Cannabis Business Times
by Tony Lange
17 May 2021
The Mississippi Supreme Court ruled Friday that the voice of its people, who voted in favor of legalizing medical cannabis by more than a two-thirds majority during in the November 2020 election, is not enough to influence policy.
The ballot measure, Initiative 65, would have required the Mississippi State Department of Health to adopt rules and regulations for a medical cannabis program by July 1, 2021, and begin issuing medical patient cards and treatment center licenses by Aug. 15, 2021. The ballot results were certified by Secretary of State Michael Watson.
But the state’s high court overruled those election results by a 6-3 decision. Justice Josiah D. Coleman wrote the majority opinion.
The Supreme Court’s ruling stems from Section 273(3) of the Mississippi Constitution, which states that signatures from each congressional district for a ballot initiative cannot exceed one-fifth of the total number of signatures required to qualified an initiative petition for placement upon the ballot. In short, the section was designed to ensure an even number of signatures was gathered from each congressional district for geographic uniformity.
However, after the 2000 Census, Mississippi dropped from five districts to four districts—making Section 273(3)’s one-fifth requirement mathematically at odds with the political structure of the state’s electorate. Language dealing with the initiative process was never updated to “one-fourth” in that section.
“Whether with intent, by oversight, or for some other reason, the drafters of section 273(3) wrote a ballot-initiative process that cannot work in a world where Mississippi has fewer than five representatives in Congress,” Coleman said in his majority opinion. “To work in today’s reality, it will need amending—something that lies beyond the power of the Supreme Court. We grant the petition, reverse the secretary of state’s certification of Initiative 65, and hold that any subsequent proceedings on it are void.”
The Mississippi Supreme Court heard oral arguments on the constitutionality of the voter-approved medical cannabis measure on April 14, after Madison Mayor Mary Hawkins Butler filed a lawsuit that challenged the initiative process. Butler first filed the complaint in late October, just one week before Election Day.
Proponents of Initiative 65 said their petition met the requirements set by the state constitution and by a 2009 opinion from former Mississippi Attorney General Jim Hood, The Associated Press reported in October. That opinion concluded that the general purpose of the geographic distribution requirement for signatures was to help assure that citizens from one part of the state did not use the initiative process to the detriment of those in another.
Meeting that geographic objective, 74% of Mississippians passed Initiative 65 at the polls, winning in all 82 counties, according to Mississippi Medical Marijuana Association (3MA), a proponent of the reform effort.
“The Mississippi Supreme Court just overturned the will of the people of Mississippi,” 3MA Executive Director Ken Newburger said in a statement. “Patients will now continue the suffering that so many Mississippians voted to end. The Court ignored existing case law and prior decisions. Their reasoning ignores the intent of the constitution and takes away people’s constitutional right. It’s a sad day for Mississippi when the Supreme Court communicates to a vast majority of the voters that their vote doesn’t matter.”
Section 273(3) states the people reserve unto themselves the power to propose and enact constitutional amendments by initiative.
As recent as 2011—roughly a decade after Mississippi dropped from five to four congressional districts—voters passed a pair of ballot initiatives that were never challenged in the court of law based on Section 273(3). That year, Mississippians voted in favor of Initiative 27, which requires residents to show government-issued photo identification before voting, and in favor of Initiative 31, which limits the use of eminent domain—the right of a government to expropriate private property for public use.
Those two ballot measures were not mentioned by the Mississippi Supreme Court on Friday in its ruling to overturn the 2020 election results of Initiative 65.
In the dissenting opinion, Justice James D. Maxwell said he strongly disagreed that the secretary of state acted in an unconstitutional manner by placing Initiative 65 on the ballot.
“I am also hard pressed to see how a federal court’s almost 20-year-old injunction, aimed solely at federal congressional elections, has now somehow unintentionally destroyed Mississippi’s 28 constitutional citizen-based ballot-initiative process,” he said. “But that is exactly what the majority is saying.”
Furthermore, Maxwell said that while Mississippi’s congressional districts were adjusted federally for representation in the U.S. House of Representatives, Section 23-15-1037 of Mississippi Code of 1972—a state law that defines five congressional districts—was never updated following the 2000 Census. Therefore, according to state law, Mississippi still has five congressional districts.
That said, the federal shift to four congressional districts “does not consider, speak to, or in any way preclude Mississippi’s ability to continue to use the five statutory congressional districts for other purposes—including the secretary of state’s use of these five districts to determine if Section 273(3)’s signature requirement has been met,” Maxwell said.
According to Mississippians for Compassionate Care, an organization that helped push Initiative 65 to passage in November, the voter-approved measure would allow residents affected by any of 22 conditions, such as cancer, chronic pain or epilepsy, to qualify as medical cannabis patients.
A fiscal analysis by Mississippi’s Legislative Budget Office estimated the first year of the medical program would cost the state roughly $11.1 million, according to the organization. In the following years, the program will bring in around $10.7 million in overall annual revenue, which would be required to go back into the program.
Following the Supreme Court’s decision on Friday, Marijuana Policy Project Deputy Director Matthew Schweich issued the following statement:
“Today is a cruel and tragic day for sick and suffering people in Mississippi. The state’s Supreme Court has issued a deeply flawed ruling to overturn Amendment 65, the medical cannabis law that voters overwhelmingly approved in the November 2020 election. As a result, tens of thousands of Mississippians with debilitating health conditions will be denied safe, legal access to something that can alleviate their pain and improve their quality of life. Instead, they will once again be treated as criminals under the law. To add insult to injury, this decision not only nullifies the will of hundreds of thousands of voters, it also effectively eliminates Mississippians’ right to bring forward ballot initiatives to amend their state’s constitution. The legislature must take action to fix the ballot initiative requirements and honor the will of their constituents by enacting Amendment 65 into law through the legislative process. Our hearts are broken for the patients in Mississippi who need access to medical cannabis, as well as their families who will continue to watch their loved ones needlessly suffer. We stand with them. The fight for a compassionate medical cannabis law in Mississippi will continue.”