The Honorable Delbert Hosemann, 2009 WL 367638 (2009)

2009 WL 367638 (Miss.A.G.)

Office of the Attorney General

State of Mississippi
Opinion No. 2009-00001
January 9, 2009

Re: Voter initiative law

*1 The Honorable Delbert Hosemann

Secretary of State
State of Mississippi
P. O. Box 136
Jackson MS 39205-0136

Dear Secretary Hosemann:

Attorney General Hood has received your request for an official opinion and it has been assigned to me for research and
reply.

Questions Presented

Should the Secretary of State require that a minimum of 20% of the initiative petition signatures come from each of the five
“old” congressional districts, or should he require that 25% of the initiative petition signatures come from each of the four
“new” congressional districts?

Response

The Secretary of State should require that 20% of the signatures of an initiative petition be from each of the “old” five
congressional districts as they existed immediately prior to the adoption of the four current congressional districts.

Background

Your letter reads as follows:

I have received and forwarded to you two proposed initiative measures to amend the Mississippi Constitution of 1890. The
first proposed measure was filed with my office by W. O. “Bill” Luckett, Jr. and Rory Reardon on November 21, 2008, and
forwarded to your office pursuant to Mississippi Code Section 23-17-5 on November 25, 2008. I have received a second
proposed initiative measure filed by P. Leslie Riley Jr. On December 3, 2008. This second proposed measure was forwarded
to you on December 4, 2008.

Pursuant to section 273 of the Mississippi Constitution of 1890, an amendment to the Constitution may be proposed by the
qualified electors of the State of Mississippi by petition. The number of signatures required from qualified electors is “at least
twelve percent (12%) of the votes for all candidates for Governor in the last gubernatorial election.” The same section places
a limit on the number of qualified electors from any congressional district and request an amendment to the Mississippi
Constitution of 1890. “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 on the ballot.

Citizens of our State have the right to amend their Constitution when a sufficient number of citizens desire to do so. The
current initiative procedure was proposed by Senate Concurrent Resolution 516 in 1992, when Mississippi had five
congressional districts. At that time Mississippi had not had a change in apportionment resulting in a change in the number of
United States Congressmen since 1963. The concurrent resolution was written to require any future proposal for amending
the Mississippi Constitution to have broadly-based support among the existing congressional districts.

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The Honorable Delbert Hosemann, 2009 WL 367638 (2009)

I fully expect that one or both of these proposed initiatives will receive petition support with a sufficient number of
signatures. Further, I would like to give the proponents correct information as they start this process. Please give me your
official opinion, if I am presented with a petition that contains signatures equal or greater to twelve percent of the votes for
Governor in the 2007 election, should I require twenty percent of the signatures to come from each of the five “old”
congressional districts or twenty-five percent of the signatures to come from each of the four “new” congressional districts? I
appreciate your early consideration of this matter.

Applicable law

*2 Section 273 of the Mississippi Constitution of 1890 reads in pertinent part as follows:
(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.

***

(12) The Legislature shall provide by law the manner in which initiative petitions shall be circulated, presented and
certified…

***

(13) The Legislature may enact laws to carry out the provisions of this section but shall in no way restrict or impair the
provisions of this section or the powers herein reserved to the people.

Several statutory provisions of the initiative process are applicable, including Miss. Code Ann. Section 23-17-21 (1972),
which provides in pertinent part:
Before a person may file a petition with the Secretary of State, the petition must be certified by the circuit clerk of each
county in which the petition was circulated. The circuit clerk shall certify the signatures of qualified electors of that county
and shall state the total number of qualified electors signing the petition in that county. The circuit clerk shall verify the name
of each qualified elector signing on each petition… When the person proposing any initiative measure has secured upon the
petition a number of signatures of qualified electors equal to or exceeding the minimum number required by Section 273(3)
of the Mississippi Constitution of 1890 for the proposed measure, and such signatures have been certified by the circuit clerks
of the various counties, he may submit the petition to the Secretary of State for filing…

Miss. Code Ann. Section 23-17-23 (1972) provides in pertinent part:

The Secretary of State shall refuse to file any initiative petition being submitted upon any of the following grounds:

***

(b) That the petition clearly bears insufficient signatures;

***

Analysis and Conclusion

The general purpose of geographic distribution requirements for the signatures appearing on initiative petitions is to help
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The Honorable Delbert Hosemann, 2009 WL 367638 (2009)

ensure that an initiative has broad support throughout the state and to help assure that the initiative process is not used by
citizens of one part of the state to the detriment of those in another.

*3 In the context of appointments to boards and commissions, this office has previously opined that statutory provisions
requiring board member appointments from congressional districts, and where the statute is otherwise silent, requires that the
residence of appointees be residents of congressional districts under “the last five-district plan which was in effect.” See MS
AG Op., Canon (January 16, 2003), as well as MS AG Op., Neelley (May 20, 1998).

It is likewise our opinion that the geographic distribution requirement of Section 273 requires that not more than 20% of the
total required number of initiative petition signatures must come from the last five-district congressional district plan which
was is effect prior to the adoption of the current four-district plan. It would be mathematically impossible to satisfy the
requirements of Section 273 using just four districts. We note that at least one initiative sponsor has stated their intention to
gather sufficient signatures to satisfy the 20%/five-district threshold as well as the 25%/four-district threshold.

We are aware of the difficulties circuit clerks and their staffs may encounter when attempting to verify the congressional
district under a previous redistricting plan of large numbers of initiative petition signers. One remedy to this problem would
be to amend Section 273 to reflect four congressional districts.

Please let me know if you would like to discuss this matter or if I can be of further assistance.
Sincerely yours,

Jim Hood
Attorney General
By: Reese Partridge
Assistant Attorney General

2009 WL 367638 (Miss.A.G.)

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