Mississippians can have a little direct democracy, as a treat
A constitutional amendment proposed by the Mississippi Legislature would partially restore the initiative process in the state—with lots of restrictions
The Mississippi Constitution may ostensibly give its citizens the right to initiate constitutional amendments—but for the past two years, this right has been illusory. In 2021, the Mississippi Supreme Court ruled that the initiative process was inoperable, annihilating the last remaining hope that Mississippi progressives had of expanding Medicaid, legalizing cannabis, or ending felony disenfranchisement. A proposed constitutional amendment making its way through the state legislature would partially restore voters’ initiative power—but with lots of restrictions, and to nowhere near their power just a few years ago.
This proposal, if submitted to voters and ultimately ratified, would be the third separate time that Mississippians have had any initiative powers. In 1914, state voters ratified a constitutional amendment that established an initiative and referendum process. The system of direct democracy created by the amendment was pretty expansive for a Southern state:
7,500 voters could “propose any measure,” including “any law, bill, resolution, constitutional amendment, or any other legislative measure”
6,000 voters could refer a measure passed by the legislature, or individual items, sections, or parts of it, to the ballot—and unless the measure was deemed an “emergency” measure, which required a three-fourths legislative vote, its effectiveness would be suspended until upheld by the voters
The legislature could only amend or repeal an initiated statute enacted by the voters with a three-fourths vote
It didn’t last long, however. In 1922, the Mississippi Supreme Court held that the 1914 constitutional amendment was, itself, unconstitutional. After that point, direct democracy was dead in Mississippi for 70 years—until the legislature proposed (and voters ratified) another constitutional amendment in 1992 that established an initiative process for constitutional amendment.
Voters’ powers under the 1992 amendment were much narrower than under the 1914 amendment. The 1992 amendment only allowed voters to propose constitutional amendments, not statutes, and restricted them from passing any constitutional amendments relating to:
the Bill of Rights
the Mississippi Public Employees’ Retirement System
the state constitution’s protection of the “right to work”
the state constitutional amendment process itself
The initiative process also involved some back-and-forth with the legislature. The proposed amendment would be submitted to the legislature, which had the power to amend it. If it did so, the original initiative and the amended version would both be presented to voters, who would first have to decide if they wanted either proposal and second would have to pick one of the two. If a majority voted yes at the first stage, then the choice made at the second stage would be the ratified amendment. If this sounds complicated, it is—and in 2015, when the process played out in the context of school-funding amendments, nothing ended up passing.
Moreover, the standard for petition-gathering was incredibly high—it required voters to submit a number of petitions equal to 12% of the votes cast in the most recent gubernatorial election, one of the highest requirements in the country. Moreover, petition gatherers needed to equally distribute their petition gathering:
The signatures of the qualified electors from any congressional district shall not exceed one-fifth (1/5) of the total number of signatures required to qualify an initiative petition for placement upon the ballot.
At the time, when Mississippi had five congressional districts, this distribution requirement made (some) sense.
But, following the 2000 Census, Mississippi lost its 5th congressional district. As a result, the constitution’s literal requirement couldn’t be adequately complied with. Under an opinion issued by the state attorney general, however,
the geographic distribution requirement of Section 273 requires that not more than 20% of the total required number of initiative petition signatures must come from the last five-district congressional plan which was in effect prior to the adoption of the current four-district plan.
In other words, the initiative process could survive, and the one-fifth limitation could still be applied, if the congressional districts from 1992 were used instead of the present four districts.
Admittedly, this solution might seem too clever—if the purpose was to require geographic distribution, then a map of five congressional districts from decades ago, which surely reflect population distributions that would be malapportioned today utterly fails to satisfy that purpose. Maybe so. But in Mississippi, old congressional districts are used all the time. A good number of state boards and commissions require a geographic distribution of members—and rely on old formulations of congressional districts from the last few decades. So maybe it’s not that weird to use the 1992-era congressional districts for gathering petition signatures—after all, the State Veterans Affairs Board also uses the 1992-era districts for its own membership.
But the Mississippi Supreme Court was having none of that. In 2021, the Court held that “the loss of congressional representation did, indeed, break section 273 so that, absent amendment, it no longer functions.” It passed the issue to the state legislature—which really had no motivation to establish a new initiative process.
There have been rumblings for the past few years that the legislature was considering a constitutional fix to the initiative process, but nothing seemed to come of it until recently.
Senate Concurrent Resolution No. 533, which is making its way through the legislature, proposes a recreation of the initiative process. But don’t be mistaken—while S.C.R. 533 grants voters some powers, it really doesn’t give them much of anything at all. The text of the proposed amendment is bulky, and virtually all of that bulk is spent adding restrictions, exceptions, asterisks, and caveats.
First, S.C.R. 533 doesn’t allow voters to initiate constitutional amendments; it just allows them to initiate statutes.
Second, S.C.R. 533 contains no guarantee that the initiated measures approved by Mississippi voters would be protected from legislative interference after the election. Though the 1914 amendment allowed the legislature to amend initiated statutes only by a three-fourths supermajority—a relatively common requirement at the time—the proposed amendment contains no similar protection today. Accordingly, it’s not hard to imagine a constant game of cat-and-mouse between the legislature and initiative backers—one that, because of the huge costs associated with putting a measure on the ballot, the legislature would be favored to win.
Third, S.C.R. 533 contains the same procedural and technical hurdles as the 1992 amendment. It imposes the same ridiculously high petition-gathering requirement and it maintains the confusing procedure by which the legislature can propose an amendment to the initiative.
Fourth, S.C.R. 533 retains the same subject-matter restrictions as the 1992 amendment, but it adds a few new ones. Under this proposal, voters can’t:
“propose any new local or special law” (that is, laws that only apply to specific counties or cities)
“propose any new law or amend or repeal any existing law that appropriates funds from the State Treasury”
“propose any new law or amend or repeal any existing law relating to abortion”
The last restriction has gotten the most attention so far—and rightfully so. Though Mississippi is a socially conservative state, voters in 2011 rejected a so-called “fetal personhood” constitutional amendment, and recent polling shows that a majority of Mississippians opposed the reversal of Roe v. Wade, meaning that the right kind of abortion-rights measure could win approval from Mississippi voters.
But the restriction on appropriations from the treasury is also a meaningful restriction. S.C.R. 533 requires that
If the provisions of an initiative would cause a substantial cost to the state or require the substantial expenditure of state funds, as determined according to law by the Legislative Budget Office or any successor agency, the sponsor also shall provide in the text of the initiative for the specific funding source or mechanism to pay the cost of the provisions of the initiative so that the initiative will not result in a reduction in state funds available for expenditure by the Legislature.
Note first, at the outset, that there isn’t an objective metric required for determining what a “substantial cost to the state” or a “substantial expenditure of state funds” would be. But in any event, this would require any proposal that involves spending money—and it’s hard to imagine any that wouldn’t!—to identify a funding source. This functionally operates as a requirement that initiative backers propose a tax cut (which would likely be unpopular) or a spending cut (same). It therefore functions as a pretty clear obstacle to voters expanding Medicaid by initiative, for example, because of the funding problems that doing so would require.
And fifth, S.C.R. 533 likely makes it impossible for Mississippians to meaningfully alter their state’s draconian felon disenfranchisement provisions. Under Section 241 of the Mississippi Constitution, those convicted of most felonies are disqualified from voting unless the Governor pardons them or the legislature passes an individual bill to restore a single person’s voting rights under Section 253. Because S.C.R. 533 doesn’t allow for the initiation of constitutional amendments, and because it bars voters from proposing special laws, I think a fair reading of it means that voters can’t do anything to enfranchise the 10% of Mississippi citizens—16% of Black Mississippians—who are currently excluded from the ballot box.
Is this amendment better than nothing? Perhaps. But assuming that it’ll amount to much more than nothing is likely wrong. Voters can initiate statutes, which the legislature can repeal, but the statutes can’t cover certain topics, and the path to getting a measure on the ballot is full of obstacles. It’s a Hobson’s choice—and with the legislature in control of proposing constitutional amendments, voters are powerless to give themselves another option.