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In Butler v. Watson,[1] the Mississippi Supreme Court confronted an anomaly in the state constitution’s provision for proposing and enacting amendments through citizen initiatives. Voters had used this mechanism the previous November to adopt a medical-marijuana amendment, but the court held that the anomaly amounted to a self-destruct mechanism. The initiative provision, proposed by the legislature and added to the constitution in 1992, only functions properly if Mississippi has five congressional districts. Section 273(3) of the state constitution requires, “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.”[2] Alas, Mississippi lost its fifth seat in the House following the 2000 census. In Butler, the court held 6-3 that the initiative process could not operate under these circumstances. “One-fifth” means one fifth, not a pro rata share,[3] and “any congressional district” means any congressional district today, not such a district back when Mississippi had five of them.[4] The three dissenters would have used the five old districts based on the 1990 census.[5]

Soon after the loss of the fifth House seat, some proposed fixing the § 273(3) anomaly, but the legislature left it in place. In 2011, Mississippi voters approved two citizen initiatives, one establishing a voter ID requirement[6] and another putting limits on eminent domain.[7] Prior to those votes, the Secretary of State asked the Attorney General about the § 273(3) issue and was told to count signatures using the old five 1990-census-based districts.[8] The same accommodation was used for the medical-marijuana initiative adopted in 2020. Shortly before the November vote, the mayor of the city of Madison and the city itself sued to stop the election under a provision giving the Mississippi Supreme Court original jurisdiction to assess the “sufficiency of petitions.”[9] While the court did not intervene in time to prevent the election from taking place, it later heard argument and then held in Butler that the proposal was improper: the medical-marijuana proposal “was placed on the ballot in violation of the Mississippi Constitution.”[10]

The majority and dissent each charged the other with reading “congressional district” implicitly to mean “current congressional district.”[11] This dispute turns on whether we imagine the term being used in the context of today or in the context of 1992. The majority read it in the context of 1992, distinguishing the use of “now existing” in another constitutional provision,[12] while the dissent would have imagined the use of the phrase today. Following the 2000 and 2010 censuses, the Mississippi legislature did not pass a redistricting bill; a federal court ended up drawing the four new district lines instead and redrawing them following the 2010 census.[13] The dissent suggested that this failure was an additional reason to read “congressional district” as limited to the post-1990-census lines drawn by the legislature.[14] The majority rejected this reading, however, on the ground that the legislature lacked the power to assign any other districts for § 273(3) purposes besides districts actually used to elect representatives.[15]

Butler is significant both because it finds the state’s initiative process inoperable and also because of its approach to interpretation. A muscular textualism is evident first in the majority’s hostility to purpose-based interpretation; the court’s refusal to bend “one-fifth” into “pro rata share” reflects adherence to the precise text of the Constitution even when its relatively clear presumed purposes are frustrated. Second, the court follows fact-dependent textually-expressed meaning rather than sticking with historically-confined applications. The applications of an abstract, non-time-dated term like “congressional district” must change with the relevant facts, rather than being frozen in amber at the time of a provision’s adoption.[16]

It is not clear what will happen to the two initiatives adopted in 2011. The legislature has itself passed legislation implementing the voter ID requirement, legislation that is presumably still effective even if it is no longer constitutionally required. The eminent domain rule forbidding the transfer of property within ten years of its acquisition by eminent domain would only be tested if the officials decided to take actions in the teeth that prohibition, which they have not done so far.[17] It is also not clear what will happen with the medical-marijuana issue itself; the governor has spoken of calling the legislature into session to pass a statute approximating what the voters approved in November.[18] Finally, an issue that the court did not address, but which it might clarify on rehearing, is the extent to which the voters’ approval of the marijuana initiative at the polls might have cured its improper proposal. In Federalist 40, James Madison said the Constitution would be legitimate even though it was proposed by those who went beyond their limited commissions to revise the Articles of Confederation. Even if proposal was improper, ratification would “blot out antecedent errors and irregularities.”[19] There are a few indications in some earlier Mississippi cases that approval by the voters can obviate improper proposal,[20] but the Court has not yet considered them.



[1] 2021 WL 1940821.

[2] MISS. CONST. § 273(3).

[3] Butler, 2021 WL 1940821 at *6.

[4] Id. at *8.

[5] Id. at *14 (Maxwell, J., dissenting); id. at 18 (Chamberlin, J., joined by Kitchens, J., and joined in part by Maxwell, J., dissenting).

[6] MISS. CONST. § 249A.

[7] MISS. CONST. § 17A.

[8] Re: Voter Initiative Law, Miss. Att’y Gen. Op., No. 2009-00001, 2009 WL 367638 (January 9, 2009). These five old congressional districts are still used to elect the ten judges on Mississippi’s intermediate Court of Appeals. Judicial elections are not subject to the one-person-one-vote rule of Reynolds v. Sims, 377 U.S. 533 (1964), and Wesberry v. Sanders, 376 U.S. 1 (1964). See Wells v. Edwards, 347 F. Supp. 453, 454 (M.D. La. 1972), summarily affirmed, 409 U.S. 1095 (1973).

[9] See MISS. CONST. § 273(9) (“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.”).

[10] Butler, 2021 WL 1940821 at *12.

[11] Id. at *8; id. at *18 (Chamberlin, J., dissenting).

[12] See MISS. CONST. § 213A (“member of such board from each congressional district of the state as now existing”). This is the same way that the U.S. Constitution uses the term “now existing”: as a means of referring to the time at which the Constitution was adopted, not a later time at which it was in effect. The power of “States now existing” to import enslaved people was guaranteed until 1808, but that did not prevent Congress from immediately banning importation into future states like Ohio, as it had done in the Northwest Ordinance. See U.S. CONST. art. I § 9 cl. 1.

[13] See Smith v. Clark, 189 F. Supp. 2d 548 (S.D. Miss. 2002); Branch v. Smith, 538 U.S. 254 (2003); Mauldin v. Branch, 866 So.2d 429 (Miss. 2003); Smith v. Hosemann, 852 F. Supp. 2d 757 (S.D. Miss. 2011).

[14] Butler, 2021 WL 1940821 at *14 (Maxwell, J., dissenting).

[15] Id. at *11.

[16] Compare Euclid v. Ambler Realty, 272 U.S. 365, 387 (1926) (“[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. . . . [A] degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles . . . ”).

[17] The ten-year eminent-domain rule amendment was challenged prior to its adoption at the polls as an improper addition to the Bill of Rights—something not allowed for initiatives under section 273(5)(a)—but the Mississippi Supreme Court said the dispute was not ripe prior to the election. Speed v. Hoseman, 68 So.3d 1278 (Miss. 2011). This constitutional issue has remained open since then because no such transfers have been attempted.

[18] See Gov. Tate Reeves Supports Special Session for Medical Marijuana, Daily Journal, June 15, 2021, available at https://www.djournal.com/news/state-news/gov-tate-reeves-supports-special-session-for-medical-marijuana/article_5cc940b6-d53f-5cc7-9dbc-96172b0fac89.html.

[19] THE FEDERALIST PAPERS 253 (Clinton Rossiter, ed., 1961) (Madison); see also AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 8 & 506 (2005) (citing similar arguments from James Wilson, William Davie, William Maclaine, Richard Dobbs Spaight, Charles Cotesworth Pinkney, and Edmund Pendleton).

[20] Judge Fisher’s separate opinion in the splintered 1856 decision of Green v. Weller, 32 Miss. 650 (1856) (an opinion printed in the appendix to 33 Miss.), would have held that even if the legislature had not used the proper denominator in proposing an amendment—two thirds of the entire legislature rather than two thirds of the whole Senate—adoption at the polls cured this problem. See also Ex Parte Wren, 63 Miss. 512, 537 (1886) (“Were the question before us it is not improbable that we should concur in the view of Judge Fisher, as reported in the appendix of 33 Miss. Reports.”); Hunt v. Wright, 11 So. 608, 610 (Miss. 1892) (violation of timing-of-revenue-bills rule in section 68 does not invalidate legislation); Lang v. Board of Supervisors, 75 So. 126, 128 (Miss. 1917) (violation of sufficient-title rule in section 71 does not invalidate legislation); In re Hooker, 87 So.3d 401, 414 (Miss. 2012) (violation of publication rule in section 124 does not invalidate pardon).