Studio portrait of Sid Salter. (photo by Beth Wynn / © Mississippi State University)
By: Sid Salter
The Mississippi Supreme Court has heard arguments in a case that not only decides the fate of a voter initiative authorizing a medical marijuana program in Mississippi but may well decide the future of the state’s entire voter initiative process.
In the 2020 elections, Mississippi voters overwhelmingly approved a voter initiative authorizing a medical marijuana voter initiative as outlined in Initiative 65 over the express objections of the majority of legislative leaders.
The voters gave Initiative 65 a 73.7 percent approval while giving the legislative alternative Initiative 65A only 26.3 percent of the vote. The pro-marijuana initiative outpolled Republican incumbent President Donald Trump by some 20 percentage points with state voters – even outpolling the state’s 72.98 percent decision to change the state flag.
So now, a group of judges on the state’s highest court – all of whom will face those same voters in future elections – must now decide the fate of a lawsuit challenging not to the marijuana plan approved by voters, but the voter initiative process they used to get it on the ballot.
In October of 2020, a legal challenge ensued from Madison Mayor Mary Hawkins Butler questioning the legality of Secretary of State Michael Watson’s certification of the initiative to be placed on the ballot based on the contention that it was done in violation of Section 273 of Article 15 of the Mississippi Constitution: “The signatures of the qualified electors from any congressional district shall not exceed one-fifth of the total number of signatures required to qualify an initiative petition for placement upon the ballot.”
The problem is that Mississippi’s initiative process was adopted in 1992 when Mississippi had five congressional districts. Following the 2000 Census, Mississippi was one of 18 states that lost a congressional district — moving from five to the present four — but the procedures guiding the initiative process were never updated by the Legislature to reflect the change.
Both Watson and his predecessor, now Lt. Gov. Delbert Hosemann, say they relied on opinions from the state Attorney General’s Office in following the 1992 voter initiative guidelines for certifying signatures.
Now the state Supreme Court has to decide this contentious issue. Politically, the stakes are high for the Legislature and for the judges themselves. Historically in Mississippi, elected officials who directly undo the actions of the voters tend to find themselves struggling at the polls.
For lawmakers, the political sword has at least two distinct edges. First, as in the case of medical marijuana, the Legislature has had the opportunity to dispose of contentious issues and decided instead to kick the political can down the road.
But supporters of similarly contentious or politically difficult issues went to school on the success of the medical marijuana initiative. Advocates of issues like Medicaid expansion and other issues believe that they can also be successful in side-stepping lawmakers and going straight to the voters to get action on their issues.
Lawmakers, legal analysts, and journalists have previously raised questions about the five districts versus four districts contradiction in the law. The court clearly isn’t just ruling on the medical marijuana initiative, but the validity of the entire voter initiative process.
Is this merely a minor procedural error or a fatal flaw that invalidates every voter initiative adopted under the flawed language?
The initiative process in Mississippi is one that was designed by the Mississippi Legislature to be difficult for those citizens who wish to circumvent lawmakers and get into the business of directly writing or changing laws for themselves.
Since 1993, there have been 66 instances in which various Mississippi citizens or groups have attempted to utilize the state’s initiative process. Like a carton of milk left unconsumed, 52 of those attempts simply expired — dying on the legal vine for lack of certified signatures or other procedural deficiencies. Voter initiatives are advanced civics and fail easily.
But the Legislature has to be closely watching this decision because more effective activism in the voter initiative process is a sure thing if the process survives judicial review.