SALTER: Surviving ballot initiative measure welcome, but short of rights voters previously had

By: Sid Salter

State Sen. John Polk, R-Hattiesburg, the chairman of the Senate Accountability, Efficiency and Transparency Committee, kept observers wondering for the first two months of the 2022 legislative session what would be the fate of efforts to revive the state’s ballot initiative process.

To his credit, the pragmatic Polk last week revealed a plan to salvage a modicum of the rights that Mississippi voters had enjoyed since the early 1990s when he guided House Resolution 39 to passage in his committee. There was a real possibility that the voters could have gone through the 2022 session with nothing on the ballot initiative front.

As noted in previous columns on this topic, there has existed a sort of iron triangle between the voters, the Mississippi Legislature, and the state Supreme Court for more than a century on the issue of ballot initiatives. The voters have struggled to hold on to their ability to bypass the Legislature in changing public policy in the state.

Why? Because the Legislature designed the former initiative process in Mississippi to be difficult for those 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 where 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.

There is nothing new about political standoffs between voters, legislators, and the courts over just who has the power in this state. The Legislature adopted an earlier initiative process in 1914. In another case, the State Supreme Court upheld it in 1917 but reversed that ruling five years later. The high court passed on a chance to undo that ruling in 1991 – when ballot initiatives entered the modern era in state government.

In the 2020 election, Mississippi voters approved a voter initiative authorizing a medical marijuana program outlined in Initiative 65 over expressed objections from majority legislative leaders. Mississippi voters approved Initiative 65 with 73.7 percent of the vote, with only 26.3 percent for Legislative Optional Initiative 65A.

But the results of that referendum were annulled by the Mississippi Supreme Court. The state’s High Court ruled that the state’s 1992 ballot initiative process was flawed because the Legislature had spent several years without addressing the impact of Mississippi’s loss of a congressional district in 2001 on the constitutional provision governing that process.

The court ruled that the state’s initiative process was broken and that because Initiative 65 was put in motion through that flawed process and procedures, the medical marijuana initiative could not stand despite overwhelming voter support.

Watching first the failed Initiative 42 on public school funding and later Initiative 65 on medical marijuana, lawmakers learned the hard way that well-funded, well-organized ballot initiatives could allow voters to work their will in spite of the Legislature.

So, in the fallout from the Supreme Court’s decision to throw out the political result of Initiative 65, it became clear that many lawmakers were prepared to shift the ballot initiative process away from constitutional changes as allowed by the 1991 initiative process to a process that will enable statutory changes only.

Polk’s actions on the resolution present no guarantee of success. There are still some hurdles to be cleared in the citizens having the right to ballot initiatives. The resolution offers a list of significant restrictions on precisely what statutory changes voters can propose – watering down the people’s powers.

But even if lawmakers do what’s necessary to enable statutory ballot initiatives, state voters will have far less power than they had before. There is a fundamental difference between being able to change the state’s constitution and changing a statute.

Some 26 states have the right to ballot initiative or referendum processes, excluding most Southern states. If Mississippi can keep the right of ballot initiative, even if for statutes only, it will represent a victory of sorts compared to most of our neighboring states.