Written by: Hunter Ransom
Initiative Measure No. 65 has been a controversial topic in Mississippi for the last several years. With the intent to establish a medical marijuana program in Mississippi by amending the state constitution, sponsors seemingly satisfied all requirements to get the Initiative on the ballot. The Secretary of State certified that Initiative 65 should be placed on the ballot, and the legislature even drafted an alternative, 65A, in response. More than half of the statewide voters who cast ballots voted to pass the Initiative and amend the state constitution.
The Initiative’s passage promptly faced challenges. The challenge was not to any flaw or issue with the election itself; however, it was with the process to get an initiative put on a ballot. This challenge involved something that does not come up often in legal arguments – math.
Background: Mississippi’s Initiative Process
§ 273 of the Mississippi Constitution reserves the power to propose and enact constitutional amendments by Initiative to the people of Mississippi. Among other criteria to pass an initiative, one of the main requirements is that no more than 20% of signatures must come from qualified electors in any one congressional district.
The 20% requirement made sense when the legislature passed the provision in 1990 since Mississippi had five congressional districts. However, the state lost one of the five districts due to the 2000 U.S. Census, leaving it with four congressional districts. This fact was central to the petitioner’s argument in challenging the Secretary of State’s initiative certification.
Case Summary and Arguments: Do the Math
In her official capacity and on behalf of the City of Madison, Mayor Mary Hawkins-Butler filed an emergency petition before the Mississippi Supreme Court seeking review of the sufficiency of the petition for Initiative 65. Mayor Butler argued that it is a “mathematical impossibility” to satisfy the 20% requirement in § 273 since the number of signatures from at least one of the four congressional districts would exceed 20% (i.e., 1/5) of the total number required. Thus, as Petitioners argued, the Secretary of State “unconstitutionally” certified the Initiative.
The Respondents counter-argued, among other points, that such an interpretation of § 273 was unreasonable. They argued that five congressional districts still existed for state law purposes, satisfying the 20% requirement in § 273. They warned that any other interpretation would make the initiative procedure impossible, taking away the reserved right to petition in § 273.
The Court ultimately agreed with the Petitioners that it is mathematically impossible to satisfy the 20% requirement § 273. The Court noted that the drafters, whether with intent or by oversight, wrote a ballot-initiative provision that cannot work in a world where Mississippi has five congressional districts and that the legislature will need to amend the provision to be functional today. This amendment power, the majority opinion noted, is “beyond the power of the Supreme Court.”
Three judges dissented, arguing that the majority did amend the Constitution by employing an interpretation that “judicially kills” Mississippi’s citizen initiative process. Specifically, Justice Maxell noted in his dissent that “not only is this particular initiative  dead but so is Mississippi’s citizen-initiative process.”
Consequences of the Ruling
The main consequences of the ruling are obvious: Initiative 65 is dead, and so is the citizen-initiative process under § 273. Justice Coleman was correct to note in the majority opinion that legislators have been aware of the problem with § 273 but have failed to fix it. He cited at least six attempts made by individual legislators to amend the provision to reflect the now-four congressional districts. Unfortunately, none of these attempts made it out of committee. In the majority’s view, this interpretation and rationale left it no other choice but to invalidate the procedure and leave it to the legislature to fix it.
While the majority’s interpretation makes sense, it is worth considering what such an interpretation means for the future of not only Mississippi’s citizen-initiative process but also current laws that were adopted pursuant to § 273. Moreover, by invalidating the citizen-initiative procedure under § 273, the ruling also set the state up for a potential challenge to laws passed by Initiative, such as voter ID and eminent domain laws.
The legislature has codified most voter ID law into state law, rather than just an amendment to the Constitution, which protects it from a legal challenge under the Initiative 65 ruling. However, they have not codified the portion of it that requires Mississippi to provide free ID cards to voters, nor have they codified the state’s eminent domain law preventing the government from taking private property and giving it to other non-government entities. Both of these laws are subject to challenge as a result of the Initiative 65 ruling.
The Initiative 65 ruling leaves some things to speculation. While it is something to consider, there are many differences of opinion on the viability of challenges to laws such as voter ID and eminent domain. However, for certain: until the legislature amends § 273, Initiative 65 was the last dance with Mississippi’s citizen-initiative process.