Did the Mississippi Supreme Court just steal the people’s right to vote?

Published 2:54 pm Monday, May 17, 2021

By Jerry Mitchell

Mississippi Center for Investigative Reporters

Armed with a technicality, the Mississippi Supreme Court opened fire on medical marijuana. Now both it and the voters’ right to referendum are dead, dead, dead.

“Broadly, it’s a crippling blow to the sovereignty of the voters,” said Matt Steffey, a professor at Mississippi College School of Law. “Narrowly, it’s difficult to separate the ruling from the subject matter of this initiative. Stated differently, it’s very difficult to imagine this outcome had the challenge been to the voter ID initiative.”

In the 6-3 decision, justices struck down the medical marijuana measure, which passed by an astounding 73% in November. By comparison, Mississippi voters approved voter ID by 62%.

The right to referendum came into focus in 1992 after outgoing Democratic Gov. Ray Mabus, incoming Republican Lt. Gov. Eddie Briggs and others pushed for Mississippians to have this right to vote. Voters agreed later that year.

The 1890 state constitution requires one-fifth of signatures from each of the state’s five congressional districts in order for a referendum to qualify. But the 2000 Census caused Mississippi to lose one of those districts.

The secretary of state contended the power of referendum continued, but the state Supreme Court concluded the section “no longer functions” because of the change.

Writing for the majority, Justice Josiah Coleman said the Legislature would have to amend the referendum measure.

The constitution “should not be exchanged, expanded or extended beyond its settled intent and meaning by any court to meet daily changes in the mores, manners, habits, or thinking of the people,” he wrote. “The power to alter is the power to erase. Such changes should be made by those authorized so to do by the instrument itself—the people.”

In a dissenting opinion, Justice James D. Maxwell II accused justices of failing to heed their own words that constitutional changes should not be made by courts but “by those authorized so to do by the instrument itself — the people.”

A separate dissenting opinion by Justices Robert P. Chamberlin and Jim Kitchens quoted U.S. Supreme Court Justice Antonin Scalia, who wrote that “the context of the Constitution tells us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation.”

Steffey said he couldn’t recall another case where the Mississippi Supreme Court voided a significant part of its constitution “on such a technical basis — a basis that could’ve been avoided by reading the provision in the same manner the secretary of state and the attorney general had done.”

The justices’ decision to strip the people of this right to vote stunned Mabus.

“It’s a very technical, way too narrow, and frankly bizarre reading which is no way to take the vote of the people away,” he said. “Whatever happened to judicial restraint and common sense? They were elected by the same people whose will they just invalidated.”

The case came to the state Supreme Court after Madison Mayor Mary Hawkins Butler and the city of Madison sued, saying the medical marijuana measure would interfere with its zoning authority.

Steffey said it’s the only oral argument that he knows of before the state Supreme Court “where a justice opened the proceedings by assuring the audience that the case had nothing to do with the subject matter of the amendment under challenge.”

Since the 1992 amendment cleared the way for referendum, it was used to pass voter ID in 2011. Signature drives are already underway to enable voters to decide whether to expand Medicaid or return the old state flag with its Confederate emblem.

While some have suggested that this means voter ID would fall, too, Steffey said that depends on whether justices determined such a challenge was timely.

The majority’s opinion left Steffey, who teaches law students about the Mississippi Constitution, shaking his head. “It’s been some time since voting rights and the right to participate in constitutional government have been given so little room to breathe.”

Jerry Mitchell is an investigative reporter for the Mississippi Center for Investigative Reporting, a nonprofit news organization that is exposing wrongdoing, educating and empowering Mississippians, and raising up the next generation of investigative reporters. Sign up for MCIR’s newsletters here.

If you have any news tips, please email Jerry.Mitchell@MississippiCIR.org. You can follow him on Facebook or Twitter.