The Absurd Formalism of the Mississippi Supreme Court
by Michael C. Dorf
The Mississippi Constitution provides for two means of amendment. The legislature can propose amendments or the People can do so via ballot initiative. State ballot initiatives--for good or ill--frequently change state law in ways that the ordinary legislative process does not. Drug policy is one area where we tend to see a divergence between popular opinion and legislator opinions. Thus, last November, Mississippi voters used the ballot initiative process to amend their state constitution to allow medical marijuana. Or so they thought. It turns out, the Mississippi Supreme Court recently decided, the Secretary of State acted unlawfully by placing the issue on the ballot.
Why? Because the state constitution says that for a petition to successfully place a measure on the ballot "signatures of the qualified electors from any congressional district shall not exceed one-fifth (1/5) of the total number of signatures required to qualify an initiative petition for placement upon the ballot." When that requirement was adopted, Mississippi had five congressional districts, but following the 2000 census, it was reduced to four. If you're any good at math, you'll realize that the state Supreme Court ruling means that not only was the medical marijuana initiative wrongly included on the ballot, but that the ruling effectively wiped out the possibility of amending the state constitution by ballot initiative. With only four districts, there will be at least one-quarter (1/4) of signatures coming from at least one district. And, take my word on this one, a quarter exceeds a fifth.
The Mississippi Supreme Court Justices in the majority are not bad at math. They're just bad at law. They realized that their ruling eliminated the ballot initiative, but they thought that was the inevitable result of the census and the text of the state constitution. Indeed, they had the gall to say that they had to rule as they did, because otherwise they would be changing the constitution. This is the sort of ruling that gives formalism a bad name.
Consider an everyday sort of analogy. Sheila is a shopper for Instacart. She wants to fill an order for Edgar. The order includes various quantities of tomatoes, onions, garlic, beer, and more. It also says "I'm going to make my famous five-bean chili. Please purchase a total of five pounds of the following kinds of dry beans: kidney; black; pinto; garbanzo; and chickpea. But make sure that no bean amounts to more than a fifth of the total by weight." Sheila puzzles over the order. She surmises that Edgar doesn't realize that garbanzo beans are the same thing as chickpeas. Indeed, the grocery store where Edgar has asked her to shop doesn't sell anything called "chickpeas." All of its dry chickpeas are labeled "garbanzo." She tries to contact Edgar to clarify, but he's unavailable. What should Sheila do?
(1) One option would be to buy a pound each of kidney, black, and pinto beans, and two pounds of garbanzo beans. That would fulfill Edgar's desire for five pounds of beans, even though it would violate his requirement that "no bean amounts to more than a fifth of the total by weight." After all, garbanzo beans now amount to two-fifths. Still, Sheila might fairly say, that's what Edgar really wanted; he just didn't realize that's what he wanted because of his mistaken belief that garbanzo beans and chickpeas are different.
(2) Another option would be for Sheila to get a pound of each of the four kinds of beans. This would violate the no-more-than-a-fifth rule also, because now each kind of bean accounts for a quarter of the total, but it seems to respect the general spirit of Edgar's wish to balance the varieties of beans.
(3) Yet option (2) does not satisfy Edgar's requirement that there be five pounds of beans in total, which is probably important in ensuring the proper proportion of other ingredients. A seemingly better option would be to buy 1.25 pounds of each of the four kinds of beans, which would total five pounds and, like option (2), would also seem to respect the general spirit of "equal beans."
I think either (1) or (3) could plausibly be defended. Maybe even option (2). The one thing that it would make no sense whatsoever for Sheila to do would be to say that she can't comply with Edgar's wishes perfectly--which she cannot--so she won't buy any beans. That is a much greater departure from anything Edgar might want than any of the other approaches.
The Mississippi Supreme Court bought no beans.
Now, hold on, you might say, there are at least two differences between Sheila and the Mississippi Supreme Court. First, Edgar made a mistake. And second, law is not shopping. I find neither distinction persuasive.
It's true that Edgar made a mistake, but so did the drafters of the no-more-than-a-fifth provision of the Mississippi constitution. When they wrote that provision in 1992, they seem to have mistakenly assumed that Mississippi would always have at least five congressional districts. Is it possible that they intended for the initiative process to disappear in a puff of mathematics if the state's representation declined? Well theoretically, sure, but there's nothing else in the text or history of the provision that suggests as much. It seems that the drafters simply overlooked the possibility of a decline in the number of districts. It was at least as much of a mistake as thinking that garbanzo beans and chickpeas are different things.
What about the second objection? One might think that intentionalism is appropriate for a hired shopper but textualism is the preferred mode of construing authoritative legal texts like constitutional provisions. Does that notion distinguish beans from legislative districts?
Nope. For one thing, as the dissenters in the Mississippi case point out, it is possible to read "congressional district" in Section 273(3) of Article 15 of the Mississippi Constitution to refer to the state statutory division into five, not four, congressional districts. To be sure, federal court rulings enjoined the use of that statutory definition for congressional elections, but as the dissenters further argue, that doesn't preclude its use for some other purpose--like making sense of an otherwise unusable ballot initiative procedure in the state constitution. So the textualist case for the majority's ruling is not nearly so strong as the majority thinks.
Moreover, as the dissenters also point out, even if Mississippi had amended the statute with respect to congressional elections, it would still be possible to read the constitutional provision to allow the ballot initiative process to proceed by reading "congressional district" to refer to the 1992 districts, not the current districts. Would that be the most natural reading? Of course not. But it would avoid absurdity.
And that takes us to what might be the heart of the matter. Neither the majority nor the dissents cite the 1892 federal Holy Trinity case, but (if you will excuse the pun) its spirit hangs over the Mississippi case. Textualists routinely denounce Holy Trinity for its pronouncement of what is sometimes called an absurdity doctrine. The U.S. Supreme Court concluded its opinion in that case by saying that where the "whole history and life of the country affirm" that some category of case or cases "could not have been intentionally legislated against . . . [i]t is the duty of the courts . . . to say that, however broad the language of the statute may be, the act, although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute."
Wait! If I'm advocating the strong intentionalism of Holy Trinity, does that mean I'm rejecting the proposition on which Justice Gorsuch relied last Term in the Bostock case in finding that Title VII's prohibition on sex discrimination in employment extends to sexual orientation and gender identity discrimination? There he quotes Justice Scalia's unanimous opinion in the Oncale case, which said that "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." If the Mississippi Supreme Court was wrong to nullify the procedure by which citizens can place proposed constitutional amendments on the ballot, was SCOTUS also wrong in Bostock?
In a word, no. The Oncale/Bostock proposition does not say "do what the text requires even if it's absurd." It says "follow the words of a statute to their logical and natural extension, even if doing so goes beyond the concrete intentions and expectations of the drafters." The Oncale/Bostock proposition is perfectly compatible with a Holy Trinity-rooted absurdity canon that generally gives the text its full even if unexpected meaning but rejects a construction of a statutory or constitutional provision that would render that provision essentially pointless. To be sure, that's not how the absurdity doctrine was used in Holy Trinity, but the textualist critique of the absurdity doctrine goes well beyond critiquing the particular result in Holy Trinity.
Accordingly, I think it fair to read the Mississippi Supreme Court and strong textualists more generally as promoting absurdity.