Mississippi Supreme Court overturns 2020 medical marijuana initiative, says the state’s initiative process can’t be used

On May 14, 2021, the Mississippi Supreme Court ruled 6-3 to overturn Ballot Measure 1 (Initiative 65). The medical marijuana initiative was approved by 74% of voters at the 2020 general election.

The court ruled that the initiative should not have been placed on the ballot because the initiative petition did not comply with the signature distribution requirements in the Mississippi Constitution. The court held that any subsequent proceedings regarding the initiative are void. The ruling agreed with plaintiffs that the requirements in the constitution for an initiative petition were mathematically impossible to meet and have been since the state’s congressional districts were reduced from five to four in 2001.

Initiative 65 was designed to allow medical marijuana to be recommended for patients with at least one of the 22 specified qualifying conditions including cancer, epilepsy or seizures, Parkinson’s disease, post-traumatic stress disorder (PTSD), Crohn’s disease, HIV, and more. Patients could have, under Initiative 65, possessed up to 2.5 ounces of medical marijuana at one time. Marijuana sales under Initiative 65 would have been taxed at the state’s sales tax rate, which was 7% as of 2020.

On October 26, 2020, the City of Madison, Mississippi, filed the lawsuit in the Mississippi Supreme Court asking the court to invalidate Initiative 65. The city of Madison and Mayor Mary Hawkins Butler alleged that the Secretary of State unlawfully certified the measure in violation of Section 273 of Article 15 of the Mississippi Constitution. Section 273 states “The 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.” The lawsuit argued, “Because Mississippi has four congressional districts, it is a mathematical certainty that the number of signatures submitted in support of Initiative Measure No. 65 from at least one of the four congressional districts exceeds 1/5 of the total number required. […] The Mississippi Legislature is aware of this mathematical impossibility … Despite the Legislature’s failure to propose an amendment to the voters, the Secretary of State nonetheless has followed an ‘amended’ Section 273(3) and has inserted ‘the last five-district congressional district plan’ into the text of the Constitution.”

The 1992 constitutional amendment that granted the power of citizen initiative in Mississippi required signatures to be collected evenly from all five congressional districts that existed at the time. During 2001 redistricting after the 2000 census, however, the number of congressional districts in the state was reduced to four. Based on a 2009 attorney general’s opinion, the secretary of state has used the five districts that existed before 2001 to apply the constitution’s distribution requirement.

The six justices wrote, “Because Initiative 65 was placed on the ballot without meeting the section 273(3) prerequisites for doing so, it was placed on the ballot in violation of the Mississippi Constitution. 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. To work in today’s reality, it will need amending—something that lies beyond the power of the Supreme Court.”

The court’s dissenting opinion said, “[I]t stretches the bounds of reason to conclude that the Legislature in 1992, when drafting (the ballot initiative process) would have placed a poison pill within the language of the provision that would allow the provision and the right of the people to amend the constitution through initiative to be eviscerated at the whim of a federal injunction (on congressional districts) of such limited scope.”

Ken Newburger, Executive Director for the Mississippi Medical Marijuana Association, said, “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.”

State Rep. Trey Lamar (R) said, “The language of Initiative 65 that would have gone into our constitution was not good for the people of Mississippi. I thank our Supreme Court for having the courage to rule according to the law and for protecting our citizens from the unintended consequences of Initiative 65. Now, we should craft a legitimate medical marijuana program that will truly help the people who would benefit from it without all of the unintended consequences that would have come with 65.”

Eleven initiatives have been filed targeting the 2022 ballot in Mississippi, including recreational marijuana legalization, Medicaid expansion, term limits, open primaries, and redistricting.

Two other initiatives (both in 2011) made it to the ballot and were approved since 2001 reapportionment. Initiative 27 was designed to require photo identification to vote. Initiative 31 prohibited the state of Mississippi and local governments from taking private property by eminent domain and then conveying it to other persons or businesses for a period of 10 years.