A former legislative leader who was not enamored with the state’s initiative process used to call it “government by Barabbas,” referring to the prisoner from the Bible the crowd voted to pardon rather than Jesus when given a choice by Pontius Pilate.
Unfortunately, the story has been twisted in a disturbing manner through the years to promote antisemitism. That was not the intent of the legislator.
He was arguing that sometimes there is a thin line between pure democracy and mob rule, and that the initiative process has the danger of bumping up against that line.
He said he would trust decisions made by the people if they had the time and ability to gather the information he was privy to as a legislator. But without that time and ability, he feared what the initiative could lead to a type of mob rule — government by Barabbas, he called it in off the record comments. That argument might be buoyed by recent events regarding the state’s initiative process.
Oral arguments were held last week before the Mississippi Supreme Court on the future of the initiative where people gather signatures to place issues on the ballot for voters to decide. The intent of the lawsuit was to block the initiative to legalize medical marijuana.
But make no mistake about it, attorneys representing the city of Madison, and its longtime mayor, Mary Hawkins Butler, were not arguing that the initiative to legalize medical marijuana was unconstitutional, but that the initiative process itself is unconstitutional.
They argued that there is no way to conduct an initiative under the current wording in the Mississippi Constitution. To place an issue on the ballot under the state’s initiative process, the Constitution requires an initiative sponsor to gather signatures equal to 12% of the total vote in the last gubernatorial election or roughly 106,000 votes and no more than one-fifth can come from any one congressional district. In the early 1990s, the state had five congressional districts. Now it has four.
Attorney Kaytie Pickett, arguing for Hawkins-Butler, pointed out to the Court the obvious: that if one-fifth of the signatures are gathered from each of the four current congressional districts, it is impossible to garner the required number of signatures. Because of that simple math, medical marijuana, which was approved by voters by an overwhelming margin this past November, was improperly on the ballot. But the same goes for any future initiative. The math just does not work unless the Legislature offers an amendment — that must be voted on by the people — to fix the constitutional wording, the plaintiffs argued.
It should be pointed out that in the 1910s, legislators also gave Mississippians the opportunity to vote to enact an initiative process. They voted overwhelmingly to do so, but in the 1920s, because of what the Mississippi Supreme Court justices saw as a problem with the wording in that initiative, they threw it out. Legislators did not enact a new initiative until 70 years later.
Could history repeat itself?
The requirement to gather signatures from congressional districts was included in the process by legislators, Justice Josiah Coleman pointed out, to ensure all regions of the state had a say in the effort to place an issue on the ballot.
The effort to do so was either poorly worded by happenstance or on purpose by legislators who did not like the initiative process and wanted to place it in future legal jeopardy.
There is no easy way to accomplish the goal of getting signatures from all regions of the state using congressional districts. Every 10 years, based on Census data, the congressional districts must be redrawn as mandated by federal law. What if efforts are underway to gather signatures during the redistricting process? A registered voter might be in one district when he or she signed the petition but by the time the process is completed in another.
How is that issue supposed to be resolved?
The lawsuit contends based “on the plain language of the Constitution,” the current process is invalid.
Indeed, that “plain language” does make it impossible to gather the prescribed number of signatures. But the plain language of the Constitution also says “the people reserve unto themselves the power to propose and enact constitutional amendments by initiative.”
The nine members of the Mississippi Supreme Court — all of whom must stand for election — have a difficult job. Justices must decide whether they want to take that right to place issues on the ballot away because legislators used a poor choice of words when crafting the language spelling out the initiative process.
If Supreme Court justices do take that right away, what will the people say? Will they say, “Give us Barabbas?”