As usual, restoration of Mississippi ballot initiative rights will be a long, complex fight

Columnist Sid Salter says there is sincere renewed sentiment in the Legislature to restore ballot initiative rights to state voters. But exactly how those rights are restored – or restricted – is where the process can derail.

Once again, the issue of whether Mississippi voters should have the very straightforward power to bypass the Mississippi Legislature and propose changes to state statutes or the state Constitution of 1890 is front and center.

This is a fight for lawmaking power that has ebbed and flowed through the Legislature and the state courts for over a century. 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.

From 1993 through 2021, Mississippians had the option of taking the power away from the Legislature and changing the state constitution as they deemed appropriate when the Legislature refused to act. The process was called initiative and referendum, and it was neither easy nor often successful. The 1992 initiative process in Mississippi was designed by the Legislature to be difficult for those citizens who wished to circumvent their power.

The Mississippi House passed House Concurrent Resolution 11 last week by a margin of 80 to 39. It’s the third attempt by the House to restore some form of ballot initiative power to the voters, albeit a version that affords voters far less power than they had before the state Supreme Court ruled in 2021 that the state’s 1992 ballot initiative law was rendered “unworkable and inoperable” by the Legislature’s failure to amend the law to reflect the state’s loss of a congressional district after the 2000 census.

That legal challenge came after the 2020 elections when 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.

State Supreme Court Justice Josiah Coleman wrote of the 1992 ballot initiative law in that decision: “To work in today’s reality, it will need amending – something that lies beyond the power of the Supreme Court.” The overall court decision was even more blunt: “The reduction in Mississippi’s congressional representation renders it unworkable and inoperable on its face.”

But the fatal flaw in the 1992 ballot initiative law was well-known. Succinctly, legislative inaction on amending the 1992 ballot initiative law killed direct democracy through ballot initiative in this state, not the high court.

Oversight? Hardly. The Legislature grew increasingly worried about the 1992 ballot initiative laws after the 2015 elections. 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, but it also 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 – one that provided a political roadmap to those who could put enough money and organizational muscle into a ballot initiative to thwart the will of the legislative majority.

So, there wasn’t a lot of legislative weeping when the Supreme Court ruling on the medical marijuana ballot initiative neutered the entire ballot initiative process. With a Medicaid expansion initiative and an early voting initiative in the political bullpen both with the ability to attract both money and organizational prowess, the lines were drawn.

There is sincere renewed sentiment in the Legislature in both houses to restore ballot initiative rights to state voters. But exactly how those rights are restored – or restricted – is where the process can derail.

HCR 11 offers a path to ballot initiatives that is again exceedingly difficult. It also contains new restrictions on the content of initiatives that significantly limit the ability of state voters to have an impact on substantive issues and protect legislative authority and power.

But given our state’s history on this question and the accompanying national review of ballot initiative rights in other states – Arizona, Arkansas, Florida, Michigan, Missouri, Ohio, South Dakota and Utah – it’s not surprising that Mississippi is where we currently are on this issue.