Despite a massive vote on Nov. 3 in favor of a new Mississippi state flag that proclaims “In God We Trust,” additional official actions are needed to ensure the death knell for the 126-year-old state flag that features the Confederate battle emblem as part of its design.

During the 2021 legislative session that begins in January, lawmakers must ratify the new state flag approved by voters on Nov. 3. The bill passed this summer – which retired the old flag and formed a commission to recommend a new design (the “In God We Trust” flag) to be approved or rejected by voters on Nov. 3 – included a little-noticed provision that requires legislators to ratify the action of the voters.

That means lawmakers must take at least one more vote on the flag in the rapidly approaching legislative session.

In 2001, during an earlier failed attempt to change the state flag, legislators voted to hold a referendum where the choice would be between the old flag and a new design recommended by a commission. The bill passed by the Legislature that year stated that whatever flag voters approved would be the official flag of the state without any additional action by the Legislature. In 2001, voters overwhelmingly voted to retain the old flag.

But the bill approved this year states that once voters approved the new design, “the Legislature shall enact into law the new design as the official Mississippi state flag.” Of course, the courts have ruled that the word “shall” does not force legislators to do anything they do not want to do.

The vote to change the flag this past summer was a difficult one for many legislators to take, and several lawmakers have taken heat for it in their home districts. That begs the question of why language was put into the bill essentially forcing legislators to take yet another vote on the contentious issue. It seems the easier option would have been to mandate that the vote of the people for a new flag would ratify that banner as official.

As the bill was being crafted in June, concerns were raised about an 1860 Supreme Court case, Alcorn v. Hamer. Some said the ruling in that case could be interpreted to say it was unconstitutional for the Legislature to leave it to a vote of the people to enact general law.

Despite the controversy surrounding replacing the old flag, there is good reason to believe the ratification of the new flag by the Legislature during the 2021 session will be nothing more than a formality and will perhaps happen early in the session.

After all, more Mississippians voted for the new state flag on Nov. 3 than voted for President Donald Trump or U.S. Sen. Cindy Hyde-Smith. Heck, more people voted for the new flag than voted for medical marijuana, which also got more votes than Trump and Hyde-Smith.

The only ballot item receiving more votes than the new flag this year was the proposal to change the Constitution to remove the language requiring candidates for statewide office to garner both a majority of the popular votes and to win the most votes in a majority of House districts in order to win the election.

That proposal received 957,420 votes, or 79.2 percent, in still unofficial returns, while the flag garnered 939,585 vote, or 73.3 percent. Trump received 756,731 votes, or 57.5 percent.

Both the electoral provision that was repealed by voters and the old state flag were remnants of the 1890s, when Mississippi’s white power structure took extraordinary steps to deny basic rights to African Americans. The electoral provision was enacted as a method of preventing Black Mississippians, then a majority in the state, from being elected to statewide office.

Placing the Confederate battle emblem on the state’s official flag during the same time period, no doubt, was a way for white lawmakers to pay homage to the Civil War in which Southerners fought to preserve slavery.

Even if the Legislature, as expected, does ratify the new flag in 2021, the controversy may not be quite over. The Let Mississippi Vote political committee plans to try to garner the roughly 100,000 signatures of registered voters needed to place a proposal back on the ballot to allow people to choose between four flags – one being that 126-year-old banner.

Most likely later this month or early next month, the clock will start ticking on the one-year time frame supporters of that ballot initiative will have to gather the signatures to place the flag proposal on the ballot.

Whether Mississippians, who voted overwhelmingly for a new flag on Nov. 3, will want to vote again on the contentious issue remains to be seen.

This analysis was produced by Mississippi Today, a nonprofit news organization that covers state government, public policy, politics and culture. Bobby Harrison is Mississippi Today’s senior Capitol reporter.

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