As widely reported, the Mississippi Supreme Court recently held that Mississippi’s medical marijuana ballot initiative was unconstitutional and invalid because the ballot initiative law requires pre-ballot approval from voters from five federal representative districts. Mississippi now only has four federal representatives and, therefore, only four representative districts, making it mathematically impossible to satisfy the five-district requirement. The Court’s decision claimed to have nothing to do with medical marijuana, but, rather, was simply based on a glitch in Mississippi’s ballot initiative procedure that arose when Mississippi lost population and lost its fifth representative district. Mississippians wondering if that glitch will affect the other ballot initiatives that have passed since the glitch arose (Voter ID and eminent domain reform), may soon get their answer.
In 2011, Mississippi voters approved a ballot initiative which requires Mississippians show a government-issued photo ID at their polling place in order to vote. Those who oppose the law are eyeballing the Mississippi Supreme Court’s medical marijuana decision as ammunition against the Voter ID law and may very soon file suit arguing that the Voter ID ballot initiative is unconstitutional for the same reason as the medical marijuana ballot initiative—the ballot initiative process is broken.
However, you may remember that I wrote in my last article that the glitch in the ballot initiative law was well known to state legislators long before the Supreme Court’s recent decision. The legislature knew ballot initiatives were vulnerable and could have fixed the glitch at any time. In fact, bills were introduced that would have fixed the glitch, but the legislature never did fix it, and some commentators believe they did so just in case the citizens passed a ballot initiative that the legislature did not like. Regardless of why, the legislature left the glitch sitting there, embedded into the ballot initiative process, and allowed Mississippi activists and voters to follow a broken process passing ballot initiatives that were subject to being nullified with a lawsuit.
But Voter ID was extremely popular with the base of Mississippi’s majority party and it would be a bad look if a fixable, but yet unfixed, glitch killed the Voter ID ballot initiative—the legislature would have a lot of explaining to do to folks they count on for support. The Voter ID law needed to be protected from the glitch, so, in the 2012 legislative session, the first session after the people passed Voter ID by ballot initiative, the legislature turned the Voter ID ballot initiative into a legislatively passed law. Voter ID is on the books twice in case the glitch in the ballot initiative process makes the citizen-passed law void. If the Voter ID ballot initiative is struck down, no worries, the Voter ID law passed by the legislature is there as a backstop. Let that sink in for a minute. Almost a decade ago the legislature was aware of the glitch in the ballot initiative process and took steps to protect a ballot initiative that it deemed worthy of protection but never fixed the underlying glitch. Other ballot initiatives were left vulnerable. Voter ID was protected, or so we thought.
Voting laws must be fair and must not disproportionately affect poor citizens or minorities. Voting ID laws have been struck down in other states because ID cards cost money; requiring an ID discourages voting because it comes with a financial cost and that financial discouragement disproportionately affects poor citizens and minorities. To address this concern, the Voter ID ballot initiative provided that any Mississippian can be issued free identification cards so they can vote. And here is the glitch in the 2012 legislature-passed Voter ID law: that law did not contain a provision for free ID cards for voting which arguably makes that law unconstitutional. A very strong lawsuit could be filed today that the Voter ID ballot initiative is invalid for the same reasons the medical marijuana ballot initiative was invalid, and the 2012 Voter ID law passed by the legislature as a back-up is invalid because it requires voters to purchase ID cards which disproportionately affects minorities.
Last week Secretary of State Michael Watson, the state official in charge of elections and voting, addressed the problems with Mississippi Voter ID and recommended a special session of the legislature to amend the Voter ID law to provide for free ID cards for voting use. Whether in a special session now or in the 2022 regular session, you can bet that Voter ID will be fixed. The more interesting question is whether or not the legislature will save medical marijuana, too, and fix the glitch in the ballot initiative process that caused these problems in the first place.
Mitchell Driskell has been an Oxford lawyer for twenty-one years. He practices criminal law, family law, business transactions and civil litigation. Email him mdriskell@danielcoker.com. Follow him on Instagram @mdriskell, twitter @MODIIItweets, TikTok @DriskellLaw and on Facebook.
