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.

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¶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.

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II. The Petitioners have standing.

¶12. Mayor Mary Hawkins Butler of Madison, Mississippi, filed the instant petition in her

individual and her official capacities. The City of Madison joined her in filing the petition.

Standing is a jurisdictional issue, City of Madison v. Bryan, 763 So. 2d 162, 166 (Miss.

2000); Frisby v. City of Gulfport (In re City of Biloxi), 113 So. 3d 565, 570 (Miss. 2013),

and therefore addresses the fundamental question of the power of courts to act.

[O]ur view is that the issue of “standing” is a jurisdictional question which can
and should be raised by us on our own motion-this is especially true where, as
here, a constitutional interpretation is sought. To conclude otherwise would
permit the “standing” issue to be resolved with the accompanying possibility
that it might be determined adversely to the complainants, thereby leaving this
Court in the awkward posture of having interpreted the constitution for
complainants who had no legal right to invoke the jurisdiction of the Court.

Williams v. Stevens, 390 So. 2d 1012, 1014 (Miss. 1980). “[S]tanding must exist when

litigation is commenced and must continue through all subsequent stages of litigation, or the

case will become moot.” The Hotboxxx, LLC v. City of Gulport, 154 So. 3d 21, 28 (¶ 24)

(Miss. 2015) (alteration in original) (quoting In re City of Biloxi, 113 So. 3d at 572 (¶ 20)).

Before proceeding, we must determine that the petitioners have standing to ask the Court for

redress.

¶13. It is worth reiterating that the Court recently abandoned the “colorable interest”

standard for establishing standing. Reeves, 307 So. 3d at 438-439 (¶ 11) (internal quotation

marks omitted) (quoting Harrison Cnty. v. City of Gulfport (In re City of Gulfport), 557 So.

2d 780 (Miss. 1990)). However, “the traditional articulation of ‘adverse impact’ to describe

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when a party can assert standing to bring a suit” survives. Id. (quoting In re City of

Gulfport, 557 So. 2d at 782). We have described our general law on standing as follows:

Our general standing requirement is important to our review of standing issues

because it appropriately focuses judicial review on a plaintiff’s legal interest
and a defendant’s legal duty. However, it must be recognized that different
standing requirements are accorded to different areas of the law, and an
individual’s legal interest or entitlement to assert a claim against a defendant
must be grounded in some legal right recognized by law, whether by statute or
by common law. Quite simply, the issue adjudicated in a standing case is
whether the particular plaintiff had a right to judicial enforcement of a legal
duty of the defendant or, as stated in American Book Co. v. Vandiver, 181
Miss. 518, 178 So. 598 (1938), whether a party plaintiff in an action for legal
relief can show in himself a present, existent actionable title or interest, and
demonstrate that this right was complete at the time of the institution of the
action. Id. at 599. “Such is the general rule.” Id.

City of Picayune v. S. Reg’l Corp., 916 So. 2d 510, 526 (¶ 40) (Miss. 2005).

¶14. The Court settled the issue of Butler’s standing as in individual decades ago. Pursuant

to Power v. Robertson, 130 Miss. 188, 93 So. 769, 773 (1922), “any qualified elector has a

right to question the sufficiency and validity of the petition.” The Secretary of State accepts

that Butler has standing in her individual capacity.

¶15. The City of Madison argues that it “is likely to experience an adverse effect different

from any adverse effect suffered by the general public.” The City contends that its zoning

authority will be adversely affected by Initiative 65. We agree that the adverse impact

alleged by the City is different from that likely to be suffered by the general public, a

requirement of adverse-impact standing. Kinney v. Catholic Diocese of Biloxi, Inc., 142 So.

3d 407, 413 (¶ 14) (Miss. 2014). The Secretary of State argues that the City lacks standing

because it does not share in the same procedural injury, i.e., the allegedly improperly certified

8
petition, that gives rise to voter standing. However, the Secretary of State does not address

the injury alleged by the City: the curbing of its zoning authority. Because the City alleges

a present, actionable interest, i.e., zoning authority, and an adverse effect different from that

suffered by the general public from the implementation of Initiative 65, which could be

remedied by the Court, we hold it, too, has standing.

III. The equitable doctrine of laches does not apply.

¶16. The Secretary of State raises the doctrine of laches, claiming it bars Butler’s claims.

Laches is defined as “[u]nreasonable delay in pursuing a right or claim—almost always an

equitable one—in a way that prejudices the party against whom relief is sought.” Laches,

Black’s Law Dictionary (11th ed. 2019). As such, we have said that the doctrine applies to

bar a suit when “the plaintiff’s unreasonable delay ‘results in injustice or disadvantage to

another.’” Trigg v. Farese, 266 So. 3d 611, 626 (¶ 45) (Miss. 2018) (quoting Bolden v.

Gatewood, 250 Miss. 93, 119, 164 So. 2d 721, 732 (1964)).

¶17. “Laches, in legal significance, is not mere delay, but delay that works a disadvantage

to another.” Comans v. Tapley, 101 Miss. 203, 57 So. 567, 573 (1911) (internal quotation

mark omitted) (quoting Chase et al. v. Chase et al., 37 A. 804, 805 (R.I. 1897)). It is

enforced when a party delays asserting his rights until “the condition of the other party has,

in good faith, become so changed that he cannot be restored to his former state[.]” Id.

(quoting Chase, 37 A. at 805). The Secretary of State offers two arguments regarding

disadvantage, one related to the public and the other related to his office.

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¶18. The Secretary of State has failed to identify in the record any factual support for his

laches argument. Regardless, from the facts provided by Butler, which the Secretary of State

universally accepts, Butler acted within a reasonable time to file suit. Based on what the

Court has been provided, the ballot was only finalized at some time in September when the

State Board of Election Commissioners met. Within sixty days of that decision, Butler filed

suit.

¶19. The Secretary of State’s arguments that he and the public have been legally

disadvantaged fail. Laches is an equitable doctrine preventing inequitable assertion of rights

after an unreasonable delay. Evanovich v. Hutto, 204 So. 2d 477, 479 (Miss. 1967) (citing

Comans, 57 So. at 567). The argument lacks grounding in republican and democratic

principles. Mississippi’s government can only validly act in ways in which it has been given

power to act by the people of Mississippi. Miss. Const. art. 3, §§ 5–6. Regardless of an

erroneous action taken by her government, the state of Mississippi persists in the organic

state in which her citizens have formed her. Id. Accordingly, it is in our State’s interest to

have erroneous and void actions declared so. See generally Power, 93 So. 769 (holding that

a purported constitutional amendment was improperly added to our Constitution).

¶20. The Secretary of State’s argument that his office has been disadvantaged by the

Petitioners’ seeking review is likewise without merit. The litigation is brought pursuant to

a specific constitutional right to test the sufficiency of the petition. The Secretary of State

has no vested interest beyond the constitutional conduct of his office. In short, holding that

the Secretary of State properly passed on the sufficiency of the petition or improperly passed

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on the sufficiency of the petition does not change the condition of the Secretary of State’s

office whatsoever. For the foregoing reasons, we find the Secretary of State’s laches

arguments to be without merit.

IV. The reduction in Mississippi’s congressional representation renders article 15,

section 273(3), unworkable and inoperable on its face.

¶21. When faced with a question regarding interpretation of our Constitution, the Court

begins by examining the plain text of our Constitution. The Court “must enforce the articles

of the Constitution as written.” Pro-Choice Miss. v. Fordice, 716 So. 2d 645, 652 (Miss.

1998). We enforce the “plain language” of the Constitution. Thompson v. Att’y Gen. of

Miss., 227 So. 3d 1037, 1041 (¶ 11) (Miss. 2017) (internal quotation mark omitted) (quoting

Johnson v. Sysco Food Servs., 86 So. 3d 242, 244 (¶ 3) (Miss. 2012)).

¶22. When a court is entreated to interpret the terms of a constitution, a court ought to

“bow with respectful submission to its provisions[,]” Cohens v. Virginia, 19 U.S. 264, 377,

(1821), not “take liberties” with its text, National Mutual Insurance Co. v. Tidewater

Transfer Co., 337 U.S. 582, 647 (1949) (Frankfurter, J., dissenting). Our Constitution’s

plain language is to be given its “usual and popular signification and meaning[.]” Town of

Sumner v. Ill. Cent. R.R. Co., 236 Miss. 342, 111 So. 2d 230, 233 (1959) (quoting State v.

Mobile, J. & K.C.R. Co., 86 Miss. 172, 38 So. 732, 735 (1905)). If that meaning lacks

ambiguity, then there is “no reason for legislative or judicial construction.” Dunn v. Yager,

58 So. 3d 1171, 1189 (¶ 46) (Miss. 2011) (internal quotation mark omitted) (quoting Ex

parte Dennis, 334 So. 2d 369, 373 (Miss. 1976)).

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¶23. Article 15, section 273(3), of the Mississippi Constitution of 1890 provides as

follows:

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.

Before Mississippi lost a congressional seat following the 2000 census, the above-quoted

provision worked well. The effect of the twenty percent cap, tied to congressional districts,

was that no more—and no less—than twenty percent of the total number of required

signatures must come from each congressional district. The system guaranteed that each

congressional district would be equally a part of the process.

¶24. Mississippi’s number of representatives did not remain stagnant or increase; it

decreased to four. Mauldin v. Branch, 866 So. 2d 429, 431 (¶ 3) (Miss. 2003).

Notwithstanding several furtive fits and starts and a 2009 opinion from the Mississippi

Attorney General recognizing and suggesting a remedy for the issue before us today,

Mississippi Attorney General Opinion, No. 2009-00001, 2009 WL 367638, Hosemann, at

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*1 (Jan. 9, 2009), the Legislature never made any serious attempt to amend section 273 to

conform to the new reality.2

¶25. In the tension created by the decrease in representatives and the unchanged text of

section 273(3) lies the Petitioners’ argument. To be sure, it is not novel. In the

aforementioned Attorney General’s opinion, and at the request of then-Secretary of State

Hosemann, the Attorney General’s Office wrote as follows:

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 [sic]
effect prior to the adoption of the current four-district plan.[3] It would be
mathematically impossible to satisfy the requirements of Section 273 using just
four districts.

Miss. Att’y Gen. Op., No. 2009-00001, 2009 WL 367638, Hosemann, at *3 (Jan. 9, 2009)

(emphasis added). The Petitioners contend that, indeed, the Secretary of State’s approval of

the Initiative 65 ballot measure was in error because, with four congressional districts, it is

impossible that the Secretary of State followed the Constitutional directive to disregard

signatures of qualified electors in excess of twenty percent of the total from any one district.

In other words, twenty multiplied by four equals only eighty.

2
From 2003 to 2015, at least six attempts were made by individual legislators to
amend section 273 to reflect the new reality of four congressional district. None made it out
of committee.
3
We note here that the state of Mississippi has not adopted a congressional districting
plan since 1991. It has failed, over the last twenty years, to account for the loss of a
congressional district and has never adopted a four district plan. The present four-district
plan was adopted by a three-judge panel of the federal United States District Court for the
Southern District of Mississippi when the Legislature failed to act.

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 A. The common and constitutional meanings of “congressional
district” support the Petitioners’ position.

¶26. No party disputes the fact that, in elections for the United States House of

Representatives, Mississippians now go to the polls in four distinct congressional districts

and vote to send four representatives to Washington, D.C., to represent them. It is important

to note that the four districts being used were not created by any state actor. Despite the clear

statutory directive to do so found in Mississippi Code Section 5-3-123, no standing joint

congressional redistricting committee composed of members of the Mississippi House and

Senate has, to date, drawn new congressional districts. See Miss. Code Ann. §§ 5-3-121, -

123 (Rev. 2019). Mississippians elect their four representatives from districts drawn by

federal courts. See Branch v. Smith, 538 U.S. 254 (2003); Mauldin, 866 So. 2d at 431 (¶

3).

¶27. Petitioners argue, and we agree, that the plain language of section 273 ties the

congressional districts mentioned therein to the actual, existing congressional districts.

Again, we enforce the “plain language” of the Constitution. Thompson, 227 So. 3d at 1041

(¶ 11) (internal quotation mark omitted) (quoting Johnson, 86 So. 3d at 244 (¶ 3)). “The

construction of a constitutional section is of course ascertained from the plain meaning of the

words and terms used within it.” Ex parte Dennis, 334 So. 2d at 373 (citing State Teachers’

College v. Morris, 144 So. 374 (Miss. 1932)).

¶28. When searching for a popular or usual meaning of a term, the Court often turns to

dictionaries for guidance. See Watson v. Oppenheim, 301 So. 3d 37, 42 (Miss. 2020) (citing

Lawson v. Honeywell Int’l, Inc., 75 So. 3d 1024, 1028 (Miss. 2011)). Our goal is to analyze

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and understand the text as an ordinary speaker would understand the language; in short, we

analyze the text of our Constitution as the people who ratified it and are governed by it would

understand it. Amy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev.

2193, 2194 (2017). “Congressional district” is defined as “a territorial division of a state

from which a member of the U.S. House of Representatives is elected.” Congressional

District, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003).

¶29. The definition itself is simple, is unambiguous, and is not open to multiple

interpretations. A congressional district is a division of a state that elects a member of the

United States House of Representatives. The definition identifies two characteristics: (1) it

defines geography of a state, and (2) it refers to the present-tense act of electing

congressional representatives. An area can be called a congressional district if it is a

geographic division of a state that now elects a representative. It follows that some other

defined geographical area, such as a former congressional district, that does not elect a

member of the House of Representatives does not meet the definition.

¶30. There are only four areas in the state that meet the definition because Mississippi only

elects four congressional representatives. The above-described incontrovertible reality has

existed since 2002. The number of congressional districts is not directly decided by any of

the states of our nation though but rather through the application of the Permanent

Reapportionment Act of 1929. 2 U.S.C. § 2a. In 2000, the United States House of

Representatives reallocated the statutorily limited 435 seats; Mississippi’s allocation was

decreased from five seats to four seats. As more fully discussed below, the federal injunction

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decried by Justice Maxwell in his dissent came after Mississippi’s reduction in congressional

representation.

¶31. We are persuaded that, when section 273 ties the twenty percent cap to qualified

electors in a congressional district, it necessarily means the congressional districts as they

exist at the time a petition is presented for approval as opposed to the congressional districts

as they existed in 1992. The Secretary of State argues that the Petitioners are asking the

Court to insert the word “current” before the words “congressional district” in section 273(3).

Petitioners counter that the ordinary meaning of the phrase includes the understanding that

they change over time. Petitioners point to the repeated use of “any county” in the

Mississippi Constitution of 1890, see, e.g., Miss. Const. art 5, §§ 135, 139, 140; art. 6, § 171;

art. 8, § 206; art. 14, § 260. They point out that Mississippi county lines have changed, and

new counties have been created since 1890. We agree that no one interpreting the pertinent

sections would interpret them to mean the counties as they existed in 1890. It is the nature

of counties and county lines that they can change over time.

¶32. Given the nature of proportional representation that exists in the United States House

of Representatives, we find the changing nature of congressional districts is even more a part

of the meaning—in both common understanding and law—of the phrase. Article I, section

2, of the United States Constitution, later modified by the Fourteenth Amendment,

establishes the apportionment of representation in the United States House of

Representatives. It provides for the census, which is to be taken every ten years, and based

upon the results of which each state was to be apportioned representation in the House. U.S.

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Const. art. II, § 2. Since the beginning of our constitutional republic, the very concept of

proportional representation includes change over time. “Representatives shall be apportioned

among the several States according to their respective numbers, counting the whole number

of persons in each State . . . .” U.S. Const. amend. XIV, § 2. The Fourteenth Amendment

was ratified in 1868. Id. As shown by the Constitution as a whole, to contend that the

Fourteenth Amendment froze representation in place as of 1868 would strain the bounds of

credulity and defy the common and legal understandings of how proportional representation

works.

¶33. Mississippi law similarly acknowledges the fluid nature of congressional

representation. Mississippi Code Section 5-3-121 (Rev. 2019) mandates the creation of a

joint congressional redistricting committee that is charged by law to “draw a plan to

redistrict, according to constitutional standards, the United States congressional districts for

the state of Mississippi” every ten years following census results. Miss. Code Ann. § 5-3-123

(Rev. 2019). In the event of change of representation in Congress, Mississippi Code Section

23-15-1039 (Rev. 2018) provides a stopgap procedure for electing people to Congress until

redistricting occurs. When article 8, section 213A, of the Mississippi Constitution was

adopted, the drafters acknowledged the fluid nature of districts by including the words “now

existing.” Mississippi Constitution article 8, section 213A, provided, when it was adopted,

“There shall be appointed one (1) member of such board from each congressional district of

the state as now existing . . . .” (Emphasis added.) It is telling that the drafters of the original

version of our section 213A acknowledged the fluid nature of congressional districts and the

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need to explicitly provide that, at the time, the section 213A districts would remain static

contrary to that nature.

¶34. Pursuant to the foregoing reasoning, we reject the Secretary of State’s argument that

agreeing with the Petitioners requires the Court to insert the word “current” into the text of

section 273, and we reject Justice Chamberlin’s argument that section 273(3) mandates by

its own terms alone the use of the 1992 congressional districts. The changing, evolving

nature of proportional representation is simply too much a part of the common and legal

understandings of the phrase “congressional district.” Given the acknowledgment elsewhere

in Mississippi law that representation and districts change over time combined with the

origins of proportional representation in the United States, we would be in far more danger

of editing the text of section 273 if, as urged by Justice Chamberlin, we held that it means

the congressional districts as they existed in 1992.

¶35. Justice Chamberlin accuses us of disabling the Constitution, the very thing we all

agree we have the duty of interpreting. Chamberlin Diss. Op. ¶ 63. We do no such thing.

Drafted as it is, section 273(3) disables itself in being unworkable with fewer than five

congressional districts in Mississippi. It is the dissents, rather, that would disable part of the

constitution by amending it so that the twenty percent cap requirement is tied not to

congressional districts but to former congressional districts. The “object to be desired,”

Chamberlin Diss. Op. ¶ 74 (internal quotation marks omitted) (quoting Myers, 943 So. 2d

at 7), as we strive to interpret Section 273, is a constitutional ballot-initiative amendment

process that contains prerequisites with which petitions must comply but with which

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compliance is no longer possible. The people of Mississippi, when they ratified the ballot-

initiative process, ratified all of it including the twenty percent cap. No interpretation of the

phrase “congressional district” allows it to include a geographical area that exists for reasons

other than electing representatives to Congress, nor is an interpretation of a twenty percent

cap per congressional district in a four-district Mississippi expansive enough to allow section

273(3) to continue functioning absent amendment. Chamberlin Diss. Op. ¶ 70.

B. The Secretary of State’s proposed interpretation of section 273

would render impossible the requirement that signatures come
from qualified electors of a particular congressional district.

¶36. Pursuant to the foregoing reasoning, we do not consider the use of the phrase

“congressional district” in section 273 to be ambiguous. Accordingly, we would not

normally resort to canons of interpretation. Dunn, 58 So. 3d at 1189 (¶ 46) (internal

quotation mark omitted) (quoting Ex parte Dennis, 334 So. 2d at 373). However, it is worth

noting that if there were ambiguity, then interpreting it as urged by the Secretary of State

would prohibit an interpretation that harmonizes the whole of section 273. “[C]onstitutional

provisions should be read so that each is given maximum effect and a meaning in harmony

with that of each other.” Dye v. State ex rel. Hale, 507 So. 2d 332, 342 (Miss. 1987) (citing

St. Louis & San Francisco Ry. Co. v. Benton Cnty., 96 So. 689 (Miss. 1923)). Pursuant to

section 273(3), “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.” According to the quoted language, the signatures in

19
support of a ballot initiative must come from qualified electors of the district in which they

are counted.

¶37. Petitioners contend, and we agree, that electors cannot aver to be qualified electors

of a nonexistent congressional district. According to a statute that regulates the qualified-

elector requirement, signers of a ballot-initiative petition must aver that they are qualified

electors of a congressional district. Miss. Code Ann. § 23-17-19 (Rev. 2018). Petitioners

point to signatories from Simpson County to make their point. In an exemplar petition page,

signers from Simpson County left their congressional district number blank. Petitioners also

point out that in 2000, Simpson County would have been in the Fourth Congressional District

but that it is now in the Third. Asking Simpson County signers to aver that they remain

electors in the Fourth Congressional District would be asking them to aver to, at best, an

inaccuracy. Even more damaging to the Secretary of State’s interpretation are electors who

live in areas of the state that, from 1992-2002, would have been qualified electors of the old

Fifth Congressional District. None of those qualified electors vote in the Fifth Congressional

District anymore because it does not exist. They cannot truthfully aver to be qualified

electors of an extinct congressional district.

¶38. The preceding analysis illustrates the disharmony that results in interpreting the phrase

“congressional districts” used in section 273(3) to have any other meaning than the actual

congressional district used by Mississippians to select their representatives in Congress. If

the Court is to avoid interpretations that fail to harmonize and give effect to the whole

provision, then we must reject the Secretary of State’s interpretation.

20
¶39. In resorting to Mississippi Code Section 23-15-1037 (Rev. 2018) in the face of the

qualified-elector problem, Justice Chamberlin undermines his own argument that section

273(3) commands the use of the 1992 congressional districts. Justice Chamberlin takes the

position that one’s status as a qualified elector is conveyed not by what congressional district

he lives in for purposes of selecting a representative, but as defined by Section 23-15-

1037—even if Section 23-15-1037 ceases to be the law. Chamberlin Diss. Op. ¶ 75.

According to Justice Chamberlin, as long as Section 23-15-1037 continues to define

congressional districts—or even districts formerly known as congressional—in Mississippi

signatories to a ballot-initiative petition may continue to faithfully aver membership on one

of the 1992 congressional districts. Chamberlin Diss. Op. ¶ 75. We cannot accept his

invitation that would allow the substitution of former, no-longer-existing congressional

districts when nothing in the wording of section 273(3) calls for using anything other than

now-existing congressional districts to satisfy the qualified-elector requirement.

C. The Secretary of State’s statutory arguments fail.

¶40. To reiterate, we base our holding on the wording of section 273(3) and the undeniable

reality that Mississippi elects its congressmen from four congressional districts.

Accordingly, any foray into the effects of a statute purporting to draw five congressional

districts is unnecessary. However, the Secretary of State and Justice Maxwell contend that,

for purposes of state law including section 273(3), Mississippi still has five congressional

districts. Both cite Section 23-15-1037, wherein the old five Congressional districts are

delineated. The Secretary of State argues that, while the federal-court injunction that defines

21
Mississippi’s four congressional districts for purposes of electing representatives prohibits

the state from using it to define congressional districts for that purpose, it does nothing to

prohibit the state from using it to define congressional districts for other purposes.

¶41. The Secretary of State’s and Justice Maxwell’s arguments face problems, though.

First, we reach the conclusion above, pursuant to our duty to interpret the Constitutional text

according to its plain meaning and to harmonize its parts, that the phrase “congressional

district” as used in section 273(3) means, well, congressional district. It does not mean “old

congressional districts” or “five districts that the Legislature may establish.” The statute

cannot trump the Constitution. Pickering v. Langston Law Firm, P.A., 88 So. 3d 1269,

1288 (¶ 100) (Miss. 2012).

¶42. Second, by operation of state law itself, Section 23-15-1037 no longer establishes

Mississippi’s congressional districts. The next code section provides as follows:

Should an election of representatives in Congress occur after the number of

representatives to which the state is entitled changes, and before the districts
have changed to conform to the new apportionment, representatives shall be
chosen as follows: If the number of representatives is increased, then one (1)
member shall be chosen in each district as organized, and the additional
member or members shall be chosen by the electors of the state at large; and
if the number of representatives is decreased, then the whole number shall be
chosen by the electors of the state at large.

Miss. Code Ann. § 23-15-1039 (Rev. 2018). In the above-quoted statute, the law anticipates

the possibility that Mississippi’s congressional representation can increase or decrease. The

moment Mississippi lost a representative following the 2000 census, Section 23-15-1039, in

the event of a congressional election without redistricting, would have activated to provide

an alternative, at-large method for electing the remaining four representatives. Accordingly,

22
for a reason wholly separate from the federal injunction so severely decried by Justice

Maxwell, Section 23-15-1037 no longer described Mississippi’s congressional districts, to

which the twenty percent requirement of section 273(3) is explicitly tied. Yet the demise of

Section 23-15-1037 at the hands of Section 23-15-1039 is not yet complete. Section 23-15-

1039 contains language explicitly providing that it would only be in effect “before the

districts have changed to conform to the new apportionment.” The statute does not require

that the districts be changed by the Mississippi Legislature; it requires only that they be

changed. Unarguably, as we sit in consideration of the case before us today, they have been

changed. Mauldin, 866 So. 2d at 436. Accordingly, as a matter of Mississippi law, Section

23-15-1037 is not just once removed from effect in setting Mississippi’s congressional

districts, it is twice removed.

¶43. The unworkable nature of the Secretary of State’s argument can be illustrated with a

hypothetical. Consider the following hypothetical statute that the Legislature might have

enacted to conform Mississippi to the 2000 census results:

(a) The State of Mississippi is hereby divided into four (4) congressional
districts below:

FIRST DISTRICT. The First Congressional District shall be

composed of the following counties and portions of counties
....

SECOND DISTRICT. The Second Congressional District shall

be composed of the following counties and portions of counties
....

THIRD DISTRICT: The Third Congressional District shall be

composed of the following counties and portions of counties
....

23
 FOURTH DISTRICT: The Fourth Congressional District shall
be composed of the following counties and portions of counties
....

(b) For purposes of article 15, section 273(3), of the Mississippi

Constitution, the State of Mississippi is hereby divided into five (5)
Congressional Districts below:

....

To consider having one set of congressional districts for the purpose of electing

representatives to Congress and a different set of congressional districts for another purpose

other than electing members of Congress illustrates the semantic mountain the Secretary of

State must climb to prevail. The Legislature cannot legislate away reality, and the Court

cannot decree away reality. The text of section 273(3) ties the twenty percent signature cap

to Mississippi’s congressional districts—not preexisting congressional districts or five

districts as otherwise set by the Legislature. The Secretary of State argues that the five

congressional districts once established by Section 23-15-1037 “may be used for anything

but congressional elections.” We conclude that when congressional districts no longer

delineate the borders that determine where qualified electors who vote for a particular

congressional seat reside, they become, well, just districts. To hold that the old five

congressional districts remain congressional districts even though they no longer function to

define the districts from which the voters of Mississippi elect their congressional

representatives is a bridge too far.

¶44. In writing, “The reason the five congressional districts set forth in Section 23-15-1037

have not been used for twenty years to elect representatives to Congress is because

24
Mississippi has been enjoined by a panel of three federal district judges from doing so[,]”

Justice Maxwell’s dissent is simply wrong. Maxwell Diss. Op. ¶ 56 (citing Smith v. Clark,

189 F. Supp, 2d 548, 559 (S.D. Miss. 2002)). Mississippi lost a representative due to the

results of the 2000 census and the Permanent Reapportionment Act of 1929 before the

federal panel drew new districts for Mississippi in the face of Mississippi’s failure to do so.

Mauldin, 866 So. 2d at 432 (¶ 5). As set forth above, Section 23-15-1039 then activated to

replace the five Section 1037 districts with one statewide, at-large district that until such time

as redistricting occurred. Justice Maxwell expresses puzzlement as to how we reach that

conclusion, Maxwell Diss. Op. ¶ 59, but it comes from the plain language of the statute

quoted above. The mystery is not in how we reach the conclusion that Section 23-15-1039

changed Mississippi’s congressional map when the state lost a representative, but it lies

instead in how it can be denied that it did so. Following the loss of our fifth representative,

under no circumstances short of regaining the fifth seat would Mississippians ever again go

to the polls to elect representatives to Congress from the five Section 23-15-1037 districts.

Miss. Code Ann. § 23-15-1039 (“[I]f the number of representatives is decreased, then the

whole number shall be chosen by the electors of the state at large.”) Even if the federal court

had not issued the injunction, Mississippi by operation of state law would no longer have five

congressional districts. It would have one statewide, at-large district. In addition, and as also

noted above, Section 23-15-1039’s wording does not attempt the setting of new

congressional districts to acts of the Mississippi Legislature, and it is broad enough to

25
acknowledge, in State law, redistricting by federal injunction. Miss. Code Ann. § 23-15-

1039 (“and before the districts have changed to conform to the new apportionment . . . .”).

¶45. It would be interesting to know what the Secretary of State would conclude about the

continued functioning of section 273(3) had Mississippi drawn its own new four-district map.

Justice Maxwell goes as far as agreeing that section 273(3) would “no longer be in harmony”

with a new four-district map. Maxwell Diss. Op. ¶ 58 n.6. If one concludes that Section 23-

15-1037 saves section 273(3) but that a new statute that draws a new four-district map for

Mississippi would render it inoperable, then the disagreement is not with our interpretation

of section 273(3). It is instead with the proposition that Mississippi’s representation in the

United States House of Representatives can be set by federal law and that the federal

injunction in absence of state action can draw the lines. Those are bones one must pick with

Article I, Section 2, of and the Fourteenth Amendment to the United States Constitution, the

Permanent Reapportionment Act of 1929, and a unanimous United States Supreme Court.

Branch, 538 U.S. at 254.

¶46. Although Justice Maxwell sees the issue before us as one purely of state law, Maxwell

Diss. Op. ¶ 51, federal law decides how many representatives Mississippi sends to Congress.

As long as Mississippi has fewer than five congressional districts, it can draw for itself no

map of congressional districts that complies with both the federal apportionment of

representation that requires four districts and section 273(3) that requires five for all of its

provisions to function.

CONCLUSION

26
¶47. In the end, to agree with Justice Chamberlin’s conclusion that the text of section

273(3) mandates proceeding pursuant to Mississippi’s five congressional districts as they

existed when section 273(3) was ratified in 1992 would require agreement with two ideas

that cannot be sustained. First, we would have to be able to conclude that, in an alternate

world where Mississippi retained five congressional districts but the district lines had

changed, the ballot-initiative process would continue nonetheless to proceed under the 1992

district lines. The Secretary of State does not attempt to so argue in its brief. At oral

argument, counsel for the Secretary of State declined to agree with such a conclusion.

Nothing in the text of section 273 or anywhere else supports such a conclusion. Justice

Chamberlin does not explain why the cap he reads as requiring the provision to be enforced

pursuant to the 1992 districts would not work just as well with five different districts or, for

that matter, more than five districts. Chamberlin Diss. Op. ¶ 72. Most importantly, pursuant

to its own argument regarding the qualified-elector requirement, Justice Chamberlin’s

interpretation of section 273(3) can only give effect to the whole of section 237(3) if Section

23-15-1037 never changes. Second, as detailed in the preceding paragraph, we would have

to be able to conclude that Mississippi has two separate sets of congressional districts—one

for electing representatives to Congress and one set of congressional districts that would exist

for purposes other than electing representatives. The latter faulty conclusion would also

apply to Justice Maxwell’s position that Mississippi continues to have five congressional

districts pursuant to Section 23-15-1037. Both defy reason and reality; we can agree with

neither.

27
¶48. Pursuant to the duty imposed on us by article 15, section 273(9), of the Mississippi

Constitution, we hold that the petition submitted to the Secretary of State seeking to place

Initiative 65 on the ballot for the November 3, 2020, general election was insufficient.

Because Initiative 65 was placed on the ballot without meeting the section 273(3)

prerequisites for doing so, it was placed on the ballot in violation of the Mississippi

Constitution. Whether with intent, by oversight, or for some other reason, the drafters of

section 273(3) wrote a ballot-initiative process that cannot work in a world where Mississippi

has fewer than five representatives in Congress. To work in today’s reality, it will need

amending—something that lies beyond the power of the Supreme Court.

¶49. We grant the petition, reverse the Secretary of State’s certification of Initiative 65, and

hold that any subsequent proceedings on it are void.

¶50. GRANTED.

RANDOLPH, C.J., KING, P.J., BEAM, ISHEE AND GRIFFIS, JJ., CONCUR.
MAXWELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN
PART BY CHAMBERLIN, J. CHAMBERLIN, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY KITCHENS, P.J.; MAXWELL, J. JOINS IN
PART.

MAXWELL, JUSTICE, DISSENTING:

¶51. With respect to the majority, this case involves a pure question of Mississippi

law—interpretation of Mississippi’s Constitution. And I strongly disagree that the Secretary

of State acted in an unconstitutional manner by following Mississippi law. I am also hard

pressed to see how a federal court’s almost twenty-year-old injunction, aimed solely at

federal congressional elections, has now somehow unintentionally destroyed Mississippi’s

28
constitutional citizen-based ballot-initiative process. But that is exactly what the majority

is saying.

¶52. The majority confidently and correctly points out that “[n]owhere therein does the

Constitution allow amendment by the Supreme Court.” Maj. Op. ¶ 4 (citing McNeal v. State,

658 So. 2d 1345, 1350 (Miss. 1995)). Yet the majority does just that—stepping completely

outside of Mississippi law—to employ an interpretation that not only amends but judicially

kills Mississippi’s citizen initiative process. While the majority admits that our Constitution

should not be “expanded or extended beyond its settled intent and meaning by any court[,]”

it actively injects a federal court’s injunction into our Constitution—an injunction that was

in no shape, form, or fashion aimed at the initiative process. Maj. Op. ¶ 4 (emphasis added)

(quoting State v. Hall, 187 So. 2d 861, 863 (Miss. 1966)). And in doing so, the majority

rejects the existing harmony between our Constitution’s plain text and current Mississippi

statutory law. I suggest the majority should have heeded its own words that constitutional

changes should not be made by courts but “by those authorized so to do by the instrument

itself—the people.” Maj. Op. ¶ 4 (quoting Hall, 187 So. 2d at 863). But it has not. And

through its actions, not only is this particular initiative dead, but so is Mississippi’s citizen-

initiative process.4

¶53. Now, based on the majority’s holding, this constitutional ballot-initiative process may

only be revived, or more accurately, be proposed by a legislative push. Because I do not join

in the majority’s stance, I dissent. Based on the Constitution’s plain text and Mississippi’s

4
This opinion does not speak to the merits of the current initiative or the wisdom or
folly of having a citizen-based initiative process.

29
unchanged statutory law, I disagree that the Secretary of State unconstitutionally placed

Initiative 65 on the ballot.

¶54. The question before us concerns the constitutional requirement that “[t]he 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.” Miss. Const. art. 15, § 273(3). In answering whether then-Secretary of State

Delbert Hosemann properly certified the ballot initiative, the majority looks to two

sources—(1) the dictionary definition of “congressional district” and (2) a federal injunction

from a three-judge court. From these sources, it concludes Mississippi’s Constitution must

use the four federally drawn congressional districts for ballot-initiative purposes. Thus, in

the majority’s view, the amendment mechanism in section 273 “no longer functions.” Maj.

Op. ¶ 6.

¶55. But this case does not involve a federal election, much less a federal question. Nor

is the Supremacy Clause or federal preemption at hand. We are called solely to interpret

Mississippi’s Constitution. So instead of citing dictionaries and federal panels, I respectfully

suggest we look to Mississippi law. With this novel approach in mind, I point out that under

current Mississippi law—whether we like it or not—there are five congressional districts.

Miss. Code Ann. § 23-15-1037 (Rev. 2018). This much is irrefutable.

¶56. Section 23-15-1037, which lays out the five districts, has not changed since section

273 was added to Mississippi’s Constitution. And there have been zero changes to the five

districts listed in Section 23-15-1037, even after the number of seats in the United States

30
House of Representatives allocated to Mississippi was reduced from five to four following

the 2000 United States census.

¶57. The reason the five congressional districts set forth in Section 23-15-1037 have not

been used for twenty years to elect representatives to Congress is because Mississippi has

been enjoined by a panel of three federal judges from doing so. Smith v. Clark, 189 F. Supp.

2d 548, 559 (S.D. Miss. 2002), aff’d sub nom. Branch v. Smith, 538 U.S. 254, 123 S. Ct.

1429, 155 L. Ed. 2d 407 (2003), and amended sub nom. Smith v. Hosemann, 852 F. Supp.

2d 757 (S.D. Miss. 2011).5 And while I have no reason to disagree with or decry this federal

order, I do have to point out that this federal injunction deals only with federal congressional

elections. Id. It does not consider, speak to, or in any way preclude Mississippi’s ability to

continue to use the five statutory congressional districts for other purposes—including the

Secretary of State’s use of these five districts to determine if section 273(3)’s signature

requirement has been met.

¶58. Indeed, the continued functionality of section 273 was not even remotely on the

federal judges’ radar back in 2002 when they looked at federal-election districts. And these

judges would not have touched it with a ten-foot pole even if it had been. That is because

“[a] federal court may not interpret the State Constitution.” Pro-Choice Miss. v. Fordice,

716 So. 2d 645, 665 (Miss. 1998). Instead, it is this Court that “reserve[s] the ‘sole and

absolute right’ to interpret the Mississippi Constitution.” Id. at 665-66 (quoting Penick v.

5
Under this injunction, Mississippi must “use the congressional redistricting plan
adopted by this [federal] court in its order of February 4, 2002, in all succeeding
congressional primary and general elections for the State of Mississippi thereafter, until the
State of Mississippi produces a constitutional congressional redistricting plan . . . .” Id.

31
State, 440 So. 2d 547, 551 (Miss. 1983)); see also, e.g., Learmonth v. Sears, Roebuck &

Co., 631 F.3d 724, 739 (5th Cir. 2011) (certifying a question of Mississippi constitutional law

to this Court). And after reviewing our Constitution’s text and Mississippi’s current statutory

law—Section 23-15-1037—it is obvious and beyond debate that both contemplate five

congressional districts.6

¶59. I also do not follow the majority’s logic that Mississippi Code Section 23-15-1039

(Rev. 2018) somehow erases these five geographical districts. Like the federal injunction,

this section obviously addresses what to do until the Legislature redraws Mississippi’s

congressional districts. Again, while the majority wrongly insists these statutory districts

have changed by virtue of the federal injunction, under Mississippi law, it is the Legislature

that draws Mississippi’s congressional districts. Miss. Code Ann. § 5-3-123 (Rev. 2019).

And it has been widely documented that the Legislature—which is statutorily tasked with

redrawing these districts—has failed to do so for nearly two decades. Because this case

involves absolutely no question of federal law, we need look no further than Mississippi law.

And under Mississippi law—including section 273—the Legislature has yet to change

Mississippi’s congressional districts from five to four. Just crack open the Mississippi Code.

6
The majority poses a “what if” question, expressing particular interest in my
“hypothetical” view of the continued functionality of section 273(3) had the Legislature
redrawn the districts in Section 23-15-1037 to reflect four, instead of five, districts. Maj.
Op. ¶ 43. Of course, this is not the scenario this court is facing. Let’s be clear—we are
facing five statutory districts. But if the Legislature had acted and amended Section 23-15-
1037 but not pushed a successful amendment of section 273(3), that section would no longer
be in harmony with the statutory congressional districts in Section 23-15-1037. But again,
that is not the situation we face. Instead, we are looking squarely at a Mississippi
constitutional provision and a Mississippi statutory law that both involve five districts.

32
Section 23-15-1037 is still right there on the books, and the five districts remain unchanged.

See Appendix C (containing the full and current text of Miss. Code Ann. § 23-15-1037).

¶60. Even so, the majority finds this view “unworkable.” Maj. Op. ¶ 43. But the Attorney

General, the Secretary of State, and the majority of voters who passed Initiative 65 and two

prior initiatives believe that it works just fine. Indeed, the five-district view is the only one

in which section 273(3) works post-2000 census. Instead of looking outside of Mississippi

law to bury section 273(3), I agree with Justice Chamberlin7 that the proper course is to

interpret “any congressional district” consistent with the one-fifth requirement of section

273(3) and Mississippi Code Section 23-15-1037. For the reasons addressed above, the

Petitioners simply cannot show the Secretary of State acted unconstitutionally by relying on

Mississippi law when he greenlighted Initiative 65’s placement on the ballot.

¶61. Therefore, I dissent.

CHAMBERLIN, J., JOINS THIS OPINION IN PART.

CHAMBERLIN, JUSTICE, DISSENTING:

¶62. This Court has stated that “the constitution is presumed capable of ordering human

affairs decades beyond the time of ratification, under circumstances beyond the prescience

of the draftsmen.” Myers v. City of McComb, 943 So. 2d 1,7 (Miss. 2006) (internal quotation

marks omitted) (quoting Alexander v. State ex rel. Allain, 441 So. 2d 1329, 1334 (Miss.

1983), overruled on other grounds by 5K Farms, Inc. v. Miss. Dep’t of Revenue, 94 So. 3d

7
I agree with the gist of Justice Chamberlin’s opinion that Mississippi’s ballot
initiative is not broken, particularly not by the federal judicial panel’s injunction. But I do
not join footnote 8 of his opinion.

33
221 (Miss. 2012)). The majority, holding that article 15, section 273(3), of the Mississippi

Constitution is unworkable, has destroyed this presumption and has rendered a provision of

the constitution incapable of ordering any affair, human or otherwise, beyond a time not long

after its ratification. Therefore, as to the majority’s holdings regarding article 15, section

273(3), of our constitution, I must respectfully dissent.

¶63. The people of Mississippi empowered the judiciary with interpretation of the state

constitution. See Myers, 943 So. 2d at 5 (Miss. 2006) (“It is universally accepted that the

highest judicial tribunal of a state is the paramount authority for the interpretation of that

state’s constitution, subject only to the Constitution of the United States.” (quoting

Alexander, 441 So. 2d at 1333)). In attempting to exercise this responsibility, however, the

majority disables the very thing it was designed to interpret and enforce.

¶64. As indicated by the majority, in 1992, the Legislature adopted a resolution that

proposed to establish the people’s right to propose and enact initiatives to amend the

constitution. S. Con. Res. 516, 1992 Miss. Laws ch. 715. This measure was approved by the

voters in the November 1992 election and was then enshrined in article 15, section 273(3),

of the Mississippi Constitution. As enacted in 1992, section 273(3) reflects the state’s

present-day initiative framework.

¶65. At issue here is the third subsection within section 273. It defines the initiative

process and the signature requirements for placing initiatives on the ballot during a statewide

election:

The people reserve unto themselves the power to propose and enact
constitutional amendments by initiative. An initiative to amend the

34
 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.

Miss. Const. art. 15, § 273(3). The majority recognizes the sound principle that “[o]ur

Constitution’s plain language is to be given its ‘usual and popular signification and

meaning.’” Maj. Op. ¶ 22 (quoting Town of Sumner v. Ill. Cent. R. Co., 236 Miss. 342, 111

So. 2d 230, 233 (1959)). The plain language of section 273 when viewed as a whole,

however, supports only a reading or interpretation that recognizes Mississippi’s

congressional districts as they existed in 1992. See 16 C.J.S. Constitutional Law § 83

(“Constitutional rights are enshrined with the scope they were understood to have when the

people adopted them whether or not future legislatures or future judges think that scope too

broad.” (citing District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d

637 (2008)).

¶66. The majority ultimately concludes that section 273 is unworkable. As support for its

holding, it announces that the term “congressional district” found within section 273(3) can

only refer to the four congressional districts that Mississippi has used since 2002 to elect

members to the United States House of Representatives. To achieve this definition, the Court

rightly looks to the dictionary meaning of “congressional district” to find that “congressional

35
district” means a place where citizens of a state elect members to serve in the United States

House of Representatives to ultimately represent the will of those citizens in Congress. See

Maj. Op. ¶ 28. Thus, as understood by the majority, section 273(3)’s use of “congressional

district” can only be the congressional districts Mississippi uses to elect, and has used to elect

since 2002 pursuant to the federal injunction issued in Smith v. Clark, 189 F. Supp. 2d 548

(S.D. Miss. 2002), its representatives to Congress.

¶67. Further, the majority looks to a 2009 Attorney General opinion that it, presumably,

believes provides persuasive support for its theory that section 273(3) is broken. Maj. Op.

¶ 24. Indeed, the Attorney General did note that “[i]t would be mathematically impossible

to satisfy the requirements of Section 273 using just four districts.” Miss. Att’y Gen. Op.,

No. 2009-00001, 2009 WL 367638, Hosemann, at *3 (Jan. 9, 2009). While this Court is

certainly not bound by the Attorney General’s interpretation of section 273(3), it is curious

that the majority, when turning to the opinion, fails to mention the Attorney General’s other

(and ultimate) conclusion in the same opinion: “[i]t 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 in effect prior to the adoption of the current four-

district plan.” Id. Thus, while not binding, the Attorney General’s actual position supports

the reading of section 273(3) discussed in this separate opinion that utilizes the five

congressional districts as they existed in 1992 rather than a reading that unnecessarily

“breaks” section 273(3).

36
¶68. Though the majority’s method of defining “congressional district” is not unreasonable,

its reliance on the definition of “congressional district” in complete isolation and to the

exclusion of the historical and textual context surrounding the adoption of section 273(3) is

cause for concern.8 When words within the constitution are considered independently and

strictly, those words “do not of themselves immovably fetter the sense or intention” of the

constitution. Moore v. Gen. Motors Acceptance Corp., 155 Miss. 818, 125 So. 411, 413

(1930). Instead, when we interpret the Mississippi Constitution, “we seek the intent of the

draftsmen, keeping in mind, ‘the object desired to be accomplished and the evils sought to

be prevented or remedied.’” Myers, 943 So. 2d at 7 (Miss. 2006) (emphasis added) (internal

quotation marks omitted) (quoting Alexander, 441 So. 2d at 1334)). The Court must also

“read and enforce the Constitution in the manner which best fits its language and best serves

our state today.” Dye v. State ex rel. Hale, 507 So. 2d 332, 342 (Miss. 1987) (citing

Alexander, 441 So. 2d at 1334, 1339). And “constitutional provisions should be read so that

each is given maximum effect and a meaning in harmony with that of each other.” Id. (citing

St. Louis & San Francisco Ry. Co. v. Benton Cnty., 132 Miss. 325, 330, 96 So. 689, 690

(1923)).

8
The majority’s interpretation is like a well-manicured lawn whose caretaker focuses
on one isolated blade of grass—here, the term “congressional district”—while ignoring the
weed that is context. Interpretation should involve a joint effort between reading the actual
words and the context in which they are found. The majority’s reading thrusts a
constitutional provision into chronic limbo, creating a transient or temporary constitutional
right. To be blunt, it effectively slams the lid on the initiative process. This surely cannot
be the intent of the Legislature and the people. As a court, we should nip this interpretation
in the bud.

37
¶69. First, section 273(3) includes a one-fifth (1/5) qualifier within the text following

“congressional district.” Miss. Const. art. 15, § 273(3). Section 273(3) prohibits the

Secretary of State from considering in the sufficiency determination the number of submitted

petition signatures received from any congressional district that exceeds one-fifth of the total

number of required signatures needed, i.e., at least twelve percent of the total votes cast in

the last gubernatorial election. Id. (“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.”). In 1992, when the

current framework of section 273(3) was established, Mississippi consisted of five

congressional districts. See Miss. Code Ann. § 23-15-1037 (Rev. 2018). Section 273(3)

reflects this reality in the denominator of the fraction it uses to cut off consideration of

petition signatures. Therefore, one-fifth in section 273(3) qualifies section 273(3)’s other

term, “congressional district,” to reflect section 273(3)’s framework that, as was clearly

intended, utilizes five congressional districts. Thus, contrary to the majority’s conclusion

that section “273(3) ties the twenty percent signature cap to Mississippi’s congressional

districts—not preexisting congressional districts or five districts as otherwise set by the

Legislature[,]” the one-fifth cap ties section 273(3)’s use of the term “congressional district”

to the five that existed in 1992. Maj. Op. ¶ 43.

¶70. As Justice Scalia once wrote, “[i]n textual interpretation, context is everything, and

the context of the Constitution tells us not to expect nit-picking detail, and to give words and

phrases an expansive rather than narrow interpretation—though not an interpretation that the

38
language will not bear.” Antonin Scalia, Common-Law Courts in a Civil-Law System: The

Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter

of Interpretation: Federal Courts and the Law 3, 37 (Amy Gutmann ed., 1997). Today the

majority chooses a narrow, transitory interpretation of the Legislature’s use of “congressional

district” as set out in section 273. However, the context in which section 273(3) was passed,

along with its purpose of providing the people with a means to amend the constitution by

initiative, should not be ignored and indeed supports an expansive reading of section 273(3)

that results in its continued validity rather than its demise and honors the intent of both the

Legislature and the voters of the state of Mississippi who adopted the amendment.

¶71. Second, it is undisputed that the initiative-petition process has resulted in multiple

successful amendments to our constitution since redistricting at the turn of the century.

Moreover, “[t]hough constitutional issues should be avoided, if one is nonetheless squarely

presented it is the court’s ‘duty to adopt a construction of the statutes which purges the

legislative purpose of any constitutional invalidity, absurdity, or unjust equality.’” Jeffrey

Jackson, Mary Miller, Donald Campbell, et al., Mississippi Practice Series: Encyclopedia

of Mississippi Law § 68:75 (2d ed.), Westlaw (database updated Oct. 2020) (quoting Univ.

of Miss. Med. Ctr. v. Robinson, 876 So. 2d 337, 340 (Miss. 2004)). Today, the majority opts

instead for a construction that purges section 273(3) of any validity rather than choosing the

interpretation that leaves the amendment in force and allows the people to exercise the right

reserved unto them—to amend our constitution by initiative. Further, it stretches the bounds

of reason to conclude that the Legislature in 1992, when drafting section 273(3), would have

39
placed a poison pill within the language of the provision that would allow the provision and

the right of the people to amend the constitution through initiative to be eviscerated at the

whim of a federal injunction of such limited scope.

¶72. The majority also discusses the perceived significance of the Legislature not placing

a “now existing” clause within section 273(3) to explicitly tie the congressional districts to

the five that Mississippi used prior to the Smith injunction. Maj. Op. ¶ 33. The plain

language of section 273(3), however, reveals that this point is a red herring since no such

clause is necessary to tie “congressional district” to the five that existed in 1992 when the

provision also clearly contemplates section 273(3)’s use of five districts in its cap on

consideration of signatures from any one district. See Cellular S., Inc. v. BellSouth

Telecomms., LLC, 214 So. 3d 208, 212 (Miss. 2017) (“It is our job to determine legislative

intent from the language of the act as a whole, and not to separate from the statutory herd one

part alone.” (citing Wilson v. State, 194 So. 3d 855, 872 (Miss. 2016)). Indeed, it is curious

that the majority recognizes via hypothetical that the term “congressional district” as used

in section 273(3) could be qualified by a “now existing” clause while, at the same time, it

ignores the one-fifth language qualifying “congressional district” that is explicitly mentioned

in section 273(3). Maj. Op. ¶ 33.

¶73. To be clear, I have no quarrel with how the dictionary defines terms or that the

majority looks to a common, dictionary definition of “congressional district.” Upon further

review, however, it is apparent that this conclusion is drawn without regard to either the

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immediate surrounding text of section 273(3) or the circumstances of the provision’s history.9

I therefore submit that section 273(3) is workable because it commands the use of the five

congressional districts as they existed in 1992. This reading is the only way to interpret

section 273(3) that gives effect to every word of section 273(3)—not just the isolated and

limited phrase “congressional district”—and gives credence to the purpose of section 273(3),

which is to reserve in the citizens of this state the ability to amend our constitution by a clear

initiative process. See Dye, 507 So. 2d at 342 (citing Alexander, 441 So. 2d at 1334, 1339).

¶74. Indeed, the “object desired,” Myers, 943 So. 2d at 7 (quoting Alexander, 441 So. 2d

at 1334), in section 273(3) is to provide the people of Mississippi an avenue to amend their

state’s constitution. See Miss. Const. art. 15, § 273(3) (“The people reserve unto themselves

the power to propose and enact constitutional amendments by initiative.”). Today, this object

only survives if section 273(3) is read to require the use of the five congressional districts as

they existed in 1992. Furthermore, utilizing the five districts as they existed in 1992 allows

to be recognized the will of both the Legislature and the people, each of which acted to have

Initiative Measures 65 and 65A placed on the ballot, as well as the citizens of Mississippi

who later voted to adopt Initiative 65 as a constitutional amendment. See Maj. Op. ¶ 3 (“On

9
The majority, while focusing almost exclusively on the term “congressional district”
in section 273(3), mentions that “the plain language of section 273 ties the congressional
districts mentioned therein to the actual, existing congressional districts.” Maj. Op. ¶ 27;
see generally Maj. Op. ¶¶ 27-35. However, while the majority may be right in giving great
weight to the text of section 273(3), the term “congressional district” when viewed in
isolation is neither the best evidence of the legislative intent behind section 273(3) nor is it
the only evidence, especially in light of other qualifying language and the facts surrounding
section 273(3)’s adoption.

41
November 3, 2020, a strong, if not overwhelming, majority of the voters of Mississippi

approved Initiative 65, which establishes a legal medical-marijuana program.”).10

¶75. Additionally, the majority discusses a perceived logical inability of qualified electors

to aver that they are in fact qualified electors of a congressional district (as that district

existed at the time section 273(3) was adopted), as required by Mississippi Code Section 23-

17-19 (Rev. 2018). Maj. Op. ¶¶ 36-37. The majority misses the mark, however, because

Section 23-15-1037 explicitly defines, by county and precinct, the boundaries of each of the

five congressional districts as they existed at the time section 273(3) was adopted. Miss.

Code Ann. § 23-15-1037 (Rev. 2018). Therefore, contrary to the majority’s conclusion, a

person signing an initiative petition and the county clerk receiving the petition need only

know their county and precinct to determine the congressional district of which they are a

qualified elector. Thus, electors can indeed aver to be qualified electors of the congressional

districts for the purposes of signing an initiative petition. In responding to the mere mention

of Section 23-15-1037, the majority proceeds to both invent and then destroy an argument

that we never made nor that we now make. Our mention of Section 23-15-1037 is for one

singular purpose—to note that the definition of the congressional districts as they existed in

1992 is readily accessible in the text of the statute as it currently exists. To have knowledge

of the district in which an elector would have been qualified in 1992 simply requires that the

clerk keep a copy of the statute in his/her office. This definition could certainly come from

10
This opinion does not speak to the merits of either the initiative process as a means
to amend the constitution nor Initiative 65 itself. In both instances, the Legislature and the
people have spoken, and we would be best served to stay in our lane.

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any number of sources including, for example, maps, journals, prior election results, etc.

However, the language as it currently exists in Section 23-15-1037 seems simplest and

provides but one of many options at the disposal of the electors of this state. Whether the

statute remains static or changes in the future does not in any way change this premise, as its

current language defines the districts as they existed in 1992.

¶76. And as the Secretary of State aptly phrased it, “former-Secretary Hosemann

interpreted and applied section 273(3)’s signature requirements to Measure 65 consistent

with existing state law instead of a federal injunction geared only at congressional elections.”

Again, the majority’s holding to the contrary implies that the drafters of section 273(3), while

able to recognize that the number of seats in the House may change for a state every ten

years, inserted a poison pill into section 273(3) that would strip the provision of its efficacy

if Mississippi ever lost a seat in Congress. This holding does not avoid absurdity; rather, it

invites it.

¶77. The constitution is presumed capable of ordering human affairs decades beyond the

time of ratification under circumstances beyond the prescience of the draftsmen. The

majority’s holding destroys such an ordering less than a decade after adoption, presumably

finding legislative incompetence or malevolence and/or a desire of the people to put a self-

destruct sequence into the initiative process they granted unto themselves. The interpretation

set forth in this separate opinion, as well as allowing the ordering of human affairs well into

the future, brings harmony to the provision, accords with the plain meaning of the section,

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and recognizes a proper legislative act followed by a knowing adoption by the electorate.

Therefore, I must dissent.

KITCHENS, P.J., JOINS THIS OPINION. MAXWELL, J., JOINS THIS

OPINION IN PART.

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 APPENDIX C

Miss. Code Ann. § 23-15-1037

§ 23-15-1037. Districts established

(1) The State of Mississippi is hereby divided into five (5) congressional districts below:

FIRST DISTRICT. The First Congressional District shall be composed of the following
counties and portions of counties: Alcorn, Benton, Calhoun, Chickasaw, Choctaw,
DeSoto, Itawamba, Lafayette, Lee, Marshall, Monroe, Pontotoc, Prentiss, Tate, Tippah,
Tishomingo, Union, Webster, Yalobusha; in Grenada County the precincts of Providence,
Mt. Nebo, Hardy and Pea Ridge; in Montgomery County the precincts of North Winona,
Lodi, Stewart, Nations and Poplar Creek; in Oktibbeha County, the precincts of Double
Springs, Maben and Sturgis; in Panola County the precincts of East Sardis, South Curtis,
Tocowa, Pope, Courtland, Cole's Point, North Springport, South Springport, Eureka,
Williamson, East Batesville 4, West Batesville 4, Fern Hill, North Batesville A, East
Batesville 5 and West Batesville 5; and in Tallahatchie County the precincts of Teasdale,
Enid, Springhill, Charleston Beat 1, Charleston Beat 2, Charleston Beat 3, Paynes,
Leverette, Cascilla, Murphreesboro and Rosebloom.

SECOND DISTRICT. The Second Congressional District shall be composed of the

following counties and portions of counties: Bolivar, Carroll, Claiborne, Coahoma,
Holmes, Humphreys, Issaquena, Jefferson, Leflore, Quitman, Sharkey, Sunflower,
Tunica, Warren, Washington, Yazoo; in Attala County the precincts of Northeast,
Hesterville, Possomneck, North Central, McAdams, Newport, Sallis and Southwest; that
portion of Grenada County not included in the First Congressional District; in Hinds
County Precincts 11, 12, 13, 22, 23, 27, 28, 29, 30, 40, 41, 83, 84 and 85, and the
precincts of Bolton, Brownsville, Cayuga, Chapel Hill, Cynthia, Edwards, Learned, Pine
Haven, Pocahontas, St. Thomas, Tinnin, Utica 1 and Utica 2; in Leake County the
precincts of Conway, West Carthage, Wiggins, Thomastown and Ofahoma; in Madison
County the precincts of Farmhaven, Canton Precinct 2, Canton Precinct 3, Cameron
Street, Canton Precinct 6, Bear Creek, Gluckstadt, Smith School, Magnolia Heights,
Flora, Virlilia, Canton Precinct 5, Cameron, Couparle, Camden, Sharon, Canton Precinct
1 and Canton Precinct 4; that portion of Montgomery County not included in the First
Congressional District; that portion of Panola County not included in the First
Congressional District; and that portion of Tallahatchie County not included in the First
Congressional District.

THIRD DISTRICT. The Third Congressional District shall be composed of the following
counties and portions of counties: Clarke, Clay, Jasper, Kemper, Lauderdale, Lowndes,
Neshoba, Newton, Noxubee, Rankin, Scott, Smith, Winston; that portion of Attala County
not included in the Second Congressional District; in Jones County the precincts of
Northwest High School, Shady Grove, Sharon, Erata, Glade, Myrick School, Northeast
High School, Rustin, Sandersville Civic Center, Tuckers, Antioch and Landrum; that
portion of Leake County not included in the Second Congressional District; that portion
of Madison County not included in the Second Congressional District; that portion of
Oktibbeha County not included in the First Congressional District; and in Wayne County
the precincts of Big Rock, Yellow Creek, Hiwannee, Diamond, Chaparral, Matherville,
Coit and Eucutta.

FOURTH DISTRICT. The Fourth Congressional District shall be composed of the

following counties and portions of counties: Adams, Amite, Copiah, Covington, Franklin,
Jefferson Davis, Lawrence, Lincoln, Marion, Pike, Simpson, Walthall, Wilkinson; that
portion of Hinds County not included in the Second Congressional District; and that
portion of Jones county not included in the Third Congressional District.

FIFTH DISTRICT. The Fifth Congressional District shall be composed of the following
counties and portions of counties: Forrest, George, Greene, Hancock, Harrison, Jackson,
Lamar, Pearl River, Perry, Stone; and that portion of Wayne County not included in the
Third Congressional District.

(2) The boundaries of the congressional districts described in subsection (1) of this
section shall be the boundaries of the counties and precincts listed in subsection (1) as
such boundaries existed on October 1, 1990.

Credits
Laws 1986, Ch. 495, § 307; Laws 1991, 1st Ex. Sess., Ch. 2, § 1, eff. February 21, 1992.