On November 3, 2020, the residents of Mississippi overwhelmingly voted in support of medical marijuana. Approximately sixty-eight percent (68.52%) of the voter turnout (816,107 in total) voted to enact legislation that would allow qualified patients to use, and Mississippi licensed physicians to prescribe, medical marijuana. Nearly seventy-four percent (73.7%) of the voter turnout (766,478 in total) voted for Ballot Initiative No. 65 over Alternative 65A, an alternative to Ballot Initiative No. 65 proposed by the Mississippi legislature.
You must be thinking: What’s the next step? When will we start seeing marijuana dispensaries popping up around town? When will my business be expected to comply with the new marijuana laws? Well, in the words of Lee Corso, “Not so fast, my friend.”
Shortly before the November 3, 2020 election, the Mayor of the City of Madison, Mary Hawkins Butler, filed an Emergency Petition to have Ballot Initiative No. 65 declared unconstitutional. She argues that the sponsors of Ballot Initiative No. 65 and the Secretary of State did not comply with Article 15, Section 273(3) of the Mississippi Constitution. Section 273(3) states:
The people reserve unto themselves the power to propose and enact constitutional amendments by initiative. An initiative to amend the Constitution may be proposed by a petition signed over a twelve-month period by qualified electors equal in number to at least twelve percent (12%) of the votes for all candidates for Governor in the last gubernatorial election. 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. If an initiative petition contains signatures from a single congressional district which exceed one-fifth (1/5) of the total number of required signatures, the excess number of signatures from that congressional district shall not be considered by the Secretary of State in determining whether the petition qualifies for placement on the ballot.
Specifically, Mayor Butler argues that because Mississippi only 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,” thus violating the constitutional requirements of Section 273(3). Essentially, Mayor Butler argues that as Section 273(3) now stands, there is no possible way for the citizens of Mississippi to propose a constitutional ballot initiative.
Before we continue, a brief history lesson. Every 10 years, the United States government takes a census. The federal government uses this census data to reapportion the number of seats in the House of Representatives. States then revise their legislative districts (called redistricting) to comply with the U.S. Constitutional mandate of “one person, one vote.” Following the 2000 census, Mississippi’s delegation to the House of Representatives was reduced from five representatives to four representatives. In 2002, a panel of federal judges in Smith v. Clark, 189 F. Supp. 2d 512 (S.D. Miss. 2002) issued a congressional redistricting plan for the State of Mississippi, reducing the number of districts from five to four, and ordered the Secretary of State, Attorney General, and Governor to adopt the Court’s redistricting plan in its follow-up ruling in Smith v. Clark, 189 F. Supp. 2d 548 (S.D. Miss. 2002).
On numerous occasions thereafter, resolutions have been put before the Mississippi legislature that would remedy the discrepancy between Section 273(3)’s 1/5th requirement and the State’s four legislative districts. However, none of the resolutions were passed and, therefore, 273(3) remains unchanged.
In his Answer to Mayor Butler’s Emergency Petition, the Mississippi Secretary of State, Michael Watson, counters that “[w]hen read together as a whole, the intent and purpose of the three provisions [of Section 273(3)] is to preserve the people of the State’s substantive right to enact ballot initiatives, and provide a manner to do so that ensures proposed initiatives have support from electors all over the State.” Consistent with that interpretation, Secretary of State Watson contends that his predecessor’s analysis of the 1/5th provision of Section 273(3), as requiring “signatures from each of the five congressional districts as they existed in the year 2000”, preserves that right and satisfies the constitutional requirements of Section 273(3).
Secretary of State Watson also argues that Mayor Butler’s inexcusable delay (also called “laches”) in filing her Emergency Petition independently defeats her claim. Ballot Initiative No. 65 was first filed on July 30, 2018, going through multiple stages of review and approval over the next twenty-six months. Secretary of State Watson argues that Mayor Butler could have filed suit and challenged Ballot Initiative No. 65 at any point during the process, but instead elected to file suit on October 26, 2020, nine days before the November 3, 2020 election. Secretary of State Watson argues that such an inexcusable delay has prejudiced the State, the voters, and the public at large, and should result in the dismissal of Mayor Butler’s Emergency Petition.
The importance of this issue has attracted a substantial amount of attention around the State. As of the drafting of this article, the following parties have filed motions to intervene or requested the Court’s permission to file briefs either in support of or in opposition to Mayor Butler’s Emergency Petition:
• Ashley Ann Durval, Ballot Initiative No. 65 Sponsor
• Angie Calhoun, Ballot Initiative No. 65 Supporter
• Mississippi Department of Health
• Mississippi State Medical Association
• American Medical Association
• Mississippi Sheriffs’ Association
• Angela Hill, State Senator
• Kathy Chism, State Senator
• Jill Ford, State Representative
• Mississippi Municipal League, Inc.
The full text of Ballot Initiative No. 65 can be found at www.sos.ms.gov/elections-voting/pages/initiative-measure-65.aspx.
You can follow along with the proceedings, and read the petitions, pleadings, briefs, and motions filed by Mayor Butler, Secretary of State Watson, and other interested parties, at courts.ms.gov/index.php?cn=92749#dispArea.
The attorneys at Biggs, Pettis, Ingram & Solop, PLLC are ready, should Ballot Initiative No. 65 survive Mayor Butler’s challenge, to assist you and your businesses with any compliance, regulatory, or licensing issues that may arise, and to answer any questions that you may have.