What a bind we could be in if the state Supreme Court decides to throw out our constitutional initiative process. It would leave Mississippians without a direct way to amend our constitution.
It is obvious that lawmakers and other state leaders care little for the initiative process. Many — if not most — would welcome a Supreme Court decision killing it. If lawmakers wanted to ensure such a right continued to exist, they would have addressed the glaring issue over the past 20 years.
Quick background: Mississippi law requires a certain number of voter signatures to be collected for a ballot initiative to be approved, with no more than one-fifth of the signatures coming from “any congressional district.” When the language was adopted, Mississippi had five congressional districts. Starting in 2002, Mississippi dropped to four congressional districts. It is now mathematically impossible to gather names from four congressional districts without having more than one-fifth in any one of them. Following the direction of an attorney general’s opinion, petitioners seeking a ballot initiative have simply followed the congressional lines present at the time the law was passed.
The Supreme Court is hearing a case brought by the city of Madison and its mayor, Mary Hawkins-Butler. They are challenging whether Initiative 65 — a medical marijuana amendment that passed last year with 74% of the vote — should have been on the ballot because more than 20% of the electors came from a single congressional district.
Unless the court outright rules that using the old five congressional district lines is legal, the ballot initiative process likely is in danger. Obviously, if the court rules for the plaintiffs, the process is nullified. But the court could also throw the case out on a technicality, in which case a future lawsuit could succeed if the technicality is addressed.
In either case, it will be left to lawmakers to change the constitutional initiative process or ignore it, the latter leaving voters with no way of taking direct action to pass laws without legislative blessing.
Some lawmakers have valid concerns. Constitutional initiatives can come with unintended consequences that cannot be changed through normal legislative action. Only another ballot initiative could address such issues, a time-consuming and costly process.
For instance, Initiative 42 would have required full funding of the Mississippi Adequate Education Program, the formula used to determine how much money is needed to fund public schools. It historically has been severely underfunded. The initiative was a great idea — save one major flaw. Initiative 42 did not provide for downturns in the economy. Given the size of the education budget, if we faced a downturn even the size of the late-2000s, fully funding MAEP would have meant steep cuts to Medicaid and other agencies. It was fiscally irresponsible.
Initiative 26 would have amended the constitution to define life as being “every human being from the moment of fertilization, cloning or the functional equivalent thereof.” It provided no exceptions for rape or incest or a threat to the life of the mother. And it would have also banned certain birth control methods and likely — though unintended — in vitro fertilization. It was a poorly written amendment that went too far.
These two initiatives would have been devastating to our state. But here’s the thing: Both initiatives failed. Voters listened to all the arguments and made the right decisions.
Initiative 65 could have been better written, but it doesn’t contain anything detrimental to Mississippi. Lawmakers and state leaders concerned about the lack of tax money or where dispensaries can locate have only themselves to blame for ignoring the issue for so long despite clear public support.
And therein lies the real reason so many lawmakers and state leaders hate the ballot initiative process: They see it as usurping their power and loathe relinquishing any control. While such lawmakers should be roundly ignored, they could be the ones to decide the future of the ballot initiative process, depending on how the Supreme Court rules.