Saturday, May 22, 2021

Bigger Pie Forum: The Intiative Process is Dead, Now What?

 Bigger Pie Forum authored and sponsored this post. 

Justices of the Mississippi Supreme Court are often accused of avoiding controversial rulings ruling on a procedural aspect of the case, never having to arrive at the merits of the matter.

Such was not the case in their ruling on Initiative 65, the medical marijuana initiative.

Not only did the Court disqualify Initiative 65, its ruling prevents any initiatives from being on the ballot in the future – at least until Mississippi regains a fifth congressional district, or until a Constitutional amendment to fix the problem is passed by the Legislature and affirmed by the voters.

The ruling also calls into question whether the voter ID and eminent domain provisions in the Constitution are valid, since they were adopted using the same process that was used for Initiative 65.  The justices did avoid that topic.  Nowhere in the majority or dissenting opinions are either of those amendments mentioned as collateral damage from this ruling.  But it will likely be only a matter of days before a suit is filed to remove one or both of those amendments from the Constitution, using this ruling as its basis.

The Court didn’t rule on the issue of medical marijuana itself.  It said, “The Court does not have jurisdiction to review, affirm, or overturn the ‘will of the people’ as evidenced by the results on November 3, 2020.  The November 2020 results are not before us.  The only matter subject to the Court’s review today is the decision of the Secretary of State finding that the Initiative 65 petition was sufficient to be placed on the ballot.”

Absurd vs. Absurd

The initiative process in the Constitution says the number of signatures “from any congressional district” on a petition to put an initiative on the ballot “shall not exceed one-fifth of the total number of signatures required” statewide.  This provision was written just after the 1990 Census, when Mississippi retained the five congressional districts it had in the previous three decades.

But after the 2000 Census, the state lost a congressional seat.  With only four congressional districts, a literal reading of “shall not exceed one-fifth” from “any congressional district” would make it mathematically impossible to obtain enough signatures statewide to put an initiative on the ballot.  That was the argument of Mayor Butler, and six justices agreed.

Courts generally are expected to avoid a ruling based on technicalities if such a ruling would produce an absurd outcome.  Justices Robert Chamberlin, writing in dissent, said it “invites absurdity” to believe the Legislative drafters of the initiative process, much less the voters who approved it, “inserted a poison pill” that would eliminate the initiative provision if Mississippi ever lost a seat in Congress.

The clear point of the “one-fifth” requirement is that the signatures should represent all regions of the state and should therefore be proportional.  Using congressional districts as distinguishing lines was merely a method of achieving that goal by using existing proportional lines rather than designating new lines.  The short-sighted choice of wording should not be interpreted by the Court as a desire to ultimately eliminate the initiative process, according to Justice Chamberlin.

 

Justice Josiah Coleman, writing for the majority, saw it another way.  He said, “It is wholly within the realm of possibility that the drafters foresaw or even hoped for a drop in congressional representation that would render the ballot-initiative process unworkable.”

Without using the word “absurd,” Justice Coleman implied that it would produce absurd results to accept the dissenting justices’ suggestion to interpret “congressional districts” as being the ones that existed in 1992, when the initiative process was adopted.

In response, Justice Maxwell said this is, in fact, the very process that has been used for all initiatives that have appeared on the ballot.  He said this track record proves the use of the old five districts is not an insurmountable obstacle and in fact “works just fine.”

What happens next?

A medical marijuana bill will likely be passed by the Legislature next year.  It won’t be as expansive or permissive as Initiative 65.  It will likely change the taxing and permitting provisions that were in 65, and it will surely allow local governments to restrict where it can be grown, processed, and sold.

It is unlikely that the Legislature will send voters a Constitutional amendment to fix the “one-fifth” issue.  Speaker of the House Philip Gunn, among others, doesn’t think the initiative process is a good way to legislate, because it can only be used to amend the Constitution, which means tweaks can’t be made when necessary.  The Legislature could address that concern by allowing laws, not Constitutional amendments, to be passed by initiative, perhaps with a super-majority vote. (KF note: Gunn called for a special session to fix the initiative process Monday.)

As mentioned above, a challenge to the voter ID provision in the Constitution is likely to occur quickly.  If such a challenge is successful, it would have little immediate impact, because voter ID is now in the law, not just the Constitution.  Any challenge now would be for future purposes, if and when there is a legislature and a governor who would repeal voter ID.

An entirely different crowd would challenge the eminent domain provision.  That initiative was opposed by then-Governor Haley Barbour and economic developers who want the government to be able to take property from one private party and give it to another private party.

At the very least, the Supreme Court’s ruling immediately takes off the table the many initiative petition drives that have been launched, including one to expand Medicaid.  The Legislature’s response, in whatever form it takes, will certainly become a campaign issue in their next election in 2023. 


 

19 comments:

Anonymous said...

The people reserve the right to amend the state constitution. The supremes directly contradicted the language in the constitution. They left the people no avenue to do what the constitution explicitly says they have the right to do. I didn’t know the supremes had the power to strike through part of the constitution.

Anonymous said...

The state supreme court doesn't have the right to take away the peoples right to change the constitution.

Kick Josiah Coleman, Leslie King, Dawn Beam, David Ishee and Kenneth Griffis. Justices Chamberlin, James Maxwell II and James Kitchens out of their jobs!

Kingfish said...

Supreme Court didn't take away a right. It correctly interpreted the language in the constitution.

The real fault lies with Jim Hood. It was Jim Hood who admitted there was a "mathematical impossibility" and then just glossed over it on his own, creating law that allowed subsequent initiatives to be placed on the ballot. If he had called a strike a strike, then we wouldn't be in this position.

After Jim Hood, the fault lies with the legislature. It killed bills to fix this, including one filed this year.

Of course if we are going to look at root causes, the real problem is the federal ban on research. If that ban didn't exist, we could have a plethora of research, trials, etc that would tell us exactly what marijuana helps and how it can be safely delivered. No damn reason to ban the research.

Anonymous said...

The people reserve the right to amend the constitution. Kingfish, who took that explicit right away? A census does not take it away. The only action any official body has made to take it away is that of the Supreme Court.

Kingfish said...

Under your logic, the districts don't matter either. Why even follow that section of the constitution. What about minimum number of signatures? That just interfere's with the people's right. F*** it, lets just throw out the whole constitution and say we have whatever rights we say we have.

Anonymous said...

I’ve said many times the Legislature is the body responsible for the failure of proposition 65. But even before people knew the legislature had screwed them over the Supreme Court could have ruled 65 unconstitutional before it was even placed on the ballot. They refused to hear the case. The SOS should have known this technically could show its ugly head as well, Instead signatures were painstakingly gathered and the people thought their vote counted.

Theon said...

The Intiative Process is Dead, Now What?

"What is dead may never die"

The casual motto of (House Greyjoy and now House Hawkins-Butler)


Anonymous said...

"F*** it, lets just throw out the whole constitution and say we have whatever rights we say we have." Why not, see this happen on a daily basis due to entitlement behavior on many levels.

Anonymous said...

The Supreme Court made the correct decision. That is, if we are to remain a constitutional republic. If one doesn’t like the decision, blame the convention which gave us our constitution.
RMQ

Anonymous said...

Its the legislature's job to make the adjustment to the process since the old process is no feasible due to redistricting. But until that happens, I agree, the old process is preferable to no process because at least it doesn't strip an explicit right from the citizens. The legislature, the AG and the SOS all agreed that the old language was sufficient to meet the INTENT of the initiative process spelled out in the constitution. Intent matters. The intent was not to take away this right.

Anonymous said...

All of the arguments I have read on JJ that disagree with the supreme court are better arguments than I saw the attorney make at the hearing (except maybe the video above). He got out lawyered.

Anonymous said...

All you guys that are suddenly so concerned and butt hurt about the Constitution, really only because of weed. The math just didnt work.

Anonymous said...

The fools that some people make of themselves over a little smoking dope. What a bunch of maroons.

Anonymous said...



Simple fix, just change the wording to 1/5 of the existing congressional districts at the time of the initiative. Let's see what happens, it'll be anything but simple. The "speaka" doesn't like the initiative process because it circumvents the legislature. Checks and balances, checks and balances we don't need stinking checks and balances, we'll tell you what you need

Retired drug enforcement supervisor said...

Trust me, you don't want pot here just because the greedy politicians want some more tax money for their pet (self-serving) projects.

Taxing pot and requiring expensive permits/licenses will create a black market. Black markets in the pot industry are controlled by the cartels, who set up very large "illegal" grow operations and export to other states where it is 100% illegal. They also bring violence with them.

Then we would see armed robberies of the legal pot stores and licensed grow operations. You see profits from pot CAN NOT be deposited in banks because pot is still illegal under federal law (Schedule 1 drug), nor can credit cards be used for purchases.

Pot is a cash-only industry. No checks, no credit cards, no bank deposits.

So there is always a lot of cash on hand for the armed thugs to take.

Follow-the-money.

Kingfish said...

So what if Mississippi had gained an extra congressional district?

Anonymous said...

The criticism against the Court’s decision are not legal arguments. The Court’s ruling was upheld the constitution. It was the only correct decision. It was not a close call. The dissent is argumentative but not founded on constitutional law.
RMQ

Anonymous said...

Hopefully the voter id will be ruled unconstitutional and then we will see a legislature who is motivated to fix it. It’s all a big ticking joke right now.

Anonymous said...

I agree with 4:53 and 6:39. Many times the court has emphasized "substance over form." The substance is the right of the citizens to amend the constitution. Now the court gets hung up on the form of an impossible mathematical technicality. Right. It's all politics. Vote them out!



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