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Mississippians Ask Federal Court to Restore Ballot Initiative Rights

a photo of Kelly Jacobs and Rep. Hester Jackson-McCray who are asking a court to restore Mississippi's ballot initiative law
Mississippi House Rep. Hester Jackson-McCray, right, and Kelly Jacobs, left, who together launched an early voting initiative campaign earlier this year, are asking to intervene in a decade-old federal court case in a bid to restore Mississippi's recently defunct ballot initiative process. Photo courtesy Mississippi Early Voting Inititative.

A group of Mississippi plaintiffs hoping to revive its citizen-led ballot initiative process took their case to federal court today. In May, the Mississippi Supreme Court voided both the initiative process and the marijuana law based on a technicality.

Today’s motion, filed in the U.S. District Court for the Southern District of Mississippi in Jackson, says “the initiative petition rights of the people of Mississippi have been wrested from them.” The federal court, the motion says, inadvertently made that possible years ago when it redrew Mississippi’s congressional districts after the Legislature failed to propose a four-district map that complied with the 1965 Voting Rights Act.

“Left to a state legislature unable to adopt a constitutionally compliant redistricting plan for the last thirty years …, the initiative petition rights of the people of Mississippi have been sideswiped and killed,” the motion says.

Legislature Prohibited From ‘Impairing’ Initiative Law

Between 2018 and 2019, medical-marijuana advocates gathered about 228,000 signatures from Mississippi voters to put Initiative 65 on the ballot, which gave voters the option to legalize medical marijuana. On Nov. 3, 2020, about two-thirds of Mississippi voters approved Initiative 65. If their wishes had been fulfilled, patients would have been able to begin obtaining medical marijuana to treat various illnesses starting in August.

But in May, the Mississippi Supreme Court ruled that Section 273 of the Mississippi Constitution, which is the part that outlines the way ballot initiatives work, “cannot work in a world where Mississippi has fewer than five representatives in Congress.” When voters adopted the process in 273, the state had five congressional districts, but lost one due to slow population growth after the 2000 Census.

Mississippi Supreme Court Associate Justices T. Kenneth Griffis (left), Dawn Beam (center) and Josiah Dennis Coleman (right) derailed Initiative 65, the ballot initiative that would have established a medical-marijuana program in Mississippi. AP Photo/Rogelio V. Solis

Since post-2000 redistricting, Mississippi’s top election officials, including current Secretary of State Michael Watson, had maintained the ballot-initiative process was still valid so long as petitioners collected signatures from each of the former five congressional districts as the lines existed in the 1990s.

But the Mississippi Supreme Court rejected the interpretation that state election officials had operated on for the past two decades, ruling Initiative 65 invalid and striking down the ability of residents to put issues on the ballot so long as there are not exactly five congressional districts. It was the second time in 99 years that the Mississippi Supreme Court had killed the ballot initiative right based on a technicality.

The motion filed today is an attempt to intervene in Smith v. Hosemann, the 2011 case in the U.S. District Court for the Southern District of Mississippi that resulted in the current congressional district map. 

Section 273 of the Mississippi Constitution, the petitioners point out, says that the “Legislature … shall in no way restrict or impair the provisions of this section or the powers herein reserved to the people.” If the Mississippi Legislature had done its duty and drawn a four-district congressional map that complied with the Voting Rights Act, today’s petitioners argue, lawmakers would have also been bound by Section 273 to take actions to ensure the citizen initiative process remained intact at the same time.

But instead, a federal court was forced to draw the map itself, relieving the Legislature of its dual responsibility to ensure compliance with the Voting Rights Act under federal law while also protecting citizens’ ballot-initiative rights as required by the state constitution. But because the Legislature has never succeeded in adopting a compliant map of its own, the map codified under state law is still the five-district one that was used in the 1990s.

“In effect, through its good-faith and federally mandated actions, this Court unknowingly and unintentionally accomplished what Mississippi’s Constitution expressly prohibited its own Legislature from doing,” the motion says.

‘Multi-Decade Dysfunctional Inaction’

The plaintiffs include proponents of the Mississippi Early Voting Initiative, whose efforts to put an initiative on the ballot to make voting more accessible were stymied when the Mississippi Supreme Court issued its ruling in May. The ruling also killed a Medicaid expansion signature-gathering initiative campaign that had just launched days earlier.

“By addressing in isolation the legal issue necessitating a redrawn districting plan for Mississippi, the Court inadvertently created a second serious legal issue for the people of Mississippi—as evidenced by the voiding of Initiative Measure 65 despite its overwhelming voter support at the ballot,” the motion says.

a protester waves a sign outside the Mississippi Supreme Court building. A sign at her foot says, "My voice matters"
An attendee waves a sign criticizing the Mississippi Legislature over dated legislation that enabled a Mississippi Supreme Court ruling that invalidated Mississippi’s initiative process and overturned a medical-marijuana initiative that voters approved in November 2020, at a rally in Jackson, Miss., Tuesday, May 25, 2021. The protest took place near both the state Capitol and the state Supreme Court building. AP Photo/Rogelio V. Solis

“Stated another way, if the Final Judgement’s remedy compelled Mississippi to use the court-drawn redistricting plan for voting and to use the still existing five district codified State plan for initiatives until such time as the Legislature resolved the conflict between the two, Initiative Measure 65 would now be law in Mississippi and early voting Initiative Measure 78 would have of chances of appearing on Mississippi voters’ ballot. 

“Such an approach would not have affected the federally imposed state redistricting plan and would have preserved the people’s Section 273 constitutional rights pending the Legislature’s resolution of the conflict so as to ‘in no way restrict or impair … powers herein reserved to the people.’”

But if the court does not act, the motion says, “the state Legislature, locked in multi-decade dysfunctional inaction, would have been unintentionally relieved of its duty not to be the source of the restriction or impairment of the people’s substantial legal right to propose and enact constitutional amendments by initiative.”

The motion says the federal court does not need to invalidate its own prior order regarding the drawing of congressional maps, nor does it need to make a decision in conflict with the Mississippi Supreme Court’s ruling.

“Simply stated, this can be done by the Court’s acknowledgement that its authority to ensure Mississippi’s compliance with the Voting Rights Act of 1965, due to the Legislature’s failure to act, cannot be used as an instrument to deprive the people of Mississippi of their constitutionally embedded initiative rights or to allow the Legislature to avoid its constitutional duty not to impair or impede Mississippians’ reserved initiative rights,” the motion says.

The petitioners seeking to intervene include Mississippi House Rep. Hester Jackson-McCray, a DeSoto County Democrat, and Kelly Jacobs, who together launched the early voting initiative earlier this year. They are represented by attorneys Wil Colom and Aphrodite K. McCarthy.

This evening, Colom told the Mississippi Free Press that he believes the Mississippi Supreme Court “misinterpreted the order of the federal court” when it applied the court’s redistricting map to the ballot initiative law. Federal courts, he said, “have only limited power to affect state law” and that does not include the power to redraw maps for purposes other than elections.

“They had to make it compliant with one-man, one-vote with the federal Voting Rights Act of 1965,” he said. “… The initiative process doesn’t involve one-man, one-vote and it doesn’t involve the Voting Rights Act. There has to be federal jurisdiction. So our view is the court should say that the five districts remain in place for every other purpose except for elections.”

Colom said the plaintiffs are not asking the federal court to reinstate Initiative 65, but to effectively reinstate the ballot initiative process itself so that his plaintiffs can continue to pursue the early voting initiative. If the proponents of Initiative 65 choose to intervene in the case and seek the medical marijuana law’s reinstatement, however, they could do so, he said.

Today’s filing is only a preliminary step. The district court must agree to allow petitioners to intervene in the decade-old case. The Legislature is currently considering a draft bill that would implement a more restrictive medical marijuana program than the one voters opted to adopt last year, but Gov. Tate Reeves has so far refused to order a special session of the Legislature to address the issue.

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