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

Part 2 in a series

When the Mississippi Supreme Court cited outdated language in striking down the state’s ballot initiative process, it was unclear how the ruling might affect previous initiatives passed under the same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

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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.