t be released. It was these same constituents who said they wanted these records opened, and they said it unambiguously.

And let’s be candid — what could end up being kept from the public under the heading of “constituent case files” and “caucus strategy” is correspondence between lawmakers and their big money donors.

Mark Pedroli, an attorney who has led the campaign to expose the use by government of self-destruct apps and other technologies that wipe out government records, tweeted that Republicans “are using their ‘constituents’ as human shields to knowingly and purposefully defy the constitution. They don’t want you to see their emails/texts with their donors, maybe even dark money donors demanding favors. ‘Protecting constituents’ is a charade.”

“Amendment 1 is the Supreme law of the land, supreme to any rule or law passed by the legislature,” he wrote.

We think so too.

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The Missouri House just overturned an election. The courts should turn it back.

Originally published by the St. Louis Post-Dispatch Editorial Board on January 16, 2019

Barely two months after Missouri voters said, loudly and clearly, that state legislators’ official records must be open to the public, the Missouri House on Tuesday effectively overturned that vote and declared that members can keep their records closed. Lawmakers have done this before, on other issues. What part of “will of the people” don’t they understand?

Proponents of the “Clean Missouri” constitutional amendment that voters passed in November — and which the House has now thumbed its nose at — should get this in front of a judge as soon as possible.

The state’s voters last year overwhelmingly passed ballot measures on organized labor, the minimum wage, medical marijuana and government ethics, each in defiance of the Republicans who control the state government. The measure known as “Clean Missouri” addressed political reform in areas of redistricting, lobbyist restrictions and freedom of information.

The measure, approved by more than 60 percent of voters, changed the state Constitution to subject legislators to the state’s Sunshine Law, from which they were previously exempted. The voters said, in essence, that legislators’ official records, like those of other public bodies, must be available for public inspection, with specified exceptions for issues like privacy.

But as the Post-Dispatch’s Jack Suntrup reported, House rules approved Tuesday give individual representatives the option to withhold records regarding party strategy and correspondence with constituents. Because the measure related to House rules, it doesn’t have to go to the Senate or the governor to go into effect.

Proponents claim it’s a matter of protecting constituent privacy — a reliable red herring for politicians who want to prevent the public from seeing public records. The state’s Sunshine Law already contains protections for private information, and they know it. The “privacy” excuse is just that: an excuse, for legislators to decide unilaterally which of their public records the public can and cannot see.

Under democratic governance, that’s not how it works. The law determines what records are open, and the law in this case is clear. The House has simply decided to exempt itself from that law, even after a wide majority of voters specifically stripped it of that power and mandated greater transparency.

Voter-approved constitutional amendments aren’t suggestions; they are the law. Yet legislators have, over the years, blithely undone the will of the voters again and again, on issues including campaign limits, guns, casinos and the state’s infamous “puppy mill” industry. Each time they do it, the arrogance of it almost looks like lawmakers are trying to show the voters who’s boss.

The courts need to show those lawmakers who’s boss — and it isn’t them. If our voting process means anything, this rule change needs to be declared unconstitutional as soon as possible, in strong enough terms to make legislators think twice the next time they’re tempted to overturn an election.

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No more free meals? Life in the ‘Clean Missouri’ statehouse will never be the same

Originally posted by the Kansas City Star on January 10, 2019

The sky is falling! The sky is falling!

That’s the sense you get from longtime Jefferson City denizens these days. Lawmakers no longer can enjoy those fancy dinners with lobbyists picking up the bill. The days of pig roasts in the hallways of the state Capitol are gone. Free tickets to the big concert this weekend? That’s history, too.

There’s weeping in Missouri’s capital city all because of the new $5 limit on lawmaker gifts now in place courtesy of that Clean Missouri ethics initiative that voters approved in November.

“It will negatively affect the economy of this town,” Ron Agee, owner of Madison’s Cafe, an Italian restaurant not far from the statehouse, told the St. Louis Post-Dispatch.

Apparently Agee didn’t have much to say about whether the new $5 gift limit will result in better laws. Special interests deemed it worthwhile last year to ply the legislature with more than $1 million in food, drink and tickets to bend the laws their way.

No question the gift limit will dramatically impact the lives of lawmakers. In the good ol’ days, legislators could eat breakfast, lunch and dinner courtesy of lobbyists and still pocket their daily per diem, now totaling $115 a day.

What staggers the mind is just how long the gravy train lasted. One of my first memories of the statehouse when I arrived in 1988 was watching big men delivering heavy boxes of liquor and beer to lawmakers, courtesy of lobbyists. Those deliverymen would walk right by groups of school kids learning how laws get passed.

At least those kids got an unfiltered view.

The gift culture endured for decades despite occasional media kerfuffles. Back in the ‘80s came the story of the “lobster tails,” a group of lawmakers who ordered the most expensive stuff on the menu to stick lobbyists with outrageous tabs.

More recently, in 2013, reporters wrote about the legendary $5,000 dinner for the House Utilities Committee at CC’s City Broiler in Columbia, one of Missouri’s best steakhouses. Reportedly, Noranda, the aluminum smelter company that’s the state’s biggest user of electricity, picked up the tab.

Wish I’d been there.

In 2015, TV station KRCG caught the House Telecommunications Committee meeting not in a Capitol hearing room, but at the Jefferson City Country Club for one of the well-known “steakhouse hearings.” Paying the bill that day was the Missouri Telecommunications Industry Association, the very industry the committee regulated.

House Speaker John Diehl defended the meal as “normal practice.” A reporter asked committee chairman Bart Korman if there was anything improper about the dinner.

“I don’t know,” he said.

It went on for so many years — and was so astonishingly brazen — that the gift culture became baked into the Capitol’s culture. Many lawmakers hardly recognized it as a problem. Nearly every year, lawmakers considered a gift ban, then walked away from it.

It took citizens to step in and force change.

“It’s like night and day,” Rep. Brandon Ellington, a Kansas City Democrat, said of the new rule. “It’s like they turned off the switch.”

Jefferson City will adapt. Already one downtown establishment is offering the “Clean Missouri Cocktail” — a little rum and lime juice “topped with nothing, no garnish.”

The usual price: $8. But that tops the $5 limit. So the price was cut to $4.63.

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Challenging the Will of Voters

Originally posted by the Washington Missourian on January 10, 2019

Voters in Missouri in the November election gave strong support for Amendment 1, commonly known as Clean Missouri.

It limits gifts to lawmakers, subjects members of the House and Senate to the open-records law and changes the process for redrawing legislative districts after the 2020 census.

There are moves in the General Assembly to go against the voters’ will and change or weaken Amendment 1. Clean Missouri fears those moves and supports defenders of the amendment with a petition drive urging lawmakers to leave Amendment 1 intact.

Lawmakers should honor and respect the will of voters and keep their hands off Amendment 1.

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Our View: Do’s and don’ts for Jeff City

Originally posted by the Joplin Globe Editorial Board on January 9, 2019

It’s a new day in Jefferson City.

A new governor and lieutenant governor. A new attorney general. A new state treasurer. More than one-third of House and Senate members are new, including most of the delegation from Southwest Missouri. Leadership in both chambers is new.

It’s also time for some new solutions, and new directions.

Herewith, a list of do’s and don’ts for the coming session:

DO: Make Missouri roads and bridges job one. Voters have rejected a sales tax increase and then a gas tax increase, but the problem hasn’t gone away. The day after each election we still had one of the largest networks of roads and bridges of any state in the nation, with one of the lowest gas taxes to support that. It is a road to ruin. And while voters may have rejected the tax increases, that doesn’t absolve lawmakers of their responsibility to dig deeper for a solution.

DO: Address a weakness in the Missouri Sunshine Law that former Gov. Eric Greitens — in one of his few acts of public service — exposed. Greitens found a muddy area in the public records law and dove in buck naked and face first, as he and many of his staff relied on an app called Confide that destroyed records that legally belong to you and me. The app allows text messages to self-delete after being opened and read. Nor can they be saved by screenshot. Developers of the app promise that users can “communicate digitally with the same level of privacy and security as the spoken word.”

That is the opposite of open government. When it comes to public officials, public money and public business, privacy is anathema. Protect the public’s right to know and strengthen the Missouri Sunshine Law.

DO: Give Missouri a prescription drug monitoring program, an important and long-needed tool the state can use to push back against the opioid epidemic and what looks increasingly like the exploitation of weak and wounded Missourians by pharmaceutical companies.

DON’T: Open up issues on which voters have made their will clear. That includes right to work. That includes ethics reform. What lawmakers are really after is control of the redistricting process, but voters have spoken. Vox populi, vox dei.

DON’T: Make it harder or more expensive for Missourians to petition for future statutory or constitutional changes by bringing issues directly to the voters. This is a basic right, and while there may be ways to better tune the process, we worry that lawmakers want to give themselves a way to overrule or overturn the will of voters.

DON’T: Continue to use higher education funding as the state’s ATM every time Jefferson City wants or needs cash. Deferred maintenance has already swelled to $1.4 billion for Missouri colleges and universities, and as lawmakers have cut funding, parents and students have had to shoulder more and more of the cost. We think this has gone on long enough. At the very least, continue the practice of former Gov. Jay Nixon, who worked with higher education officials on agreements to maintain state funding if they would agree to hold off on tuition and fee increases.

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Editorial: ‘Clean Missouri’ means what it says, Gov. Parson. Don’t mess with it

Originally posted by the St. Louis Post-Dispatch Editorial Board on January 9, 2019

Gov. Mike Parson has made precious few missteps since taking over in June, and this is no time for him to mess up that record. He should rethink his suggestion of legislatively overriding the “Clean Missouri” ballot measure overwhelmingly approved by voters on Nov. 6.

The people have spoken, and if Parson or any other politician in Jefferson City proposes to ignore their will, they deserve whatever voter backlash that comes their way. Parson in particular should be mindful of his own short leash. He was not elected to the governor’s office but arrived there only by virtue of his predecessor’s badly skewed moral and ethical compass.

Parson promised a return to the straight and narrow path. First and foremost, that means upholding the will of the people. On Nov. 6, they voted overwhelmingly for Constitutional Amendment 1, the Clean Missouri ballot proposition. What Parson and others in the Republican majority don’t like is that Clean Missouri would revoke their party’s ability to gerrymander political districts in ways that effectively predetermine election outcomes and ensure one-party dominance.

Clean Missouri empowers the state demographer to map districts with emphasis on greater partisan fairness and competitiveness. Candidates would be forced not to rely on partisan affiliation as much as the power of their ideas and their ability to sway voters across the political divide.

It’s a formula designed to encourage greater centrism, which is the space most Missourians occupy on key social issues. On Nov. 6 ballot items where there was no political party affiliation attached to the issue, voters across the state rejected hard-right extremism, overwhelmingly supporting Clean Missouri, legalization of medical marijuana and a mandatory increase in the state minimum wage to $12 an hour.

Whether Parson or other Republicans don’t like the result isn’t the point. It’s whether they’re willing to respect the democratic process. A slippery slope toward dictatorship awaits anyone who believes in legislatively invalidating elections that don’t go their way.

They are sending ominous signs: “Fundamentally, you think when the people vote you shouldn’t be changing that vote,” Parson told The Associated Press last month. “But the reality of it is that is somewhat what your job is sometimes, if you know something’s unconstitutional, if you know some of it’s not right.”

Sen. Dave Schatz, now the Senate president pro tem, agrees: “I think it’s a major concern for this majority, in how that (Clean Missouri) is going to impact the future. And I do think those issues are going to have to be addressed there” with corrective legislative action.

Even some Democrats, such as state Rep. Maria Chappelle-Nadal of University City, are expressing discomfort over the demographer’s new powers.

All seem united in their dirty desire to protect political fiefdoms over democracy. Missouri voters should let them know, loud and clear, that Clean Missouri means what it says.

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Missouri Voters Backed An Anti-Gerrymandering Measure; Lawmakers Want To Undo It

Originally published by NPR on January 8, 2019

Just two months ago, Missouri voters approved a constitutional amendment to change how the state draws legislative boundaries. The state’s lawmakers, who return to session this week, aren’t having it and may seek to nix or rewrite the anti-gerrymandering law.

Missouri was one of four states where voters last year decided to make significant changes to the redistricting process in the name of curbing partisanship and reducing political influence on legislative and congressional maps.

In approving a measure known as Amendment 1 with more than 60 percent of the vote, Missouri voters chose to give much of the power to draw state House and Senate districts over to a demographer who must craft a map that emphasizes partisan fairness and competitiveness.

Before passage of Amendment 1, which also included curbs on lobbyist-paid gifts and making legislative emails open records, a panel split evenly between Republicans and Democrats, not lawmakers themselves, was tasked with drawing House and Senate maps (although courts frequently stepped in to complete the maps if the panel was deadlocked).

The criteria in the amendment, which only affects state legislative redistricting, are aimed at giving political parties a better chance at winning in places where they usually get swamped.

But fans of the measure barely had a chance to exhale before the GOP majority began to talk about repealing it. The Republican leaders of the House and Senate, as well as Gov. Mike Parson, expressed support for repealing or altering the new redistricting system.

“I think it’s a major concern for this majority, in how that is going to impact the future,” said Senate President Pro Tem-elect Dave Schatz last year. “And I do think those issues are going to have to be addressed there.”

Schatz and the Republican supermajorities in the state House and Senate appear ready to offer up their own constitutional amendment to alter or undo Amendment 1 for a statewide vote either later this year or in 2020, much to the displeasure of the initiative’s sponsors.

“Voters know when there’s games being played,” said Sean Soendker Nicholson, a Democratic political consultant who was the campaign manager for Amendment 1. “And they know that when politicians or political consultants are the one drawing their own lines or drawing lines for their friends that they’re protecting their own and not looking out for voters.”

Republicans argue the criteria used to draw legislative maps will help Democrats chip away at the large GOP majorities. While some prominent Republicans endorsed Amendment 1, Democratic lawyers helped draft the language for it. And some politically active nonprofits with ties to major Democratic donors wrote large checks to fund the campaign in favor of the initiative.

Amendment 1’s organizers ended up giving the state’s last Democratic statewide officeholder, state Auditor Nicole Galloway, a major say in picking finalists for the demographer position.

Since Democrats are clustered primarily in the St. Louis and Kansas City area, people like Sen.-elect Cindy O’Laughlin believe the amendment will produce a slew of oddly shaped districts that stretch across large swaths of terrain.

“I see no reason for a largely Republican area to be all of a sudden connected to something that’s distant from there to try to engineer the results,” O’Laughlin said. “I think that’s wrong.”

Democratic angst

It’s not just Republicans who have raised alarm about Amendment 1. A number of prominent African-American Democrats have also come out against it.

Some, including Democratic Congressman Lacy Clay of St. Louis, believe that the only way to create more competitive legislative maps will be to spread out voters from heavily African-American districts into more majority white districts.

Black Democrats in Missouri have often quarreled with their white counterparts over redistricting. And some African-American elected officials have found Republicans to be more dependable allies in creating districts with black majorities.

“I think it would disperse African-Americans into numerous districts and dilute their power and strength,” said Clay, who has a number of allies in both the Missouri House and Senate.

State Rep.-elect Maria Chappelle-Nadal believes that the upshot of Amendment 1 will be fewer African-American lawmakers in a state that experienced substantial racial unrest in 2014 after a white police officer killed an unarmed black man in Ferguson, a suburb of St. Louis.

“After what has happened in St. Louis County and the state of Missouri, I cannot by any means give up the opportunity for African-Americans to represent other minorities,” Chappelle-Nadal said.

Amendment 1 proponents contend there’s language aimed at protecting minority representation and it has received support from a number of civil rights organizations and leaders.

Nicholson warned lawmakers to think twice before trying to undo a measure that passed with strong support in both Republican and Democratic-leaning parts of the state.

“I think the governor and all the legislators who are thinking about undoing the will of the voters should look long and hard at the numbers and think about the message voters are trying to send,” Nicholson said.

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