Will voters again be able to engage in referendum process?

Published 1:00 pm Wednesday, January 12, 2022

As the 2022 regular session of the Mississippi Legislature moves forward, the question of the future of medical marijuana in the Magnolia State remains in limbo. Lawmakers appear in agreement on a plan to move forward on the issue, but Gov. Tate Reeves has other ideas.

Reeves rendered the issue moot prior to lawmakers returning for the current session by simply not calling a special session to address it. But now that lawmakers have returned, the governor has floated a pledge to veto a medical marijuana bill that doesn’t comply with his vision of it

In the 2020 elections, Mississippi voters approved a voter initiative authorizing a medical marijuana program outlined in Initiative 65 over the express objections of the majority of legislative leaders. Mississippi voters gave Initiative 65 a 73.7% approval while giving the legislative alternative Initiative 65A only 26.3% of the vote

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The pro-marijuana initiative outpolled Republican incumbent President Donald Trump by some 20 percentage points with state voters — even outpolling the state’s 72.98% decision to change the state flag.

But the results of that referendum were nullified by the Mississippi Supreme Court. The state’s high court ruled that the state’s 1992 ballot initiative process was flawed because the Legislature failed for a number of years to address the impact of Mississippi’s congressional reapportionment loss of a congressional district in 2001 on the constitutional provision controlling that process.

Bottom line, the court ruled that the state’s initiative process is broken and that since Initiative 65 was put in motion through that flawed process and procedures, the medical marijuana initiative could not stand despite voter support.

So, lawmakers now face two challenges – first addressing the thorny issue of medical marijuana in a way that respects the voters and then finding a way to restore and repair the ballot initiative process. Both of those challenges are fraught with political danger

Lawmakers have avoided approving medical marijuana efforts for decades because they don’t want to be subjected to allegations that they are somehow “soft” on drugs from potential challengers. That is particularly true when the lawmakers are facing legislative redistricting.

Ballot initiatives negate the primacy of the Mississippi Legislature as an institution – and while most lawmakers won’t say so publicly, they aren’t overjoyed at sharing that power.

Hence, Mississippians have been fighting over what would seem the very straightforward power of state voters to bypass the legislature and directly propose state constitutional changes for the better part of a century.

In the alternative, lawmakers face explaining why they failed to fix the process that gave voters the power they believed they had prior to the high court’s recent ruling on Initiative 65.

As noted on prior column on this topic, the modern initiative process in Mississippi is one that was designed by the legislature to be difficult for those citizens who wish to circumvent lawmakers and get into the business of directly writing or changing laws for themselves.

Since 1993, there have been 66 instances in which various Mississippi citizens or groups have attempted to utilize the state’s initiative process. Like a carton of milk left unconsumed, 52 of those attempts simply expired for lack of certified signatures or other procedural deficiencies.

Few voter initiatives rocked legislators more than Initiative 42, which sought to put “adequate and efficient” public school funding in the state constitution and empower the state’s chancery courts to enforce such funding. It failed, but by a tight margin.

Initiative 42 not only made it to the ballot, but it also became the defining issue in the 2015 statewide elections. From start to finish, the pro-42 effort was a well-oiled, well-financed political effort.

On Initiative 65, the political lessons of Initiative 42 were evident in the relatively easy passage of the medical marijuana plan. Today, the rhetoric of politicians supporting a “fix” to the broken voter initiative process is free and easy. Just as the initial adoption of the modern initiative process was difficult, so, too, will be the “fix.”

Will Mississippi voters – in this national environment of political distrust – accept losing their prior ability to influence their own destinies through ballot initiatives? The answer is “no” and the push to restore that process will likely be bipartisan.

Sid Salter is a syndicated columnist. Contact him at sidsalter@sidsalter.com.