OurTupelo

Eric J. Shelton/Mississippi Today

House Speaker Philip Gunn prepares to remove his mask as he leaves a press conference on Thursday, May 7, 2020.

After being at an impasse for months over the governor’s spending authority, the Legislature on Monday passed a compromise budget for the Department of Marine Resources, just days before the agency would run out of money and with two storms rolling through the Gulf.

“We agreed the issue needed to be resolved now,” said Republican House Speaker Philip Gunn, who has been at odds with Republican Gov. Tate Reeves over appropriation power, and recently filed a lawsuit against the governor over his line item vetoes of legislative spending.

Gunn and other legislative leaders say the state Constitution gives appropriation power to the Legislature, not the executive branch, and that previous governors’ spending of Gulf restoration money that flows through DMR’s budget has violated that separation for years.

“We’ve agreed to continue to work on this issue,” Gunn said Monday. “This deal is a one-time agreement for this year, it does not concede this issue or hinder anything moving forward.”

DMR, which provides marine regulatory and law enforcement services on the Gulf Coast, has been without a state budget since July 1 and was set to run out of money to operate and meet payroll at the end of August. The issue became even more urgent this week with a tropical storm and a hurricane in the Gulf and DMR providing emergency services.

At issue is control of millions of dollars a year of Gulf restoration funds Mississippi receives for oil and gas leases. The Gulf of Mexico Energy Security Act, or GOMESA, is a federal revenue sharing program for oil and gas producing states in the Gulf. For this year, the state has $47 million in GOMESA funds.

Reeves has called the legislative push to control GOMESA spending a “power grab” after the executive branch has run the program since its inception in 2006. In recent years, the amount of money coming in for Mississippi’s share of GOMESA has ballooned from hundreds of thousands a year to tens of millions.

The Legislature had been divided on the issue, with much of the Senate supporting Reeves authority over GOMESA funds. The compromise provides $27 million for projects already approved by the executive branch, and $10 million for any projects it approves this budget year. The remaining $10 million will be on hold until next year, and the Legislature will continue to haggle over executive authority over the program.

“I’m very thankful we reached an agreement to get DMR back up and rolling,” said Senate Ports and Marine Resources Chairman Philip Moran, R-Kiln, who had largely supported Reeves position. “… Next year when we come back, we will continue to work on this. We’re not very far apart at the end of the day.”

Senate leaders had previously offered a compromise that included creation of a legislative advisory committee to make recommendations on GOMESA projects and spending. House leaders had pitched having the governor submit a list of GOMESA projects for legislative approval each year, allowing for “checks and balances.”

Since its inception in 2006, then-Mississippi Govs. Haley Barbour and Phil Bryant controlled approval of GOMESA projects vetted by DMR as the revenue started out small but continued to grow.

In recent years, lawmakers and others have questioned whether projects chosen are helping coastal restoration and protection, or if they are just pet political projects.

Millions in GOMESA funds have been granted to build boardwalks near casinos, a planned aquarium in Gulfport — including a tram system threatened to be “de-obligated” for not meeting GOMESA requirements — and other projects critics have said don’t meet the intended purpose.

Reeves on Monday morning, at a press conference to discuss the threat to Mississippi from a tropical storm and a hurricane this week, said he had worked with legislative leaders over the past couple of weeks and was pleased a compromise had been reached.

The Legislature reconvened Monday to pass a DMR budget, and is expected to meet briefly on Tuesday before adjourning, likely until October.

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Rogelio V. Solis, AP

Jackson Women’s Health Organization

Mississippi’s currently-blocked law that bans abortions after 15 weeks should not be heard by the U.S. Supreme Court, attorneys said last week.

“The state has asked the Supreme Court to review the 5th Circuit decision striking down the 15 week ban and we are telling the Supreme Court that there’s absolutely no need to review that decision — the 5th Circuit decision was correct based on decades of precedent about pre-viabilty ban,” Hillary Schneller, lead attorney representing the Jackson Women’s Health Organization, told Mississippi Today about the new court filing. 

The law has been overturned by federal courts twice in two years. This was the first of recent abortion bans to be passed by a state, blocked by federal courts, and if taken up by the Supreme Court, would be the first to make it that far. Up to now, the Court has declined to take up any recent cases banning abortion at various points in pregnancy.

“It speaks to the state’s relentless attempts to ban or restrict abortion and just make it harder and harder and harder for people to access important reproductive health care,” Schneller said. “It’s both something new and more of the same. It’s not new that the state is trying to restrict abortion, but they’re continuing to get more and more aggressive about it.”

After years of Mississippi abortion regulations winding through lower courts, Attorney General Lynn Fitch in June petitioned the nation’s highest court to hear the 15-week case on appeal of a lower court’s 2019 ruling that blocked the unconstitutional law. The U.S. 5th Circuit Court of Appeals’ decision last year was the second court to block the 2018 law, after U.S. District Judge Carlton Reeves initially blocked it shortly after it was passed by the Mississippi Legislature and permanently overturned it eight months later.

Despite the quick succession of courts ruling the law unconstitutional, Mississippi’s Legislature passed an even stricter law the following year, banning abortions after six weeks of pregnancy. It too was blocked by the same two respective federal courts. Instead of appealing the more recent law to the Supreme Court, Fitch recently announced that she would revert to the less strict, 15-week law for appeal.

“The petition asks the Court to clarify its jurisprudence on abortion to allow states like ours to enact laws that further their legitimate interest in protecting maternal health, safeguarding unborn, and promoting respect for innocent and vulnerable life,” she said in a statement. Her office did not respond to questions about the case.

In its first abortion case with the newly aligned conservative bench — watched by reproductive rights advocates and opponents as a barometer of cases to come, as 17 states passed laws limiting abortion access in 2019 alone — the Supreme Court in June upheld abortion rights by allowing a Louisiana clinic to remain open.

The new brief — filed last week by the Center for Reproductive Rights on behalf of the state’s sole abortion clinic, Jackson Women’s Health Organization — asks the court to deny the state’s request to hear the case based on precedent. The Supreme Court traditionally takes a case when there are conflicting interpretations across circuit courts, or after new questions or evidence have been raised. Neither is the case here, according to the new filing.

“Both the United States Court of Appeals for the Fifth Circuit and the district court correctly held that this unconstitutional law cannot stand. The decision below properly applies this Court’s precedent and does not conflict with the decision of any other court,” reads the filing. “Nothing about this case warrants this Court’s intervention.”

The filing goes on to say that the state misinterprets its legal role in regulating abortion — something both parties have argued over before. Mississippi says its interest in “protecting unborn life, regulating the medical profession, and protecting maternal health” should override individual rights to choose abortion before viability. States do have a vested interest in regulating abortion, but they can’t outright ban the procedure, per precedent. Before a pregnancy is viable — usually around 23 to 24 weeks — the state can regulate, but not prohibit, abortion.

Mississippi has argued in court that its 15-week law is “not per se” a prohibition and that the viability framework needs to be revisited — despite consensus among medical professionals that limiting abortion access is more dangerous than the procedure itself: “Legislative restrictions fundamentally interfere with the patient–provider relationship and decrease access to abortion for all women, and particularly for low-income women and those living long distances from health care providers,” according to the American College of Obstetrics and Gynecology.

In the first decision to block the law, Judge Reeves outlined that the law is a prohibition, not just a regulation, and how that dooms the law: “States may not ban abortions prior to viability … 15 weeks (since last menstrual period) is prior to viability … the Act is unlawful.”

The 5th Circuit upheld the decision saying that “prohibitions on pre-viability abortions … are unconstitutional regardless of the State’s interests because,” quoting Planned Parenthood v. Casey, the 30-year-old case that affirmed Roe v. Wade, “‘a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.’”

During oral arguments at the 5th Circuit last year, the three-judge panel did separately push state attorneys on their claims that the law was not a prohibition and clinic attorneys on whether or not it was time to revisit the viability question.

Ultimately, the Circuit Court found they were “duty bound” to affirm the District’s decision, though they criticized its language admonishing Mississippi’s motives.

In his decision permanently blocking the 15-week law, Reeves called attempts to push unconstitutional laws through “disingenuous.”

“No, the real reason we are here is simple. The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade,” Reeves wrote. “The Mississippi Legislature’s professed interest in ‘women’s health’ is pure gaslighting. . . . Its leaders are proud to challenge Roe but choose not to lift a finger to address the tragedies lurking on the other side of the delivery room: our alarming infant and maternal mortality rates.”

Mississippi has among the nation’s highest worst maternal health outcomes and currently the highest rate of infant mortality. Conversely, complications from abortions are rare, especially in Mississippi where almost all happen in the first trimester and are delivered medically, by pill, rather than surgically. Though their likelihood of complication increases with duration of pregnancy,  Jackson Women’s Health Organization — the only clinic in the state — does not perform abortions after 16 weeks.

More than 90 percent of abortions in Mississippi in 2016 were performed before 14 weeks of gestation and 65 percent were before 9 weeks, according to the U.S. Centers for Disease Control and Prevention’s most recent data. More than a quarter of abortions in the U.S. are medically delivered rather than surgically, while almost two-thirds of abortions in Mississippi are delivered this way.

“Mississippi already has a number of restrictions and over-regulations of abortion that make it hard for everyone, in particular folks who are already struggling to access essential health care. That becomes more difficult in times of crisis, like the public health crisis we’re in right now,” Schneller, clinic attorney, said. “So the fact that the state is continuing to fight this fight all the way up to the Supreme Court is not unexpected, but is disappointing that this is where their efforts continue to be focused.”

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Eric J. Shelton/Mississippi Today, Report For America

Sec. of State Michael Watson

Secretary of State Michael Watson, the state’s chief elections officer, says he is “a bit concerned” with the ability of the U.S. Postal Service to ensure absentee ballots are mailed out and returned in time to be counted for the November general election.

“But our office can only control what our office controls, and the USPS isn’t on our list,” said Watson, a first term Republican, in prepared responses to questions from Mississippi Today. “I recently spoke to a circuit clerk who just this week received a mail-in absentee ballot that was postmarked last October, so everyone should be concerned about mail-in ballots, especially the states that have and are moving to vote by mail elections.”

USPS delays are expected play a huge role in the 2020 election, and the issue has become the subject of partisan debate. The Postal Service recently sent memos to many states, including Mississippi, saying it might not be able to deliver the ballots in a timely fashion. More people are expected to vote via mail this November to prevent crowded polling places in the midst of the COVID-19 pandemic.

At one point, President Donald Trump, who opposes voting by mail though he does it himself, said he opposed federal funding to ensure the Post Office can carry out its functions, especially delivering and returning election ballots. The Post Office has been negatively impacted because of a slowdown in the volume of mail caused by the pandemic.

“Now they need that money in order to make the Post Office work so it can take all of these millions and millions of ballots,” Trump said, adding if federal funds were not appropriated for the Post Office, “you can’t have universal mail-in voting because they’re not equipped to have it.”

The Democratic-controlled U.S. House has approved $25 billion to boost the Postal Service. The Republican-controlled Senate has thus far refused to take up any legislation.

In 2016, 28,716 ballots were mailed out in Mississippi. Watson said people eligible to vote absentee should request a ballot as soon as possible. The ballots should be available no later than Sept. 21.

Mississippi is the only state to require both a ballot application request and the ballot to be notarized. Many states, particularly during the pandemic, are either sending out ballots to all registered voters or at least are mailing out ballot applications.

Mississippi opted to do neither. Mississippi is also among a minority of states that do not have no excuse early voting.

“We have the most restrictive, onerous, difficult vote by mail laws in the nation,” said Sen. David Blount of Jackson. “We needed to change the laws before the coronavirus. We certainly need to change them now.”

Still, Gov. Tate Reeves said he believes all “legal” votes cast in the state will be counted despite the coronavirus.

“I am comfortable that Mississippi election laws that have allowed us to execute elections over so many years are adequate at this time in the middle of a pandemic,” Reeves said. “I think we can have a safe and fair election in November.”

In Mississippi, to vote early in person or by mail a person must be over the age of 65, be disabled or be away from home on election day. Earlier this year the Legislature did pass a bill to allow a person under a physician-imposed quarantine because of the coronavirus to vote absentee. Some question whether the change in law allowing people to vote early under a quarantine order actually could make it more difficult for people to vote early during the pandemic. Some believe existing language in the law – without any changes this year by the Legislature — would have given circuit clerks the authority to allow people to vote early under a provision saying people with a temporary disability could vote early.

A lawsuit, filed by the Mississippi Center for Justice, the American Civil Liberties Union and the ACLU of Mississippi on behalf of a group of Mississippians, is asking for a judicial ruling allowing all people to vote early because of concerns about voter safety.

The Legislature also has changed the law to allow mail-in ballots to be counted as long as they are postmarked by election day and received at the local county circuit clerk’s office within five days of the election. Under the old law, the ballots had to be received at the circuit clerk’s office the day before the election.

In Mississippi, the law does not prevent a notary from charging to notarize a ballot or ballot application though, the Secretary of State’s office does have a regulation preventing it. But the office concedes the law would trump the regulation. It is not clear whether out of state notaries can charge for Mississippians who are sending in a ballot from out of state.

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Residents fill sand bags on Courthouse Road in Gulfport, Miss., on Sunday, Aug. 23, 2020, as coastal residents prepared for impact of two possible back-to-back hurricanes. (Donn Hupp/The Sun Herald via AP)

BILOXI — Mississippi Gulf Coast residents shoveled sand into bags and boarded up windows ahead of two tropical storms forecast to affect the state this week.

The historically rare one-two punch of tropical storms hitting the United States within hours of each other comes 15 years to the week after Hurricane Katrina devastated the Gulf Coast in 2005.

“This is no Katrina, but I’d be lying if I told you it didn’t cross my mind,” Gulfport resident John Smith said after he finished loading a few sandbags into the back of his pickup. “I’m sure as hell taking it seriously.”

By Monday early afternoon, forecasters believed that Tropical Storm Marco would dump several inches of rain along coastal counties and could produce a storm surge of 2-4 feet on Monday into Tuesday.

But state officials warned that a second storm — the more powerful Tropical Storm Laura entering the Gulf of Mexico on Monday night — could be more dangerous for the Coast later in the week. Laura is expected to become a hurricane, and as of Monday afternoon is forecast to make direct landfall near the Texas-Louisiana border.

But even on its current track, the size of that storm could still produce flooding and high winds for Mississippi.

“The fact is that the second storm is not yet in the Gulf of Mexico,” Gov. Tate Reeves said on Monday morning. “Just like we saw with Marco, there is a lack of predictability as to exactly where that storm goes… This is 2020, so we expect the unexpected. We expect rare events to occur, and what we’re seeing this week is exactly that.”

Hurricane preparations and evacuations are made more difficult by the COVID-19 pandemic, which continues to affect Mississippi worse than most other states. State officials on Monday morning again warned residents to avoid shelters if they could during the pandemic.

“Shelters will be opened if they are needed. COVID will not keep us from opening them,” said Greg Michel, executive director of the Mississippi Emergency Management Agency. “But it’s important to remember that congregate shelters do place more individuals at risk during this pandemic. We are stating that if you have other means and places to go, please use that as your first option.”

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A supporter of the old state flag sits in front of the Mississippi Capitol in June. (AP Photo/Rogelio V. Solis)

Paperwork has been filed to begin the convoluted process of gathering the signatures to place on the ballot an initiative to resurrect the 126-year-old state flag that features the Confederate battle emblem prominently in its design.

Several steps must be finalized before the actual process of collecting the signatures can begin. Once the paperwork is completed, initiative sponsors will have one year to gather the necessary signatures.

In order for the flag proposal to make the ballot, the signatures of 106,196 registered voters must be obtained, or 12 percent of the total from the 2019 election for governor. The signatures must include 21,239 from each of the five congressional districts that existed in the 1990s.

If and when the initiative’s organizers begin that daunting task, they had better plan on doing extra work in the old 2nd Congressional District.

After all, that district has significantly fewer residents than the other four districts. But that does not matter. The state Constitution mandates the signatures be garnered equally from the districts as they existed in the early 1990s, when Mississippi voters went to the polls to enact the initiative process. Mississippi later lost a congressional district in the early 2000s because other states were growing faster.

The old 2nd District, which consisted of much of the Delta and areas of the Jackson metro, has 475,786 residents based on the 2010 Census, or 212,441 fewer residents than the old 1st District that included DeSoto County in northwest Mississippi and the Tupelo area in northeast Mississippi. The 2nd District has 147,034 fewer residents than the average of the other four districts.

In addition to the population deviation, there also is a large racial difference that could be significant. When it comes to collecting signatures of people who support bringing back the Confederate flag, it is likely safe to assume many Black Mississippians would oppose that effort.

The 2nd has 122,454 white adult residents compared to 219,985 African American adult residents, based on the 2010 Census. The other four districts average 312,020 white adults.

In June, the Mississippi Legislature approved removing the state flag. The Legislature formed a commission that will recommend a flag for voters to approve or reject this November. If the design is rejected, the commission will offer another proposal in 2021.

A group called Let Mississippi Vote sprung up in opposition to the action of the Legislature. Its initiative filed with the Secretary of State’s office would allow Mississippians to choose between four designs:

• The former state flag, including the Confederate battle emblem, but with the addition of the phrase “In God We Trust.”
• The flag commission recommendation.
• The bicentennial flag that many groups flew during the state’s 200th birthday in 2017 with the state seal incorporated into its design.
• The former Stennis flag, now called the Hospitality Flag, with “In God We Trust” as part of its design.

If and when voters adopt a recommendation from the flag commission, it will be state law. If voters approve a referendum from the Let Mississippi Vote effort, it will be part of the Constitution, making it much more difficult to change. Bringing back the old state flag most likely would generate national attention since Mississippi was in the national spotlight in June when the Legislature voted to remove the Confederate symbol.

The paperwork filed with the Secretary of State’s office calls for an election on the old flag in November 2021, but that will not happen.

First of all, it would be a monumental feat to gather the signatures in time for an initiative to appear on the 2021 ballot. And more importantly, the Constitution calls for the initiatives to be placed on the statewide general election ballot. In 2021, there are municipal elections in the spring and summer, but no statewide general election. And there is a question of whether the 2022 midterm elections, when congressional candidates and judicial candidates will be on the ballot, will count as a general election, meaning it could be 2023 before the issue is on the ballot if the required signatures are collected.

If the process seems like a maze, it is because legislators believed it should be difficult to amend the Constitution. And truth be known, lawmakers in the early 1990s were not fully invested in the concept of allowing citizens to be able to bypass the Legislature and amend the Constitution. Legislators intentionally made the process cumbersome and fraught with pitfalls.

Of the more than 70 initiatives that have been filed since 1992, seven have made the ballot, including the medical marijuana proposal that will be on the ballot this November.

Before the flag initiative makes the ballot, expect numerous twists and turns and perhaps various legal wranglings that are not uncommon with Mississippi’s convoluted initiative process.

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