For 30 years, Mississippians had the right to vote in ballot initiatives – then it was taken away

Part 1 in a series

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

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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.