[EL] Mississippi statewide initiative procedure is kaput

[Volokh, Eugene]

               I think the court did indeed conclude pretty much that (or of course until the constitution is amended to avoid the hardcoded 5).

               Eugene

From: Meyer, Carlin <Carlin.Meyer at nyls.edu>
Sent: Sunday, May 16, 2021 5:53 AM
To: Volokh, Eugene <VOLOKH at law.ucla.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Mississippi statewide initiative procedure is kaput

why wouldn't a court simply conclude that the constitution can't be amended by initiative until there's another district?  Not a happy conclusion, but....

​Carlin Meyer, Professor Emeritus & Attorney
New York Law School
carlin.meyer at nyls.edu<mailto:carlin.meyer at nyls.edu>
646-643-1225
Preferred pronouns: She/Her/Hers

________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Volokh, Eugene <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>>
Sent: Saturday, May 15, 2021 2:05 PM
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Mississippi statewide initiative procedure is kaput


                Yow!  I hadn’t heard of this before; as I understand it, the Mississippi Constitution provides, sec. 273(3):



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.



But in 2000, Mississippi lost one seat in the House, so there are now only four congressional districts, and obtaining the requisite votes is mathematically impossible.  See https://courts.ms.gov/Images/Opinions/CO154253.pdf<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fcourts.ms.gov%2FImages%2FOpinions%2FCO154253.pdf&data=04%7C01%7CCarlin.Meyer%40nyls.edu%7Ccd3ff7a791554c186b7508d917cc0757%7C45cfcfc7df844b9685bfb2c0c485fed6%7C0%7C1%7C637566987335103875%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=dw9rKega%2B%2BcVhMKdPxXtBPJnOXxUPPnd1CRn2NR37%2BY%3D&reserved=0> .  Am I understanding correctly?



                I had a follow-up question – even before 2000, when there were five districts, say that there were 873,764 votes for Governor (the total number in the 2019 election), so 12% would have been 104,851.68 (round it however you like).  One fifth of that would have been 20970.336.  So according to a literal reading of the provision, any signatures from 20,971 and up (which exceed one-fifth of the total number of required signatures) would be excluded, and at most 20,970 would be counted from each district, for a total of 104,850, which is not “equal in number to at least twelve percent (12%) of the votes for all candidates for Governor.”  I take it that no court would accept that, and would conclude that there’s enough wiggle room for rounding in the provision, right?  Is there some specific canon leading to that conclusion, or is it just a general application of the requirement to avoid absurdity?



                Eugene
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