SALTER: Voter initiative process has been a hard right to win and an even harder one to keep

By: Sid Salter

Mississippians have been fighting over what would seem the very straightforward power of state voters to bypass the Mississippi Legislature and directly propose state constitutional changes for the better part of a century.

Perhaps a more apt description would be to say that the legislative and judicial branches of Mississippi government have waged that battle, egged on frequently by the executive branch.

The recent Mississippi Supreme Court ruling that derailed the state’s medical marijuana initiative – overwhelming supported by the state’s voters – is just the latest salvo in that long, curious battle.

In the 2020 elections, Mississippi voters approved a voter initiative authorizing a medical marijuana program outlined in Initiative 65 over the express objections of the majority of legislative leaders.

Mississippi voters gave Initiative 65 a 73.7% approval while giving the legislative alternative Initiative 65A only 26.3% 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% decision to change the state flag.

Now that the high court has thrown out Initiative 65, the Legislature now faces changing the initiative process’s procedures that lawmakers crafted after the 1992 constitutional amendment passed. In the alternative, lawmakers face explaining why they failed to fix the process that gave voters the power they believed they had prior to the high court’s recent ruling.

To be sure, the modern 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 for lack of certified signatures or other procedural deficiencies.

The Legislature adopted an earlier initiative process in 1914. The State Supreme Court upheld it in 1917 but reversed that ruling five years later in another case. The high court passed on a chance to undo that ruling in 1991.

Mark Garriga, now a partner at the Butler Snow law firm and a former chief of staff to the late Mississippi Gov. Kirk Fordice, wrote a fine history/analysis of Mississippi initiative process in which he concluded: “After surviving the equivalent of a political near-death experience with the near passage of a 1995 term limits initiative there are undoubtedly those within the legislative branch who consider the I&R process a threat to legislative preeminence and want this power back” and later in the paper observed “the citizens of Mississippi with the passage of the initiative and referendum amendment to the Mississippi Constitution in 1992 reserved for themselves the power to propose amendments to their constitution. This authority is shared with the Legislature.

“Recent events suggest that the Legislature, with the passage of H.B. 472, would like to make this power theirs exclusively once again,” Garriga concluded. That bit of prophecy was well before Initiative 65.

Initiative 42 sought to put “adequate and efficient” public school funding in the state constitution and empower the state’s chancery courts to enforce such funding. It failed, but by a tight margin. Initiative 42 not only made it to the ballot, it became the defining issue in the 2015 statewide elections. From start to finish, the pro-42 effort was a well-oiled, well-financed political effort.

On Initiative 65, the political lessons of Initiative 42 were evident in the relatively easy passage of the medical marijuana plan.

Today, the rhetoric of politicians supporting a “fix” to the broken voter initiative process is free and easy. Just as the initial adoption of the modern initiative process was difficult, so, too, will be the “fix.” But in the social media era, lawmakers will face tough re-election sledding if they fail to restore the initiative process