In the Supreme Court of Mississippi No. 2020-Ia-01199-Sct in Re Initiative
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IN THE SUPREME COURT OF MISSISSIPPI NO. 2020-IA-01199-SCT IN RE INITIATIVE MEASURE NO. 65: MAYOR MARY HAWKINS BUTLER, IN HER INDIVIDUAL AND OFFICIAL CAPACITIES AND THE CITY OF MADISON v. MICHAEL WATSON, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE FOR THE STATE OF MISSISSIPPI ATTORNEYS FOR PETITIONERS: KAYTIE M. PICKETT ADAM STONE ANDREW S. HARRIS CHELSEA H. BRANNON ATTORNEY FOR RESPONDENT: OFFICE OF THE ATTORNEY GENERAL BY: JUSTIN L. MATHENY NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: GRANTED - 05/14/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. COLEMAN, JUSTICE, FOR THE COURT: ¶1. In article 15, section 273(3), of our State’s Constitution of 1890, “The people reserve unto themselves the power to propose and enact constitutional amendments by initiative.” So important did the drafters of section 273 consider the right of the people to amend their constitution to be that, in section 273(13), the Legislature is forbidden from in any way restricting or impairing “the provisions of this section or the powers herein reserved to the people.” ¶2. The people did not, however, reserve the right unfettered by constitutional prerequisites that must be met before proposed amendments could be included on the ballot. An initiative sponsor must collect a number of signatures equal to twelve percent of all votes cast for Governor in the preceding gubernatorial election. Miss. Const. art. 15, § 273(3). At issue today is the additional requirement that 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.” Id. Section 273 mandates that any signatures from a given congressional district that exceed twenty percent of the total number of required signatures “shall not be considered” when making the determination that the proposed amendment may be placed on the ballot. Id. ¶3. On November 3, 2020, a strong, if not overwhelming, majority of the voters of Mississippi approved Initiative 65, which establishes a legal medical-marijuana program.1 In the case sub judice, the Petitioners challenge the Secretary of State’s approval of the initiative for inclusion on the ballot by advancing a straightforward argument. Petitioners point out that Mississippi now has four, not five, congressional districts. They further point out that four (the number of districts) multiplied by twenty (the maximum percentage of signatures that may come from any one congressional district) equals only eighty. Therefore, Petitioners assert, it would have been impossible for the petition seeking to place Initiative 1 The text of the initiative and the Attorney General’s letter summarizing it are attached as Appendixes. 2 65 on the ballot to be properly certified as meeting the section 273 prerequisites by the Secretary of State. As the petition was certified in error, the Petitioners contend that all subsequent actions are void. ¶4. The Mississippi Constitution of 1890 provides two vehicles for amendment. In addition to the ballot-initiative process at issue today, the Legislature may propose amendments that are then voted upon by the qualified electors of the State. Miss. Const. art. 15, § 273(2). Nowhere therein does the Constitution allow amendment by the Supreme Court. See McNeal v. State, 658 So. 2d 1345, 1350 (Miss. 1995) (“[T]he Mississippi Constitution cannot be amended by either case law or rules of court.”) The Court has written, [The Constitution] should not be changed, 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. 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. State v. Hall, 187 So. 2d 861, 863 (Miss. 1966). Accordingly, today’s question is simple in the asking, if not in the answering. We must determine whether, as argued by Petitioners, the reduction in Mississippi’s congressional districts from five to four broke section 273 such that it must be amended to function again, or whether, as the Secretary of State contends, it continues to function pursuant to the five congressional districts that existed at the time of its enactment. ¶5. Unlike the other two branches of government, the courts may not act proactively to address problems such as the one here. The Mississippi Supreme Court only has jurisdiction, or power, “as properly belongs to a court of appeals and shall exercise no jurisdiction on 3 matters other than those specifically provided by this Constitution or by general law.” Miss. Const. art. 6, § 146. Article 15, section 273(9), specifically vests us with “original and exclusive jurisdiction” over all cases in which we are called upon to review the Secretary of State’s approval of a ballot-initiative petition. Now, more than twenty years after the census that resulted in the problematic reduction on our congressional representation, after several ballot initiatives have been attempted both successfully and unsuccessfully, and after several unsuccessful attempts in the Legislature to address the problem, we find ourselves presented with the question squarely before us and nowhere to turn but to its answer. “It is our duty to interpret our Constitution when its meaning is put at issue.” Reeves v. Gunn, 307 So. 3d 436, 437 (¶ 2) (Miss. 2020) (citing Alexander v. State ex rel. Allain, 441 So. 2d 1329, 1333 (Miss. 1983), overruled on other grounds by 5K Farms, Inc. v. Miss. Dep’t of Revenue, 94 So. 3d 221 (Miss. 2012)). “We will not shirk this duty.” Id. ¶6. Remaining mindful of both the November 3, 2020 election results and the clear language in section 273 seeking to preserve the right of the people to enact changes to their Constitution, we nonetheless must hold that the text of section 273 fails to account for the possibility that has become reality in Mississippi, i.e., that our representation in the United States House of Representatives and corresponding congressional districts would be reduced. As more fully set forth below, the intent evidenced by the text was to tie the twenty percent cap to Mississippi’s congressional districts, of which there are now four. In other words, the loss of congressional representation did, indeed, break section 273 so that, absent amendment, it no longer functions. 4 ¶7. Justice Chamberlin cites Myers v. City of McComb, for the proposition that, in recognizing that section 273 can no longer function as the people designed it, we have “destroyed th[e] presumption” that the Constitution can order human affairs despite the occurrence of events unforeseen by its drafters. Chamberlin Diss. Op. ¶ 62 (citing Myers v. City of McComb, 943 So. 2d 1, 7 (¶ 22) (Miss. 2006)). Justice Maxwell also writes that we conclude that the reduction in representation unintentionally stopped the ballot-initiative process from working. Maxwell Diss. Op. ¶ 51. We can have no idea what the drafters of section 273 did or did not foresee. It is wholly within the realm of possibility that the drafters foresaw or even hoped for a drop in congressional representation that would render the ballot-initiative process unworkable. The only evidence of the intent of the drafters that passed the amendment process is the intent found in the text of section 273 itself, and, as more fully developed below, that text clearly evidences an intent to cap the signatures at twenty percent of qualified electors of a single congressional district. BACKGROUND ¶8. On July 30, 2018, Ashley Durval filed a petition for an initiative measure, enrolled as Initiative Measure 65 by the office of the former Secretary of State Delbert Hosemann. On August 7, 2018, the Attorney General’s Office acknowledged receipt of the petition and certified that it had reviewed the petition. A week later, the Attorney General’s Office sent the ballot title and a seventy-five-word ballot summary of the ten-page measure to the then- Secretary of State. According to the Secretary of State’s brief, the initiative supporters 5 completed and submitted sufficient signatures complying with the constitutional requirements to the Secretary of State’s Office on September 4, 2019. ¶9. Sometime in January of 2020, the Secretary of State’s Office delivered the initiative measure to the Legislature. The Legislature proposed a legislative alternative to Initiative 65. Both were placed on the ballot approved by the State Board of Election Commissioners, composed of the Governor, the Attorney General, and the Secretary of State in September of 2020. On October 26, 2020, the Petitioners filed an Emergency Petition before the Court seeking review of the sufficiency of the petition for Initiative 65. ANALYSIS I. The Mississippi Supreme Court has original and exclusive jurisdiction over the Petitioners’ claims. ¶10. Article 15, section 273(9), reads, “The 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.” Pursuant to section 273(9), and section 273(9) alone, of the possible sources of jurisdiction raised by the Petitioners, the Court has jurisdiction over the Petitioners’ challenge to the sufficiency of the petition that resulted in Initiative 65 being placed on the ballot. ¶11. The Court does not have jurisdiction to review, affirm, or overturn the “will of the people” as evidenced by the results on November 3, 2020. The November 2020 results are not before us. The only matter subject to the Court’s review today is the decision of the Secretary of State finding that the Initiative 65 petition was sufficient to be placed on the ballot.