For 30 years, Mississippians had the right to vote in ballot initiatives – then it was taken away
Final installment of a 3-part series
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.