Lawmakers must decide whether the initiative process should be used to try to change the Mississippi Constitution, general law, or both. Credit: Vickie D. King/Mississippi Today

The devil will be in the details as legislators attempt to revive the state’s ballot initiative process that was killed by the Mississippi Supreme Court in May — and lawmakers appear far from a consensus on how, exactly, to get there.

At the heart of the issue is whether the ballot initiative process should be used to try to amend or change the Mississippi Constitution, general law, or both. When a proposal is added to the Constitution, it is much more difficult to change.

“I hope we spend some time researching that and find something that works for everyone. We need to make sure we get this right,” said Sen. Chris Johnson, R-Hattiesburg, who as chair of the Constitution Committee most likely will play a key role in any effort to revive the ballot initiative process.

Most legislators agree that they need to pass a resolution to place on the ballot a proposal to re-establish the state’s ballot initiative process. But there are sharp differences in how that resolution should be crafted.

For instance, House Speaker Philip Gunn believes that the ballot initiative process should be changed so that it can be used to alter general law and not the Constitution.

Rep. Robert Johnson, D-Natchez, argues that the Legislature should re-create the initiative process as it was with the only exception being fixing the language that resulted in the Supreme Court striking down the process.

The Supreme Court struck down both medical marijuana, an initiative that was approved by voters in November, and the entire ballot initiative process. In a 6-3 ruling in May, the court said the constitutional mandate of gathering signatures equally among five congressional districts to place an initiative on the ballot was invalid since the state has had only four districts since the 2000 Census. When the Legislature proposed the initiative process and voters approved it in 1992, the state had five districts.

“Some people are talking about making it more difficult,” Rep. Robert Johnson said. “It is funny that is happening after people are beginning to take partisanship out of the equation and try to use the process for pocketbook issues and for issues that genuinely affect their lives.”

Recent initiative efforts that were halted by the Supreme Court ruling dealt with early voting and expanding Medicaid — both proposals that are opposed by much of the state’s governing Republican majority. And, of course, medical marijuana was approved overwhelmingly by voters in November after years where the issue was ignored by the Legislature.

Soon after the Supreme Court ruling, Gunn voiced support for the governor calling a special session “to fix” the initiative process so that the people can continue to use it. But in fixing the process, Gunn advocates that the initiative be changed so that it can be used to pass general laws, not amend the Constitution.

“That is the way most states do it,” Gunn said.

Gunn and others point out that once an issue is placed in the Constitution it is difficult to amend or to change. To change the Constitution requires approval by a two-thirds majority of both chambers of the Legislature and approval by voters during a statewide election. The other way to change the Constitution before the court ruling was through the initiative process.

“We need to do some research and see what other states are doing and make sure Mississippians have equal access to the ballot initiative process,” said Rep. Zakiya Summers, D-Jackson.

Lt. Gov. Delbert Hosemann, who presides over the Senate, said committee chairs in the upper chamber are doing that research.

In total, 25 states, not counting Mississippi, have an initiative process, according to research done by the National Conference of State Legislatures. In those 25 states, 23 allow changes to general law through the ballot initiative while 15 have processes to change both general law and their constitutions. Illinois and Florida, like Mississippi before the Supreme Court ruling, allow changes to the constitution, but not general law through ballot initiatives.

Some worry that it would be too easy for the Legislature to change the general law that was created through the ballot initiative. It takes a simple majority vote of both chambers and signature of the governor to pass a general law.

An option would be to place a higher threshold — at least for a period of years — on the number of votes needed in the Legislature to change a general law created through the initiative process.

Plus, Rep. Randy Boyd, R-Mantachie, and others argued that there would be “political consequences” for legislators and the governor for making wholesale changes to a law enacted through the initiative process.

Even many of the sponsors of the medical marijuana initiative conceded after the Supreme Court ruling that changes need to be made to what was approved by voters. If medical marijuana was in the Constitution, it would be nearly impossible to make those changes, Sen. Chris Johnson pointed out. He said there needs to be an initiative process that is “pliable” for a few years.

Sen. Hob Bryan, D-Amory, proposed a process where after a sponsor filed an initiative, there would be a period to allow people or groups to offer input on possible changes for the sponsor to consider. The sponsors would have a period of time to consider those recommendations and re-file if they agreed with any of the recommendations.

“People might say why don’t you do X or why are you doing Y,” Bryan said. “Nobody sees everything or thinks of everything. It would be an opportunity to make it better.”

Besides the debate on whether to change general law, the Constitution or both through the initiative process, another issue that might come up is the issue of number of signatures needed to place a proposal on the ballot. In Mississippi, the requirement has been a number equivalent to 12% of the popular vote of the last governor’s election, divided equally among five congressional districts.

When the Legislature approved the process, it was believed that it would be difficult to garner that 12%. But as technology has evolved and an industry has developed specializing in gathering signatures, some believe it is much easier now to obtain the 12% than it was in 1992.

Since the initiative process started in Mississippi, seven proposals have reached the ballot and only three have been approved: medical marijuana, a proposal to limit the taking of private property by the government for the use of another private entity, and a proposal to require that people display a government-issued photo identification to vote.

Gov. Tate Reeves has said he most likely would call a special session if a legislative agreement is reached on legalizing medical marijuana and fixing the initiative process. Reaching that agreement on the details of any proposal is proving troublesome.

READ MORE: Successful special sessions often began without consensus Reeves wants on medical marijuana

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Bobby Harrison, Mississippi Today’s senior capitol reporter, covers politics, government and the Mississippi State Legislature. He also writes a weekly news analysis which is co-published in newspapers statewide. A native of Laurel, Bobby joined our team June 2018 after working for the North Mississippi Daily Journal in Tupelo since 1984. He is president of the Mississippi Capitol Press Corps Association and works with the Mississippi State University Stennis Institute to organize press luncheons. Bobby has a bachelor's in American Studies from the University of Southern Mississippi and has received multiple awards from the Mississippi Press Association, including the Bill Minor Best Investigative/In-depth Reporting and Best Commentary Column.