In 1914, Mississippi was midway through the Progressive Era, a period in which populist movements sought to wrest political power from entrenched financial interests including railroads and oil companies.

That year, the state’s original ballot initiative and referendum mechanism was passed, granting voters the constitutional right to put proposed new laws to a statewide vote, bypassing the legislature. It was a move toward direct democracy, and given that it provided an end-run around the legislature, prompted a political backlash.

The state supreme court eventually struck down the measure precisely because it had been used for its original intent. As a 2021 Mississippi Free Press review of the history of ballot initiatives reported, the relevant court case had “threatened one powerful official’s personal interests.”

Voters, who at the time included only males, the vast majority of them white, had approved the enabling constitutional amendment in 1914 by almost 70 percent, though it took two years for the legislature to formally enshrine initiative and referendum in the state constitution.

The enabling language included a declaration that “the people reserve to themselves the power to propose legislative measures, laws, resolutions and amendments to the constitution, and to enact or reject the same at the polls independent of the legislature; and also reserve the power, at their own option, to approve or reject at the polls any part of any act or measure passed by the legislature.” That covered both ballot initiatives and referendums, the latter of which would be excluded from a later, 1992 mechanism.

In 1917, a lawsuit styled Howie v. Brantley made its way to the state supreme court challenging the validity of the initiative and referendum process. Plaintiffs in the case, which concerned a constitutional amendment governing the state game and fish commission, argued that the two measures – statutes and constitutional amendments -- had to be put before voters separately, and that the enabling legislation had allowed them both simultaneously. The supreme court justices were conflicted but the majority was unmoved by the plaintiff’s argument and ruled that the various parts comprised a single whole, and therefore upheld the law, saying it had been properly ratified. 

Five years later, in 1922, a group of Mississippians reportedly “noticed that State Revenue Agent Stokes V. Robertson was amassing a stunning $40,000 annual salary at taxpayers’ expense – about $635,000 in today’s money,” as the Mississippi Free Press reported. In response, the citizens “sought to use direct democracy to slash Robertson’s exorbitant salary.”

To preserve his salary, Robertson petitioned the high court to kill the entire initiative and referendum process, for reasons similar to the previous challenge – that the enabling language stipulated any constitutional amendment must “be submitted in such manner and form that the people may vote for or against each amendment separately.” Robertson asked the court to strike down the procedure based on this technicality, and the justices ruled accordingly in Power v. Robertson. (Stokes V. Robertson Jr., who was born in 1913, would later become a state supreme court justice, serving from 1966 to 1982.)

The high court held that initiatives and referendums on statutes were one thing, but initiatives that created constitutional amendments were another, and that the constitutional power should have been approved in 1914 in a separate amendment. Because it had not been, the entire provision was held unconstitutional, which abolished the people’s right to self-government by initiative and referendum. According to the ruling, “The Constitution is the product of the people in their sovereign capacity. It was intended primarily to secure the rights of the people against the encroachments of the legislative branch of the government.”

If that sounds like it was supportive of public rights, it ultimately meant the public lost the power to directly enact reforms. The legislature had the authority to address the high court’s ruling by sending two new, separate amendments to voters, to give them a chance to resurrect the process for adopting or repealing laws and for amending the state constitution, but lawmakers declined to do so. It would be 70 years before such a mechanism was reinstated in the state constitution, and then, only for constitutional amendments that met certain criteria. Today, that provision has likewise been invalidated.

According to Ballotpedia, the issue “lay dormant” until 1977, when Upton Sisson, a state representative from Gulfport who was also a civil rights attorney, undertook an unsuccessful effort to reinstate initiative and referendum. His efforts caught the attention of state Attorney General Bill Allain, who pledged during his gubernatorial campaign to work for such a measure, though, as Ballotpedia notes somewhat cryptically, he was “unable to fulfill his pledge.”

The issue next came up in 1990, when Mississippi Attorney General Mike Moore and two state representatives, Raymond Vecchio and Oliver Diaz (the latter of whom would later be a state supreme court justice), presented Secretary of State Dick Molpus with an initiative petition to repeal Section 98 of the Mississippi Constitution, which prohibited a state lottery. The officials were spearheading a move to establish a state lottery as a means to adequately fund the state’s public schools and other infrastructure.

Molpus rejected the petition, citing the 1922 supreme court ruling, after which the petitioners filed a lawsuit in Hinds County, urging the court to reverse the earlier ruling. The case made its way to the state supreme court in 1991, which ruled that Power v. Robertson had been wrongly decided yet allowed it to stand, citing a biblical admonition, “Remove not the ancient landmark, which the fathers have set.”

Despite this setback, supporters proceeded with a new ballot initiative effort, with the aim of getting legislation passed that would allow the process to be put before voters.

Initiative and referendum became a cause célèbre in the 1991 statewide elections, and the debate created some odd bedfellows, with newly elected Republican Gov. Kirk Fordice and Democrat Moore joining forces to propose empowering voters to place proposed changes in state law and to the state constitution on the ballot, after first giving the legislature a chance to consider them, as numerous media outlets reported at the time. It was the third initiative and referendum proposal made that year.

The bipartisan proposal put forth by Fordice and Moore required that initiatives first be introduced by lawmakers in the House or Senate, and petitions could only be circulated if the lawmakers declined to act on a proposed law change or constitutional amendment. The proposal met pushback from lawmakers who saw it as an effort to usurp their own power, which included some members of the legislative Black Caucus who worried that such a mechanism could be used to harm minorities through potential changes like closing historically Black colleges and universities, repealing minority set-aside laws or requiring welfare mothers to undergo birth control implants.

During the 1991 elections, many public officials had portrayed themselves as champions of initiative and referendum, yet acting upon those convictions turned out to be another story.

Legislators opposed to the idea were concerned about both conservative and progressive issues. Among the potential efforts cited were imposing term limits on politicians at different levels; shrinking the size of the legislature; changing right-to-work laws; repealing car tag fees; tinkering with public school standards; meddling with insurance rates; tampering with property rights; and altering the state’s income tax structure.

Rep. George Flaggs (D-Vicksburg), a member of the Mississippi Black Legislative Caucus, stood at the House podium and said he would rather be hanged in the Capitol rotunda than see the initiative measure pass. Rep. Ed Buelow (R-Vicksburg) said he could not understand such sentiments, adding, “It is the epitome of democracy.”

Proponents argued that initiatives and referendums would allow the people to act on matters blocked by special interests lobbying the legislature. Critics countered that the process was itself susceptible to the influence of special interests, with well-financed groups holding advantages when it came to staging signature drives and buying campaign advertising. Ultimately, the legislature approved a watered-down version of the process, known as S. C. R. 616, and placed it on the ballot for voters to decide.

The measure allowed only changes to the state constitution and, notably, required signatures from each of the state’s five congressional districts, to ensure that the petitioners were representative of the statewide population. It also gave the legislature an opportunity to respond to proposed initiatives before they went on the ballot; if lawmakers amended them, both versions would be put to a public vote. The measure was passed by 70 percent of voters in the November 1992 election. Proposed constitutional amendments included a state lottery, term limits and prohibiting convicted felons from holding state office.

Then came the challenge in 2021 and the supreme court ruling invalidating the process due to the dated requirement in the enabling language requiring signatures from all five of the state’s congressional districts, which no longer applied because Mississippi had lost one district as a result of a decline in population. At that point, rather than simply revise the number of districts, lawmakers began a full-scale review of the law that has resulted in failure to reinstate it during the past three legislative sessions.

Such reconsideration is not limited to Mississippi. Numerous states, including Arizona, Arkansas, Florida, Michigan, Missouri, Ohio, South Dakota and Utah, are revisiting their state ballot initiatives. According to a February 2024 report by the Ballot Initiative Strategy Center, efforts to weaken the public processes are escalating, as legislatures and interest groups seek to delay or prevent measures from getting on the ballot, particularly in the aftermath of Roe v. Wade.

There have also been attempts to prevent implementation of ballot initiatives that voters have already passed, including some that address reproductive rights. In Missouri, legislators have introduced more than 20 bills to restrict the initiative process, and in Ohio, lawmakers are trying to prevent voter-approved ballot measures from becoming law, according to the Ballot Initiative Strategy Center report. Within this reckoning have come a few surprises: Voters rejected anti-abortion ballot measures in two red states, Kansas and Kentucky.

As the Florida Supreme Court was recently deliberating whether to allow a state reproductive rights initiative to be placed on the November 2024 ballot, chief justice Carlos G. Muñiz dismissed concerns that the public was not fully capable of understanding the procedural details involved in voting on the measure. “The people of Florida aren’t stupid. I mean, they can figure this out,” Muñiz said.

In Mississippi and elsewhere, the question is whether lawmakers and the courts will allow the voters to decide such issues on their own.

State Rep. Fred Shanks, chair of the House Constitution Committee and the lead negotiator with the Senate to reinstate a ballot initiative process, told The Mississippi Independent that at the outset of deliberations, ballot initiatives were pushed by “corporate lobbyists and a handful of citizens.” Noting the measure’s mixed allegiances, he said, “The Democrats I deal with don’t want it.”

Shanks said the jury is still out on whether a new measure will be passed that replaces the one struck down by the state supreme court in 2021. Despite concerns during the last legislative session that proponents of reproductive rights might be planning a major ballot initiative campaign in Mississippi, Shanks said, “I really thought we had a deal, and that makes me wonder: Is it really dead?”

Depending upon how the issue is addressed during the 2024-2025 legislative session (assuming that it is), the public’s right to direct democracy could be renewed or allowed to fade into history, whence it came. 

Image: Mississippi State Capitol in 1916, via Mississippi Department of Archives and History

Alan Huffman is a freelance writer, author and political researcher based in Bolton, Mississippi. His work has appeared in The Atlantic, The Guardian, the Los Angeles Times, the New York Times, ProPublica, the Washington Post and numerous other publications.

When the Mississippi Supreme Court cited outdated language in striking down the state’s ballot initiative process, it was unclear how the ruling might affect previous initiatives passed under the same mechanism, including voter ID and a prohibition related to eminent domain.

The enabling language drafted in 1992 required that petition signatures be gathered from all five of the state’s congressional districts, which had since been reduced to four as a result of Mississippi’s population loss in the 2000 census.

The ruling was specifically directed at Initiative 65, which legalized medical marijuana. Uncertainty over whether it invalidated the previous measures, which were passed in 2011, was rendered moot when the legislature quickly took corrective action to codify voter ID and eminent domain in separate state laws.

There was less sense of urgency – or consensus -- for addressing the underlying problem of the voided ballot initiative measure. Rather than simply correct the enabling language, some lawmakers have used the opportunity to revisit the general parameters of the provision and to push for limiting its potential scope.

Some legislators had welcomed the court ruling due to concerns about what was known as Initiative 42, which in 2015 proposed a constitutional amendment requiring “adequate and efficient” public school funding and empowering the state’s chancery courts to enforce such funding, as the news site Magnolia Tribune reported. Though Initiative 42 failed, the vote was close, and it was “the defining issue in the 2015 statewide elections,” the outlet reported, adding, “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.”

Legislative debate over the ballot initiative process during the 2023-2024 session centered on whether to craft a clean bill – one that was essentially the same as the previous one, but with the necessary correction regarding the number of congressional districts -- or to take the opportunity to more closely control the public’s authority. Abortion was a key issue. In 2023, the U.S. Supreme Court had used a Mississippi case, Dobbs v. Jackson Women's Health Organization, to upend abortion rights nationwide, overturning Roe v. Wade. Mississippi has an abortion ban.

Lawmakers were no doubt mindful that voters in six states have since either expanded or protected existing abortion rights through ballot initiatives, by enshrining those rights or rejecting constitutional restrictions. A coalition of abortion and civil rights groups will put a constitutional protection for abortion on the ballot in Florida this year, after the state supreme court gave the go-ahead for a vote (Florida also currently has an abortion ban). That initiative reportedly has widespread support among both Republican and Democratic voters.

The New York Times reported that voters have succeeded in getting reproductive rights on the ballot in Colorado, Maryland, Nevada and South Dakota, with similar initiative campaigns underway in Arizona, Arkansas and Nebraska. 

In Mississippi, Lt. Gov. Delbert Hosemann was among those pushing for a clean ballot initiative bill, without limitations. Responding to a question during a Capitol press forum in January 2024, Hosemann, who presides over the state Senate, said he did not think legislators should tell voters what issues they could pursue initiatives on.

“If we’re going to do a ballot initiative that had enough people sign on it ... then you ought to have a pretty clean ballot initiative,” Hosemann said. “I mean, if we’re doing one and you can’t do a ballot [initiative] on any of these things, then why are you doing it at all?” (Hosemann did not respond to a Mississippi Independent request for further comment.)

Concerns about the scope of ballot initiatives are not entirely new. Voters have come close to passing measures that were at odds with the agendas of some lawmakers, including imposing term limits and enshrining “personhood” – the definition that life begins at fertilization – in the state constitution. The personhood measure was promoted as a way to restrict reproductive rights, and its defeat surprised many, given the predominantly conservative leanings of Mississippi’s electorate. That reportedly influenced current efforts to exclude abortion in the legislative language enabling ballot initiatives.

The most recent House proposal to correct the ballot initiative language, H.C.R. 39, which was approved in an 80-39 House vote after an all-male group of Republican lawmakers advanced the resolution in a committee, would have disallowed making changes to the state’s abortion laws through a statewide election. House Republicans said the state’s abortion restrictions should be off-limits because the House was involved in “laying the groundwork for the U.S. Supreme Court to upend abortion rights nationwide,” the AP reported.

Another change lawmakers considered would have given them the authority to alter an initiative’s provisions – a significant departure from the previous measure.

Under H.R.C 39, an initiative would need more than 166,000 signatures in a state with about 3 million voters (a Senate version would have required even more, though the numbers varied in different iterations). Lawmakers who supported that requirement said a high signature threshold was necessary to guard against out-of-state interests pouring money into Mississippi to get issues on the ballot through the initiative process. Again, this was an effort to limit the scope of ballot initiatives and to make it more difficult to get them passed. The same argument was used to justify a new proposed requirement that a ballot initiative must pass with 60 percent of the vote. A Senate proposal required an even higher threshold, 67 percent.

State Rep. Fred Shanks (R-Brandon), who chairs the House Constitution Committee and led negotiations over the measure with the Senate, said that during the 2023-2024 deliberations, “It came down to the issue of the signature threshold – the Senate wanted over 200,000 signatures and the House position is that is just not fair. It’s a little bit of a catch-22: Outside groups like Walmart could get 200,000 signatures in a weekend, but the cost is outrageous to get that amount of signatures.”

Shanks said it is his understanding that acquiring enough signatures for the initiative that had prompted the supreme court ruling, Initiative 65, to legalize medical marijuana, cost upward of $2 million. “It’s all about money,” he said, adding that this favors well-funded organizations or individuals over average citizens.

The House eventually revised its proposed signature requirement upward because, “That was the only way I could get the votes to pass it,” Shanks said. “The Senate issue was always the signature threshold.” Still, that compromise did not sway the Senate.

Another concern lawmakers sought to address was the issue of grassroots-led constitutional amendments, which was the only mechanism enabled for ballot initiatives under the old law. Concern about publicly driven constitutional amendments was cited by state Sen. Bryan (D-Amory), illustrating that lawmakers in both parties have misgivings about ballot initiatives. Bryan told The Mississippi Independent that one of his concerns is, “If it’s in the constitution, you can’t get rid of it.” He said his preference would be to have a state referendum for statutes only, “with a reasonable but not ridiculous number of signatures [required].”

Echoing that concern, Shanks asked, “Do you really want a drug in the state constitution?” He said that once a ballot initiative measure is included in the constitution, “You’d have to go back and forth to make changes – it would be a disaster.”

A 2022 NPR report noted that there is a nationwide campaign to make ballot initiatives more difficult, primarily in Republican-controlled state legislatures, where many lawmakers are wary of public initiatives that do not align with conservative agendas, such as efforts to codify reproductive rights, raise the minimum wage, expand Medicaid or increase revenue for public education.

The website for the left-leaning Center for Media and Democracy claims the conservative American Legislative Exchange Council (known as ALEC) opposes “citizen ballot initiatives,” and cites the Resolution to Reform the Ballot Initiatives Process, which was adopted by ALEC’s Civil Justice Task Force at the Spring Task Force Summit in 2006. ALEC prepackages bills that lawmakers often follow verbatim, and is reportedly funded by conservative billionaires and allied groups that contribute to Republican state legislative campaigns.

 However, a spokesperson for ALEC told The Mississippi Independent that the organization does not have a position on ballot initiatives and suggested talking with the Heritage Foundation or the group Honest Elections, the latter of which conducts public opinion polling on elections issues. In a poll supplied to ALEC, Honest Elections described ballot initiatives as part of a “liberal effort” to reshape voting laws that is “profoundly out of step with the views of most Americans.”

Portraying ballot initiatives as part of a liberal agenda ignores the reality that such measures have been used, supported by – as well as derided by -- public officials of different political persuasions, both progressive and conservative, Democrat and Republican. In some cases, progressive elected officials are staunch opponents, while conservatives are among the supporters. The party line is more likely to be drawn over specific initiative goals and efforts to restrict them.

Lawmakers’ reluctance to undertake a simple fix of the Mississippi’s ballot initiative measure is rooted in the question of “what could come next: Medicaid expansion or abortion,” Bryan said. “We came this close to term limits,” he noted, holding up his thumb and index finger a few inches apart. “We came this close to having personhood in the constitution in 2011. It failed 58-41.”

Given that there are supporters and opponents on both sides of the aisle, who, specifically, is pushing to limit the scope of Mississippi ballot initiatives? The question is not easily, definitively answered, because the state does not consider encouraging a position on a ballot measure as lobbying (though the IRS does). For the state, such efforts fall under campaign finance and contributions are not always clearly linked to a legislative cause.

In 2020, the year Initiative 65 passed, the Mississippi Free Press reported that Gov. Phil Bryant opposed medical marijuana and endorsed a PAC that likewise was working to prevent its passage (Bryant also appointed supreme court justice Dawn Beam, who supported invalidating the measure). The Free Press cited campaign finance reports showing that Mississippi State Board of Health member James Perry, whom Bryant also appointed, had donated to the same anti-medical marijuana PAC, Mississippi Horizon, as had board chair Dr. Thad Waites. The outlet reported that the PAC was likewise supported by Edward J. Langton, a banker whom Bryant had appointed to the state Board of Health.

Katie Bryant Snell, daughter of the former governor and a former Madison County board attorney, is pictured in one news article at the opening of a Canton, Mississippi medical marijuana dispensary, and is listed as a lobbyist whose clients include Rootdown MS, a medical cannabis provider. However, she did not respond to a request for comment.

Meanwhile, lobbyist Henry Barbour, nephew of another former governor, Haley Barbour (also a lobbyist), is reportedly strategy director at BullsEye Public Affairs, an Atlanta-based lobbying firm with offices in Jackson and Tampa that has contributed to the Mississippi Horizon anti-medical marijuana PAC.

Obviously, supporters and opponents of Initiative 65 are across the board, which is true of ballot initiative measures overall.

In general, lawmakers have tended to eye the direct democracy process warily. Ballotpedia notes that Mississippi’s original 1992 ballot initiative law included limitations on what voters could do. Petitioners could not put to public vote any legislation to:

• Modify or repeal any part of the State Bill of Rights

• Amend or repeal any law or provision of the Mississippi Constitution relating to the Public Employees’ Retirement System

• Amend or repeal the Mississippi Constitution’s right-to-work provisions

• Modify the initiative process itself

Historical records cited by Ballotpedia note that ballot measures are as old as the nation. Massachusetts was the first state to hold a statewide legislative referendum, in 1778, and, according to the site, Mississippi was the most recent state to add the process to its constitution. In fact, Mississippi’s 1992 ballot initiative measure was the second such measure adopted, following a 70-year hiatus.

Mississippi’s first ballot initiative measure, passed in 1914, was also the subject of a legal challenge but was upheld by the state supreme court in 1917. Then, in 1922, the court reversed itself and ruled that the enabling amendment was unconstitutional and void.

The current controversy over ballot initiatives therefore has a complicated historical backdrop. Over the course of a century, Mississippians have gained, then lost, then regained, then re-lost the right to engage in direct-democracy votes.

Next: How we got here

Image: Mississippi Capitol dome (Ron Cogswell/Flickr)

Alan Huffman is a freelance writer, author and political researcher based in Bolton, Mississippi. His work has appeared in The Atlantic, The Guardian, the Los Angeles Times, the New York Times, ProPublica, the Washington Post and numerous other publications.

Two Mississippi Supreme Court justices running for reelection this summer were on opposite sides of a controversial ruling that invalidated the public’s right to grassroots ballot initiatives, which had enabled voters to bypass the state legislature to enact constitutional amendments.

Justices Dawn Beam and Jim Kitchens, whose nonpartisan elections will be on Nov. 5, 2024, took conflicting positions on the ballot initiative process – a disagreement that in some ways mirrors disagreements over legislative efforts to reinstate it.

The high court handed down its landmark ruling invalidating the state’s ballot initiative process three years ago, specifically in a case over an initiative that legalized medical marijuana. Though neither Beam nor chief justice Kitchens mentions the ruling on their campaign website, the ramifications continue to reverberate: During the 2023-2024 legislative session, lawmakers failed for the third time to correct a procedural flaw cited by the court in voiding the constitutional provision, which has left current and pending ballot initiatives in limbo.

Previously passed ballot initiatives include a requirement for voters to present IDs at the polls and a prohibition against governments taking private land through eminent domain, then conveying it to a private company or individual (for 10 years). The initiative the court ruled against in 2021 legalized medical marijuana.

In the aftermath of the legislature’s latest failure, House leaders plan to gage public interest in restoring the constitutional right, state Rep. Fred Shanks (R-Brandon), who chairs the House Constitution Committee and has led the chamber’s negotiations over reinstating the provision, told The Mississippi Independent.

“The House is making an effort to see where the public is,” Shanks said. “I don’t know who’s doing the polling – it may be one or two groups, like a think tank.” He said the aim is to determine “if the support is there, if it’s really worth stirring up the issue,” and that based on his own observation, “This was a no. 1 issue in the past, but this year it’s not a hot topic.”

Shanks recalled that Rep. Jason White (R-West), who is now the House speaker, told him that he intended to make restoring the ballot initiative a priority.

“That first year, we had a lot more rightwing groups reaching out, over the flag [change],” Shanks said, referring to a voter referendum that led to the replacement of the contentious state flag, which bore the Confederate emblem in its canton corner. There was interest in overriding that referendum, which the legislature had put before voters, through a citizen-led ballot initiative. Among the other ballot initiatives discussed, “Some corporations were lobbying to get things done, like grocery chains wanting to sell alcohol – liquor,” Shanks said. “They wanted to write a check and get something passed. This year, not so much.”

The supreme court had ruled that what was known as Initiative 65, to legalize medical marijuana, was invalid due to dated requirements in the ballot initiative’s 1992 enabling language. The court ruled that the initiative process was invalid due to a requirement that the signatures on initiative petitions must come from all five of the state’s congressional districts, which no longer applied because the number of districts had been reduced to four as a result of Mississippi’s decline in population.

The solution seemed simple: change “five” to “four.” But nothing was simple about what followed.

The ruling capped a lawsuit filed by the city of Madison, Mississippi over Initiative 65, which voters had overwhelming approved in 2020. The measure was seen as a progressive milestone, as was a statewide vote the same year to replace the state flag. Though lawmakers put the flag issue before voters, legalizing medical marijuana was a citizen-led ballot initiative that passed with overwhelming support.

Beam and Kitchens are among four justices who are up for reelection and the only ones who face opponents. Beam voted with the majority to invalidate Initiative 65, and with it, the existing ballot initiative process. Kitchens voted in the dissenting minority to leave the initiative and its enabling mechanism in place.

Supporters of medical marijuana characterized the high court’s ruling as judicial overstep. The Mississippi Medical Marijuana Association called it “devastating for not only patients, but voters as a whole.” The association’s director at the time said the court “overturned the will of the people of Mississippi. Patients will now continue the suffering that so many Mississippians voted to end,” and added, “It’s a sad day for Mississippi when the Supreme Court communicates to a vast majority of the voters that their vote doesn’t matter.”

That last point would have greater resonance than the medical marijuana issue itself. Some critics said the court had exerted misplaced authority over both the legislative branch and the statewide electorate.

Attempts to reach Beam for comment on the ruling, and to ask whether she has heard from constituents while on the summer campaign trail, were unsuccessful; the only mechanism for communicating with her campaign, an email form on its website, appears to be inoperable. Kitchens, when asked in an email whether he has heard from voters on the issue, and whether the court could have taken a different approach, responded that the justices speak only through formal opinions and he could not respond directly to questions. He suggested reviewing the dissenting opinion authored by justice Robert Chamberlain, with which he agreed.

Six of the court’s nine justices ruled that the ballot initiative was void; three dissented. Voting with the majority were Beam, Josiah Coleman, Michael Randolph, Leslie King, David Ishee and Kenneth Griffis. Dissenting were Kitchens, Chamberlain and James Maxwell II.

Beam said during oral arguments that it was “totally irrelevant what this court thinks about Initiative 65,” that it was strictly a constitutional issue. Chamberlain’s dissenting opinion concluded that the ruling “stretches the bounds of reason to conclude that the Legislature in 1992, when drafting [the measure] would have placed a poison pill within the language of the provision that would allow the provision and the right of the people to amend the constitution through initiative to be eviscerated at the whim of a federal injunction of such limited scope.”

Mississippi’s supreme court is comprised of five justices appointed by the governor and four chosen in nonpartisan elections. All the unelected justices were appointed by Republican governors, and the remaining four are up for reelection in November 2024, though only Kitchens and Beam have opponents. Justices Chamberlain and Maxwell are running unopposed.

Legislative elections were held in 2023, so lawmakers are not running this year, but three years ago, White predicted that lawmakers would hear from their constituents during their campaigns about the failure to fix the ballot initiative. He expressed disappointment that the first attempt to correct the enabling language had died during the 2020-2021session, saying, “People have demanded it and asked for it.” He did not respond to a request from The Mississippi Independent for further comment.

The ruling also jeopardizes six pending ballot initiatives that encompass both progressive and conservative issues: expanding Medicaid; reinstating the state’s 1890 state flag; allowing early voting; and legalizing recreational marijuana use, Mississippi Today reported.

Some current lawmakers appear to have misgivings about freely sharing constitutional power with the public and argue that the best mechanism for citizens to shape laws is through their elected representatives. That is not an entirely new idea: It also came up during debate over the initial passage of the ballot initiative measure in 1992.

“I believe in our representative form of government,” John Polk (R-Hattiesburg), chair of the Senate Accountability, Efficiency and Transparency Committee, told the Associated Press in March 2024, in explaining his decision to let the most recent House proposal to correct the enabling language die in his committee without a Senate vote. “Every four years, everyone has an opportunity to change who represents them,” Polk said. (Polk was reelected in 2023 without opposition.)

Ballot initiatives have been used numerous times since1992, all for constitutional amendments, as per Mississippi law. The terms “ballot initiative” and “referendum” are sometimes used in tandem or interchangeably, but are different processes, as this summary on the website of the Mississippi Secretary of State’s Office explains. Any measure that appears on a ballot, such as a bond election, is essentially a referendum, but Mississippi technically has no provision for such a voter-led procedure, which would enable the public to veto an action by the legislature. What Mississippi voters had, until the supreme court ruling, was a mechanism that enabled citizens to vote on new laws through constitutional amendments. Legislators still have the authority to put a proposal on the ballot for voters to approve or reject, as happened with the flag change vote.

The Secretary of State’s Office website notes that Mississippi’s ballot initiative process is (or, more accurately, was) “indirect,” meaning that after petition signatures for a citizen initiative were gathered, but before the initiative was placed on the ballot, the legislature had an opportunity to hold hearings and propose alternatives. The language stipulates that the legislature could not veto nor amend the original citizen initiative but could pass an alternative that would appear on the ballot alongside it. That is what happened with Initiative 65, with voters choosing the grassroots version over the alternative proposed by lawmakers. But that was then and this is now. The measure is no longer in force.

According to Ballot Access Mississippi, such initiatives have been undertaken 76 times by citizens or organizations since 1992. Of those, 68 failed due to procedural issues and five that survived were voted down. The only three that survived the original process and were approved were the measures related to voter ID, eminent domain and medical marijuana. The process was never meant to be easy, and it wasn’t, even before the court ruling.

The voter ID initiative (Initiative 27) requires that voters present approved identification at the polls. Eminent domain (Initiative 31) prohibits state and local governments from taking private property, then conveying it to other persons or businesses, for 10 years, though it includes exemptions for levees, roads, bridges, ports, airports, common carriers, drainage facilities and utilities, and does not apply to “public nuisances,” or structures unfit for human habitation or abandoned property.

Medical marijuana (Initiative 65) legalized treatment for more than 20 specified qualifying conditions, with individuals allowed to possess up to 2.5 ounces of marijuana, and authorized taxing marijuana sales at the current state sales tax rate. The legislature’s alternative, which failed, would have restricted smoking marijuana to terminally ill patients; required pharmaceutical-grade marijuana products and treatment oversight by licensed physicians, nurses and pharmacists; and left tax rates, possession limits and certain other details to be set by the legislature.

As a result of the high court’s ruling and the legislature’s failure to fix the problem, Mississippi is once again among a minority of states without a medical marijuana program. The ruling also effectively killed any other citizen-led effort to put issues on a statewide ballot.

Up next: Efforts to fix the ballot initiative

Images: Supporters of medical marijuana at an April 2024 event in Gulfport (via the Mississippi Medical Marijuana Association website); Mississippi Supreme Court hearing on Initiative 65 (Mississippi Today)

Alan Huffman is a freelance writer, author and political researcher based in Bolton, Mississippi. His work has appeared in The Atlantic, The Guardian, the Los Angeles Times, the New York Times, ProPublica, the Washington Post and numerous other publications.