It makes it harder to pass. Plain and simple.

Say you’re a legislator who has repeatedly voted to appropriate less money to the state’s K-12 system than prescribed by the funding formula known as the Mississippi Adequate Education Program. Even though MAEP legally requires the Legislature to allocate the full amount, you know it lacks enforcement power. Therefore you’ve dismissed it with confidence that if push ever came to shove, you could just repeal the statute.

But now you’re worried that might change. This November, Mississippians will vote on a constitutional amendment that would circumscribe the Legislature’s ability to ignore MAEP. If the initiative wins a simple majority of the vote, then underfunding MAEP (or some definition of “adequate” funding) would violate the state constitution. Ultimately the state Supreme Court could force you to pay up. Checks and balances.

The Better Schools Better Jobs campaign did the yeoman’s work of collecting signatures last summer in order to get the amendment onto the November ballot. They recorded the signatures of at least 116,000 registered voters, equally distributed across Mississippi’s five pre-2000 Congressional districts. The Secretary of State has certified it as Initiative 42.

Now, as a legislator, you know that a fair number of your constituents signed the petition, and that it won’t look good this November to oppose it outright. But you don’t particularly want to drop another $250 million into MAEP, and you certainly don’t want to cede power of the purse to another branch of government. What do you do?

Luckily for you, your legislative predecessors gave you an escape hatch when they crafted the citizen-sponsored initiative process. A single bill by you and your colleagues can raise the number of votes it takes to pass the amendment and confuse voters who aren’t trained in the nuances of education finance law. Yes, you get to move the goalposts and yell in the kicker’s ear at the same time. Democracy is beautiful, isn’t it?

Here’s how it works. The Secretary of State sends the certified initiatives to the Legislature in the session prior to the election. The Legislature has the power to offer an alternative to any initiative before it is placed on the November ballot. If they do so, the original and alternative language will be listed side-by-side on the ballot for the voters to sort out. But first, voters have to indicate whether they support either initiative or neither of them. It’s a confusing two-step process that will look roughly like this:

INITIATED BY PETITION AND ALTERNATIVE BY LEGISLATURE

Initiative Measure No. 42, entitled “Should the State be required to provide for the support of an adequate and efficient system of free public schools?”

Alternative Measure No. 42 A, entitled “Shall the Legislature be required to provide for the establishment and support of an effective system of free public schools?” [version passed by House]

Question 1. VOTE FOR APPROVAL OF EITHER, OR AGAINST BOTH:

FOR APPROVAL OF EITHER Initiative No. 42 OR Alternative No. 42 A (  )

AGAINST Both Initiative No. 42 AND Alternative No. 42 A (  )

Question 2. AND VOTE FOR ONE:

FOR Initiative Measure No. 42 ( )

FOR Alternative Measure No. 42 A (  )

For the original version to be adopted, a simple majority must support approval of either initiative on Question 1. Then it must receive a majority of the vote on Question 2. But here’s where it gets diabolical: the original version must also receive at least 40 percent of all votes cast in the election — even among people who voted against both initiatives or skipped the questions completely.

The goalposts move based on how many people vote for either amendment on Question 1. The below chart estimates of what percentage of the vote the original version needs on Question 2 given the level of support on Question 1. (Using voter dropoff numbers from the 2011 Personhood initiative, I’ve added the assumption that 3 percent of voters will skip the question entirely.)

If this many people vote YES to either amendment on Question 1……Initiative 42 needs this many YES votes on Question 2 
>50%82%
60%69%
70%59%
80%52%
90%>50%

To put it into words, if a bare majority supports the approval of either initiative on Question 1, then the original version of the amendment must receive 82 percent of the vote on Question 2 in order to satisfy the 40 percent threshold. Even if 70 percent of voters support approval on Question 1, the original version would still need 59 percent on Question 2.

Of course, the alternative language could be adopted if it received the above levels of support, but it is designed to be legally meaningless. The Initiative 42 alternative passed by the House promises every Mississippian the right to an “effective system of free public schools.” It deliberately excludes the funding requirements laid out by Initiative 42 or the “adequate and efficient” language that is familiar to education finance law in other states — though it still sounds good enough to confuse a lot of people who might not realize that.

But let’s refocus on what’s most important here: you, our legislator. This arcane bit of legislative chicanery has bailed you out. You now have the ability to campaign for reelection this fall on your “pro-education” support for Alternative Initiative 42 at the same time that you ensure you’ll never be forced to spend any more money on schools than you want to. Everyone wins, right?

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