SALTER: Regular session closing with chambers unable to agree on restoring initiative process

By: Sid Salter

Since 1992 and at earlier points in the state’s history, Mississippi voters have been able to bypass the Legislature and engage in what has been called “direct democracy” in proposing constitutional amendments and getting them decided at the ballot box rather than at the state Capitol Building.

But it appears that Mississippi lawmakers have been unable to reach agreement on new rules to resurrect Mississippi’s voter initiative rights during the waning days of the 2022 regular session.

State Sen. John Polk, R-Hattiesburg, chairman of the Senate Accountability, Efficiency and Transparency Committee, and State Rep. Fred Shanks, R-Brandon, chairman of the House Constitution Committee, have been so far unable as lead conferees to get their respective committees and the legislative leadership together on key points necessary to revive the state’s ballot initiative process.

What put the two legislative chambers at odds? Primarily it is the signature threshold necessary to place a matter on the ballot. The House wanted 12 percent of those who voted in the last statewide election or about 100,000 signatures. The Senate was 12 percent of registered voters on the day of the last presidential election in the state or about 240,000.

Obviously, the Senate signature threshold is significantly higher and more difficult for those seeking to change state laws to attain.

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.

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.

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. Some 52 of those attempts simply expired for lack of certified signatures or other procedural deficiencies.

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.

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 reclaim the right of ballot initiative, even if for statutes only, it will represent a victory of sorts compared to most of our neighboring states.

Florida is the only remaining Southern state that has a very similar voter initiative process to that which Mississippi voters possessed until the Miss. Supreme Court struck it down

With the apparent failure of both legislative chambers to reach agreement on reviving Mississippi’s voter initiative process, our state would join Alabama, Georgia, Louisiana, South Carolina, and Tennessee as states that do not have either the right of voter initiative or referendum. However, Alabama, Georgia voters must approve constitutional amendments proposed by the legislature.

Neighboring Arkansas voters have initiative and referendum processes that enable them to directly propose and vote on both statutes and constitutional amendments.