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Ever heard of the “Doctrine of Absurdity”? Probably not, but it’s a real thing. It also applies very fittingly to Mississippi and their Supreme Court’s absurd decision inexcusibly handed down on Friday, May 14th in the case of (Madison, MS Mayor) Mary Hawkins Butler v. Michael Watson, 2020-IA-01199-SCT. The absurdity doctrine, also known as the ‘scrivener’s error‘ exception, is a legal theory under which American courts have interpreted statutes contrary to their plain meaning in order to avoid absurd legal conclusions. The absurdity doctrine was available to the Justices of the MS Supreme Court, but they took a hard pass on it. Why? Maybe because it’s out of vogue? What’s more in favor with American jurists these days? Strict constructionism. Think of the late US Supreme Court Justice Antonin Scalia who famously stated such things as, “Words have meaning. And their meaning doesn’t change” or “The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery.”

Well, this is where we find ourselves today on the other side of a devastating decision where the majority favored a dead document over a living and evolving one. At the core of the legal dispute is the conflict between the MS Constitution’s controlling Section 273 that “…no more than one-fifth of the total signatures to place an initiative on the ballot may come from any one congressional district” and Mayor Butler’s argument that because Mississippi now has only four congressional districts rather than the five contemplated in Section 273(3), it is mathematically impossible to collect the correct proportion of signatures. Thus, she asserted, MS Secretary of State (SOS) Mike Watson erred in certifying the results of the November 2020 election that passed Initiative 65 (I-65). We hear a number of voices, typically not lawyers, claiming that the Court has spoken and we should respect their decision. Well, a quote kind of like this comes to mind, “Opinions don’t necessarily merit respect; they must earn respect in the marketplace of ideas.”

Alas, for all of us who were engaged, participating, hoping for or needing the medicine, what happened on Friday felt like a miscarriage of justice. It felt like that because it was exactly that. Among the barrister class who have read thousands upon thousands of legal opinions over our careers, we see those clear and well-reasoned decisions that reflect reasoning, deduction, logic and a careful sifting through of facts and review of the law. And then there are the other kind that start with a conclusion and work backwards from there to justify that decision. This one was unfortunately a case of the latter, more political, process and consequently, predictably, it reached an absurd result. So much for conservative jurists’ disdain for “activist judges,” huh? This decision strikes me as merely another iteration of one of the worst current scourges sweeping the country and no, it isn’t COVID-19. It’s voter disenfranchisement in another of its many incarnations.

It’s odd to be quoting Justice Scalia yet again in this installment as he’s not among my favorite jurists, but this quote is drawn from MS Supreme Court Justice Chamberlin’s well-reasoned dissent and set’s up his excellent summary quote that follows. Scalia 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 language will not bear.” Truth be told, other legitimate, more sane and sensible interpretations were available to the Justices. Chamberlin summarized his alternative interpretation wherein the context of the initiative provision actually mattered thusly, “The interpretation set forth in this separate opinion, as well as allowing the ordering of human affairs well into the future [a living rather than static document], brings harmony to the provision, accords with the plain meaning of the section, and recognizes a proper legislative act followed by a knowing adoption by the electorate.” Emphasis added.

The legal reasoning is as flawed as the language of Section 273(3) itself and if representative democracy is to survive in Mississippi, the voters cannot allow this brazen political play to stand. While it seems strange and awkward for me, a practicing attorney, to talk about a Court this way, it’s clear to me that raw politics were at play. This is nothing more than the next chapter in the long tortured history of elites exercising their disdain for the fundamental franchise that supposedly set us apart from so much of the rest of the world. We had to fight for it for women, for blacks and then for blacks again and again and now, shockingly and absurdly, for the majority – 74% of Mississippi’s voters. As Justice Chamberlin wrote succinctly, “This holding does not avoid absurdity; rather, it invites it.” The level of hubris it took to reach their absurd conclusion betrays a belief that the people are too ignorant, too lazy, too unsophisticated or too disorganized and docile to do anything about it. Time to dig in, folks and push until you’ve wrested your democracy back from the aristocrats or modern day federalists.  Why should any of us settle for anything less than the language of I-65 that was already ratified by an overwhelming majority of the citizenry?