JACKSON — One basic political concept that every American should know is the difference between a republic and a democracy.
A republic is a form of government in which people democratically elect representatives. The elected representatives then make laws.
A democracy is a form of government in which the people create the laws themselves in the form of initiatives, referendums and plebiscites.
A great example of this is the Electoral College, which selects the President of the United States. Hundreds of millions of people vote to give guidance to the Electoral College, but it is the members of the Electoral College who actually have the final say.
The United States and its member states are clearly republics with elected congressmen and state representatives. Nationally, there is no initiative process, save for constitutional amendments. But over the years, 24 states have adopted various forms of “initiatives” that allow the electorate to pass various laws bypassing the representative bodies.
Mississippi is one of the 24 states allowing for initiatives. Initiative 65, which authorized medical marijuana, was one such initiative. For years, our state Legislature voted down medical marijuana. Then last year, much to the surprise of many, 65.2 percent of the Mississippi electorate voted to legalize medical marijuana.
Mississippi’s initiative law allows the state Legislature to put a competing initiative proposal on the initiative ballot, and the state Legislature did so. But voters rejected the state’s version by a 74-to-26 margin. It was a huge slapdown of the Legislature by the Mississippi voters.
Mississippi’s initiative law applies only to amending the state constitution, not state statutes, so once adopted, the Legislature loses all power to modify it.
This was a big deal with Initiative 65 because it created one of the most deregulated medical marijuana structures in the country. Cities and counties were forbidden from creating special zoning laws for medical marijuana dispensaries. The state could not tax medical marijuana any more than the normal sales tax. Physicians were free to hand out medical marijuana cards for a wide range of “debilitating medical conditions.” The state could not limit the number of dispensaries or growers. It was just wide open. I was amazed.
I would joke to my friends that I had already figured out that my debilitating medical condition was going to be “chronic delusional disorder” because I was still convinced I would one day get rich and become a good golfer.
The insult to the Legislature was even worse because our existing initiative law, passed in 1992, already gave the Legislature a huge number of tools to control the initiative process. It was conventional wisdom that the Legislature had the ability to kill any initiative. Until Initiative 65.
But our initiative law had one flaw through no fault of its own. It required signatures from each of Mississippi’s five congressional districts. Only one problem, in 2003 Mississippi lost one of its congressional districts because of population declines.
Relying on rulings from the secretary of state and the attorney general, Initiative 65 collected the required number of signatures from each of the old five congressional districts, as though nothing had changed.
This gave Madison Mayor Mary Hawkins Butler an opening. Famous for her strict zoning controls, Hawkins Butler was upset that Initiative 65 would allow pot dispensaries all over her quaint, family-oriented suburban city. Add to that, the mayor is not a big fan of recreational drug use in the first place. She got the city of Madison to take the case to the state Supreme Court.
I was surprised by the 6-3 Supreme Court ruling rescinding Initiative 65 based on a technicality caused by federal redistricting — something over which Mississippi has no control.
One thing I’ve learned about court rulings, there are a million ways to legally justify whatever the court wants to do. In this case, the legal theory of strict originalism was used to trump the legal theory of legislative intent. One of the dissents called the ruling “absurd.”
The majority’s best argument was to blame the state Legislature for never fixing the technical problem. Lawmakers knew about the problem but tabled bill after bill to fix it. This inaction gave the Legislature an ultimate trump card of the initiative process. It worked.
A close study of history could have seen this coming. Mississippi is the only state that had an initiative process but got rid of it. In 1914, Mississippi voters approved an initiative process by a 2-to-1 vote.
But in 1922, the state Supreme Court invalidated the initiative process on a technicality. The Legislature refused to fix the technicality, and Mississippi had no initiative until 1992, when voters approved an initiative process by a 70% vote.
Now it’s back to the future again. Will it be another 70 years before we get a rectified initiative process back on the books?
Other questions remain. Out of 77 initiatives that have made it to the ballot since 1992, only two others have actually passed — voter identification and eminent domain protections for property owners. Presumably both of those will be invalidated if somebody sues.
So far the state leadership is clamoring for a new, better initiative law. We’ll see if that holds once that outrage over the court nullification dies down.
There are many pros and cons about initiatives. Some argue initiatives are the tool of rich special interest groups because only they have the money to gather the high number of required signatures. Others say initiatives are an excellent safety valve when representatives ignore the will of the people. I see both sides.
If we go get a new initiative law, we need to start over from scratch and do it right. First of all, there should be two types of initiatives: one for changing the state constitution and one for changing and creating state statutes. Constitutional initiatives should be reserved for broad concepts such as basic rights. It’s nuts to have a detailed medical marijuana law enshrined in our constitution.
Mississippi should look at how they do it in Colorado. Voters can create new state law through the initiative process without amending the state constitution. For the next five years, the state Legislature can amend the new initiative statute only with a two-thirds vote. That’s a good balance of power between the people and their representatives without mucking up a state constitution.
