The Mississippi Supreme Court’s decision to nullify the state’s ballot initiative process could make the state’s voter identification law susceptible to a legal challenge.

Now some attorneys are researching the possibility of challenging the law, which requires Mississippians show a government-issued photo ID at their polling place in order to vote. Meanwhile, some politicians are publicly calling for a special session to ensure the law cannot be successfully challenged.

Voter ID was first passed through the ballot initiative process in 2011, when 60% of Mississippi voters enshrined it into the state Constitution. The law has been widely touted by Republican elected officials and opposed by prominent Democrats.

But last month, the Mississippi Supreme Court deemed the ballot initiative process unconstitutional after a lawsuit challenging the 2020 medical marijuana program that more than 70% of Mississippi voters approved. The lawsuit contended that the entire ballot initiative process was invalid because the Constitution requires the signatures to place proposals on the ballot be gathered equally from five congressional districts. Following the 2000 Census, the state lost one of its congressional districts and has since had just four U.S. House seats.

Some believe that any legal challenge to voter ID would be pointless because after voters approved the initiative in 2011, lawmakers passed their own bill in 2012 that placed the voter ID language into state law — a home for the voter ID program completely separate from the Constitution.

“We put the voter ID into the state law,” House Speaker Philip Gunn said on May 18 when asked about the possibility of a legal challenge to voter ID, suggesting that a lawsuit would not be successful. “It’s already in the statutes.”

But Secretary of State Michael Watson, in an interview last week, said one key provision of the voter ID law that voters enshrined into the Constitution is not in state law: that any Mississippian can be issued free identification cards so they can vote.

While Mississippi’s Republican officials have boasted that Mississippi’s voter ID law has never been challenged in court, several other states that passed voter ID laws over the years were sued — and sometimes lost their cases — in part because they did not guarantee free ID cards. Not offering free ID cards, some in other states have successfully argued, disproportionately affects poor citizens and often people of color.

Because the free ID card provision exists only in the state Constitution but not state law, Watson says he fears the state may be susceptible to a lawsuit without fixing the problem as soon as possible. He suggested lawmakers should add the free ID card provision to state law in a special session.

“If you want to make sure a challenge is moot, you could do it next year, but you’re allowing time for it to be challenged,” Watson said. “Then we’re just going to spend money on attorneys in possibly a lawsuit. You’re going to spend money one way or another, you might as well make sure we get it right.”

The only other ballot initiative passed since the state lost a congressional district is one that prohibits the state of Mississippi and local governments from taking private property by eminent domain and conveying it to private entities for a period of 10 years.

The eminent domain language exists only in the state Constitution, not in state law, and Watson believes it is susceptible to a legal challenge following last month’s Supreme Court ruling. He said last week it should also be handled in a special session.

“That one has to be dealt with,” Watson said.

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