The Initiative Process Is Dead – Now What?

 

The Initiative Process Is Dead – Now What?

Justices of the Mississippi Supreme Court are often accused of avoiding controversial rulings ruling on a procedural aspect of the case, never having to arrive at the merits of the matter.

Such was not the case in their ruling on Initiative 65, the medical marijuana initiative.

Not only did the Court disqualify Initiative 65, its ruling prevents any initiatives from being on the ballot in the future – at least until Mississippi regains a fifth congressional district, or until a Constitutional amendment to fix the problem is passed by the Legislature and affirmed by the voters.

The ruling also calls into question whether the voter ID and eminent domain provisions in the Constitution are valid, since they were adopted using the same process that was used for Initiative 65.  The justices did avoid that topic.  Nowhere in the majority or dissenting opinions are either of those amendments mentioned as collateral damage from this ruling.  But it will likely be only a matter of days before a suit is filed to remove one or both of those amendments from the Constitution, using this ruling as its basis.

The Court didn’t rule on the issue of medical marijuana itself.  It said, “The Court does not have jurisdiction to review, affirm, or overturn the ‘will of the people’ as evidenced by the results on November 3, 2020.  The November 2020 results are not before us.  The only matter subject to the Court’s review today is the decision of the Secretary of State finding that the Initiative 65 petition was sufficient to be placed on the ballot.”

Absurd vs. Absurd

The initiative process in the Constitution says the number of signatures “from any congressional district” on a petition to put an initiative on the ballot “shall not exceed one-fifth of the total number of signatures required” statewide.  This provision was written just after the 1990 Census, when Mississippi retained the five congressional districts it had in the previous three decades.

But after the 2000 Census, the state lost a congressional seat.  With only four congressional districts, a literal reading of “shall not exceed one-fifth” from “any congressional district” would make it mathematically impossible to obtain enough signatures statewide to put an initiative on the ballot.  That was the argument of Mayor Butler, and six justices agreed.

Courts generally are expected to avoid a ruling based on technicalities if such a ruling would produce an absurd outcome.  Justices Robert Chamberlin, writing in dissent, said it “invites absurdity” to believe the Legislative drafters of the initiative process, much less the voters who approved it, “inserted a poison pill” that would eliminate the initiative provision if Mississippi ever lost a seat in Congress.

The clear point of the “one-fifth” requirement is that the signatures should represent all regions of the state and should therefore be proportional.  Using congressional districts as distinguishing lines was merely a method of achieving that goal by using existing proportional lines rather than designating new lines.  The short-sighted choice of wording should not be interpreted by the Court as a desire to ultimately eliminate the initiative process, according to Justice Chamberlin.

Justice Josiah Coleman, writing for the majority, saw it another way.  He said, “It is wholly within the realm of possibility that the drafters foresaw or even hoped for a drop in congressional representation that would render the ballot-initiative process unworkable.”

Without using the word “absurd,” Justice Coleman implied that it would produce absurd results to accept the dissenting justices’ suggestion to interpret “congressional districts” as being the ones that existed in 1992, when the initiative process was adopted.

In response, Justice Maxwell said this is, in fact, the very process that has been used for all initiatives that have appeared on the ballot.  He said this track record proves the use of the old five districts is not an insurmountable obstacle and in fact “works just fine.”

What happens next?

A medical marijuana bill will likely be passed by the Legislature next year.  It won’t be as expansive or permissive as Initiative 65.  It will likely change the taxing and permitting provisions that were in 65, and it will surely allow local governments to restrict where it can be grown, processed, and sold.

It is unlikely that the Legislature will send voters a Constitutional amendment to fix the “one-fifth” issue.  Speaker of the House Philip Gunn, among others, doesn’t think the initiative process is a good way to legislate, because it can only be used to amend the Constitution, which means tweaks can’t be made when necessary.  The Legislature could address that concern by allowing laws, not Constitutional amendments, to be passed by initiative, perhaps with a super-majority vote.

As mentioned above, a challenge to the voter ID provision in the Constitution is likely to occur quickly.  If such a challenge is successful, it would have little immediate impact, because voter ID is now in the law, not just the Constitution.  Any challenge now would be for future purposes, if and when there is a legislature and a governor who would repeal voter ID.

An entirely different crowd would challenge the eminent domain provision.  That initiative was opposed by then-Governor Haley Barbour and economic developers who want the government to be able to take property from one private party and give it to another private party.

At the very least, the Supreme Court’s ruling immediately takes off the table the many initiative petition drives that have been launched, including one to expand Medicaid.  The Legislature’s response, in whatever form it takes, will certainly become a campaign issue in their next election in 2023.

 

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