We might have finally found something Mississippians of every political persuasion can agree on: The use of eminent domain for private economic development is a bad idea.
With 97 percent of precincts reporting late last Wednesday afternoon, Initiative 31, which will amend the state Constitution to essentially restrict the use of eminent domain to projects of direct public use, had earned more than 595,000 votes. The initiative needed 50 percent plus one, with the affirmative votes equaling at least 40 percent of total votes cast in all races, to pass. With 96 percent of precincts reporting, 73 percent of the votes cast were in favor of 31.
The 595,000 votes were more than all but one of the winners of the statewide races got. Lt. Gov.-elect Tate Reeves had gotten about 598,000 votes by 3 p.m. last Wednesday.
Eminent domain’s initiative colleagues didn’t come close to that. Personhood failed altogether. Voter ID passed, but got 94,000 fewer votes.
Personhood’s defeat would qualify as a minor upset. There was never very much doubt that Voter ID would pass. Likewise with eminent domain, but it’s hard to imagine anyone who supported it would have thought that it would outpoll Gov.-elect Phil Bryant by 90,000 votes with 96 percent of precincts reporting.
The Mississippi Farm Bureau Federation and its 200,000 “member families” made eminent domain their single biggest issue the past 18 months. The latest issue of Farm Country, the organization’s magazine, was almost nothing but testimonials from members on the virtues of private property rights.
Nothing is settled, though. The new eminent domain law will almost assuredly be challenged on the grounds that amending the state Constitution – specifically, the Constitution’s Bill of Rights — via ballot initiative is illegal. The Mississippi Supreme Court deferred the issue when Mississippi Development Authority interim executive director Leland Speed challenged it earlier this year, arguing that it would kill any chance the state had of attracting projects like the Toyota and Nissan manufacturing facilities.
Speed had not returned a message left with a MDA spokesperson by the time the Mississippi Business Journal went to press last week. In an interview with the MBJ earlier this year, he said he would most likely challenge the initiative if it passed.
Mississippi Farm Bureau Federation president Randy Knight said last week that he had not communicated directly with Speed, but was under the impression that Speed would seek to overturn the law.
“We’re expecting one,” Knight said. “We’re still real optimistic, though. It’s hard to fathom that the Mississippi Supreme Court would do away with something that 73 percent of Mississippians are so strongly in favor of.”
Matt Steffey, a professor at Jackson’s Mississippi College School of Law who has followed each of the three initiatives closely, said the state’s high Court would not decide the issue based on its popularity, but on its legal merits.
“While I think that personhood clearly transcended the limits of what the initiative process can be used for, the eminent domain only arguably does,” he said.
What separates the two amendments, he said, is that the text of the Personhood initiative would have amended the Bill of Rights’ use of the word “person.”
“It sought to fundamentally redefine the balance of liberty contained in the Bill of Rights,” Steffey said. “It essentially took direct aim at the Bill of Rights. That’s not the way the text of the eminent domain initiative reads. So the argument is at least that much removed. The argument will be, in effect, that the Bill of Rights already strikes a balance between private property rights and governmental need. The argument could be that this alters that balance.”
“On the other hand,” Steffey continued, “it doesn’t add to or subtract from or redefine any of the words in the Bill of Rights. In that sense, it’s different. You could argue that it doesn’t modify any existing understanding of state constitutional law. Either way, I’m absolutely certain there will be a challenge to it.”