Direct democracy on the ropes in Mississippi
The 2020 Mississippi general election ballot was different. In addition to an unusually competitive U.S. Senate race, it included two constitutional measures placed on the ballot by the Legislature and one measure placed on the ballot by Mississippians using the state’s citizen initiative process.
The citizens’ initiative would have allowed qualified patients to use medical marijuana. The measure, Initiative 65, passed by an impressive margin of 73.7% to 26.3%.
Like all citizen initiatives, Initiative 65 faced a long and arduous path to the ballot. Under Section 273 of the Mississippi Constitution of 1890 and various laws that were tweaked in 1993, an initiative must be registered with the secretary of state before an official title and summary of the measure, which would appear on the ballot, are prepared by the attorney general. Once prepared by the attorney general, initiatives are valid for one year, during which time supporters must gather the signatures necessary to place the issue on the ballot.
The signature threshold required to get a citizens’ initiative on the ballot in Mississippi has long been a legal oddity. The requirement calls for a minimum of 106,190 signatures to be collected, with at least 21,238 of that number gathered from each of the five congressional districts as they existed in 2000. This is odd because since 2003, Mississippi has had four – not five – legislative districts, a downward trend that could continue if Mississippi continues to lose population.
This contradiction in the number of congressional districts referenced in Mississippi’s initiative law and the number of districts that actually exist is what recently ended up before the state Supreme Court.
Madison Mayor Mary Hawkins Butler brought the case, contending that with only four congressional districts, it is impossible to successfully fulfill the citizen initiative process. Citing the Mississippi Constitutional prohibition against any congressional district supplying more than 20% of the total number of required signatures to place an initiative on the ballot, the mayor argued that the math simply doesn’t work. With only four congressional districts and a 20% cap on the number of signatures allowed by any single district, the current rules, the argument goes, simply do not allow for more than 80% of the required signatures, and an initiative, therefore, cannot be validated by the state.
In short, the case rested on whether the Supreme Court agreed with a Mississippi mayor that the state’s initiative math is irretrievably broken.
Many lawyers and court observers assumed that the legal challenge would be dispatched in short order since courts frequently find ways to reconcile old laws with modern life. But as marijuana dispensaries prepared for business and the Mississippi Department of Health began developing a medical marijuana program, the Supreme Court remained silent.
Finally, on April 14, more than five months after Mississippi voters overwhelmingly approved medical marijuana, the Supreme Court heard oral arguments. A month later, the court issued its opinion, agreeing with Hawkins Butler that the drafters “wrote a ballot-initiative process that cannot work in a world where Mississippi has fewer than five representatives in Congress.”
With this ruling, the Supreme Court invalidated the medical marijuana initiative and any future citizen initiative until the Legislature acts to amend the initiative process. The ruling slams the brakes on efforts like Initiative 76, a campaign to expand Medicaid that was supported by the SPLC Action Fund.
For supporters of the citizen initiative process like us, the future is unclear.
This isn’t the first time that the courts have invalidated the initiative process. In 1922, the Mississippi Supreme Court found a technical reason to invalidate the process. It was not until 1992 – 70 years after the court order taking initiatives away – that the Legislature put the issue on the ballot and voters approved a new process, albeit one of the most difficult in the country.
Let’s hope the governor and Legislature act to restore this important right to voters immediately. For Mississippians desperate for better health care and a higher minimum wage – issues that can be addressed with a citizen initiative – 70 years is too long to wait.
Brandon Jones is policy director for the SPLC Action Fund in Mississippi.
Photo by AP Images
