The Mississippi constitution provides for constitutional initiatives, but the Mississippi Supreme Court in 2021 found the relevant provision to be inoperable. As a result, the constitutional initiative is not currently available to Mississippi voters. This write-up describes in red the initiative process that applied before this judicial decision rendered it inoperable.
Currently, legislatively referred amendments are the only form of statewide direct democracy available in the state. The Mississippi legislature may fix the date of the election for legislatively referred amendments; there is no requirement that voting take place at a general election. The legislature also drafts the explanatory statement that appears on the ballot. The Mississippi Secretary of State is involved only to provide public notice of the amendment and the election. Mississippi’s provisions governing legislatively referred amendments do not explicitly provide for judicial review of ballot language or related materials, but review may be available under other channels.
BACKGROUND INFORMATION
What forms of direct democracy are available, and when?
Statewide Ballot Measures in Mississippi
Mississippi does not have statutory initiatives or veto referendums, and the Mississippi Supreme Court has rendered the constitutional initiative inoperable, so legislatively referred amendments are currently the only available form of direct democracy.
X Initiatives – Statutory
√ / X Initiatives – Constitutional (Indirect + legislative alternatives)
The Mississippi Constitution provides an initiative power to propose and enact constitutional amendments. Miss. Const. art. 15, § 273(3).
However, the Mississippi Supreme Court has found this constitutional provision to be inoperable because the provision references five congressional districts, and the state now only has four. Butler v. Watson, 338 So. 3d 599 (Miss. 2021). As a result of this decision and the legislature’s failure to date to restore the initiative power, the power is currently not available to Mississippi voters.
When the constitutional initiative process was previously operable,[1] constitutional initiatives were first submitted to the legislature (rather than directly to voters). See Miss. Const. art. 15, § 273(6). Under the state constitution, if an initiative is adopted, amended, or rejected by the legislature, or if no action is taken within four months, it must be submitted to voters. See id. If the legislature amends the initiative, the legislative alternative must also be submitted. See id. § 273(7)-(8).
The state constitution also imposes various subject restrictions on initiatives. Mississippi Constitution Article 15, Section 273(5) prohibits using the initiative process as follows:
(a) to modify or repeal any portion of the Bill of Rights in the state constitution;
(b) to amend or repeal any state constitutional provision relating to the Mississippi Public Employees’ Retirement System;
(c) to amend or repeal “the constitutional guarantee that the right of any person to work shall not be denied or abridged on account of membership or nonmembership in any labor union or organization”; or
(d) to modify the constitutional initiative process itself.
Miss. Const. art. 15, § 273(5). Additionally, an initiative’s sponsor must identify the amount and sources of revenue required to implement the measure. See id. § 273(4). No more than five initiatives may appear on a single ballot, and if an initiative is proposed but rejected by the majority of voters, no initiative proposing the same or substantially the same amendment shall be submitted to voters for at least two years thereafter. See id. § 273(9), (11).
√ Legislatively Referred Amendments
Amendments to the state constitution proposed by the legislature must be approved by Mississippi voters. Miss. Const. art. 15, § 273(2).
Election Timing
A legislatively referred amendment must first be approved by a supermajority of 2/3 of both houses of the legislature. Miss. Const. art. 15, § 273(2). The legislative resolution may fix the date of the election at which the proposed amendment is to be voted upon; there is no mandate that voting take place at a general election. See id.
When the initiative process was operable, a constitutional initiative was to be submitted to voters at a statewide general election. See Miss. Const. art. 15, § 273(6). Under state law, the Secretary of State must file an initiative with the Clerk of the House of Representatives on the first day of the legislative session following the initiative’s certification. See id.; Miss. Code Ann. § 23-17-29. [2] Thereafter, if the initiative is adopted, amended, or rejected by the legislature, or if no action is taken within four months, the Secretary of State must place the initiative, as well as any legislative alternative, on the ballot for the next statewide general election. See id. To be approved, an initiative or legislative alternative must receive the majority of votes thereon and at least 40% of the total votes cast in the election. See id.; Miss. Const. art. 15, § 273(7).
BALLOT PREPARATION
What is included on the ballot, and who prepares it?
The ballot for a legislatively referred amendment in Mississippi must display the following information.
- An explanatory statement indicating the substance of the proposed amendment (75 words or less). Miss. Code Ann. § 23-15-369(1)(b).
- The statement must be printed in clear and unambiguous language, and whenever possible, it must avoid the use of legal terminology or jargon in favor of simple, ordinary, everyday language. sub. (a)–(b).
- The statement is prepared by the legislature and included in the underlying resolution. sub. (b).
When the initiative process was operable, the ballot for a constitutional initiative was required to include the following.
- The ballot title (of the initiative, and any legislative alternative): a concise statement worded as a question (20 words or less). See Const. art. 15, § 273(8); Miss. Code Ann. § 23-17-9.
- The ballot title must provide a true and impartial statement of the purpose of the measure and must not intentionally be an argument nor be likely to create prejudice for or against the measure. See Miss. Code Ann. § 23-17-9. When practicable, the question must be written such that an affirmative vote would result in a change in the current law. See id.
- The ballot title must be prepared by the Attorney General. See Code Ann. §§ 23-17-9, –33.
- For an initiative, the ballot title is to be drafted during the Attorney General’s pre-circulation review. See Code Ann. §§ 23-17-9, –5.
- For a legislative alternative, the ballot title must be distinct from that of the initiative and must indicate as clearly as possible the essential differences between the initiative and the legislative alternative. See id. § 23-17-33.
- Fiscal analysis summary. See Const. art. 15, § 273(6); Miss. Code Ann. § 23-17-31(2).
- The chief legislative budget officer must prepare a fiscal analysis for each initiative and legislative alternative. See id. A summary of each analysis must appear on the ballot. See
- (When a legislative alternative is submitted) Two questions, laid out in a manner detailed in the state constitution. See Const. art. 15, § 273(8).
- First, voters must be asked whether to vote against both measures, or in favor of either measure (the initiative or legislative alternative). See id. If the majority of people voting on this first question vote against both measures, then both measures fail. See id.; Miss. Code Ann. § 23-17-37.
- Second, voters must be asked whether to approve of the initiative, or the legislative alternative. Const. art. 15, § 273(8); Miss. Code Ann. § 23-17-37. A measure is only approved if it receives the majority of votes on this question, as well as 40% of the total votes cast at the election. See id.
INFORMATION TO VOTERS
What information is provided to voters before the election, and how?
Publication
Under the Mississippi Constitution, the Secretary of State must provide public notice of an election at which a legislatively referred amendment will be submitted to voters, at least thirty days before such election. Miss. Const. art. 15, § 273(2).
In addition, the Secretary of State must have the full text of the proposed amendment published in newspapers in each county in the state at least two weeks before the election. Miss. Code Ann. § 7-3-39. This full text must also be posted prominently in all polling places. Id. § 23-15-369(1)(c).
When the initiative process was operable, several publications were required with respect to constitutional initiatives, as follows.
- Prior to circulation of petitions, the Secretary of State must publish in at least one state newspaper of general circulation the ballot title, plus a summary also drafted by the Attorney General during pre-circulation review. See id. § 23-17-11, –9. The publication must be made within ten days of the Attorney General filing the ballot title and summary with the Secretary of State. See id. § 23-17-11.
- The summary must not exceed 75 words. Miss. Code Ann. § 23-17-9. Like the ballot title, the summary must not intentionally be an argument nor be likely to create prejudice for or against the measure. See id. In addition to appearing in newspaper publications, the summary must also appear on the underlying petition. § –15.
- Once a week for three consecutive weeks immediately preceding the election, the Secretary of State must publish a voter information pamphlet in at least one newspaper of general circulation in each county. See Miss. Code Ann. § 23-17-45(1). Pamphlet details are described below.
- Additionally, for each initiative to be placed on the ballot, the Secretary of State must conduct at least one public hearing in each congressional district. Miss. Code Ann. § 23-17-45(2). Public notice must be provided at least 30 days before any such hearing.
Voter Information Pamphlet
- Mississippi law does not require a state voter information pamphlet for legislatively referred amendments.
- When the initiative process was operable, the Secretary of State was required to compile and publish a pamphlet to include the following information, for each initiative and legislative alternative. See Miss. Code Ann. § 23-17-45(1).
-
- Full text.
- Ballot title.
- Summary
- Arguments or explanations for and against the measure (300 words or less).
- For an initiative, the argument or explanation may be prepared by the sponsor; otherwise, it must be prepared by the Secretary of State.
- Fiscal analysis prepared by the chief legislative budget officer.
See id.
JUDICIAL REVIEW
When and how can the court step in?
Mississippi’s provisions governing legislatively referred amendments do not explicitly provide for judicial review of ballot language or related materials, but review may be available under other channels.
For constitutional initiatives, statutes provide that any person dissatisfied with the ballot title or summary formulated by the Attorney General may file a petition with the Circuit Court of the First Judicial District of Hinds County, listing their objections and requesting that the court amend the title or summary. See Miss. Code Ann. § 23-17-13. Such a petition must be filed within five days of the Secretary of State’s newspaper publication of the ballot title and summary. See id.; id. § –9. The court may hear arguments and must render a decision within ten days. See id. § –13. The decision of the court shall be final. Id.
Additionally, the state constitution provides, “[t]he sufficiency of petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the state, which shall have original and exclusive jurisdiction over all such cases.” Miss. Const. art. 15, § 273(9). Pursuant to statute, the Secretary of State shall refuse to file a petition if certain grounds for refusal exist. See Miss. Code Ann. § 23-17-23. Within ten days of such a refusal, the sponsor may bring an action before the Mississippi Supreme Court to compel filing. Id. § –25.
Notes
[1] The Butler v. Watson case primarily addressed Mississippi Constitution article 15, section 273(3), which provides:
The people reserve unto themselves the power to propose and enact constitutional amendments by initiative. An initiative to amend the Constitution may be proposed by a petition signed over a twelve-month period by qualified electors equal in number to at least twelve percent (12%) of the votes for all candidates for Governor in the last gubernatorial election. The signatures of the qualified electors from any congressional district shall not exceed one-fifth ( 1/5 ) of the total number of signatures required to qualify an initiative petition for placement upon the ballot. If an initiative petition contains signatures from a single congressional district which exceed one-fifth ( 1/5 ) of the total number of required signatures, the excess number of signatures from that congressional district shall not be considered by the Secretary of State in determining whether the petition qualifies for placement on the ballot.
Miss. Const. art. 15, § 273(3); see generally Butler v. Watson, 338 So. 3d 599 (Miss. 2021). The court found the reduction in number of congressional districts ‘broke’ section 273 such that it must be amended in order to function again. See id. at 603-04. Nevertheless, various other provisions—both constitutional and statutory— relating to the initiative process remain on the books and have been summarized herein.
[2] The state constitution says that the legislature shall provide by law the manner in which petitions shall be circulated, presented, and certified. Miss. Const. art. 15, § 273(12). Pursuant to statute, before an initiative petition can be circulated for signatures, the sponsor must file a copy of the initiative with the Secretary and State, which must also be reviewed by the Attorney General. See Miss. Code Ann. §§ 23-17-1, –3, –5. After circulation, the sponsor must have petition signatures certified by the circuit clerk of each county in which the petition was circulated before submitting the petition to the Secretary of State. See id. § –21.