5/18/2021
By Ivan Pereira
A ruling last week by the Mississippi Supreme Court has left law experts and state leaders in a state of confusion over the future of medical marijuana, which was overwhelmingly supported by voters in a ballot initiative in November.
The judge’s decision could also have a major legal impact on 20 years of state initiatives, according to a legal expert.
On Friday, the Mississippi Supreme Court ruled 6-3 in favor of Madison Mayor Mary Hawkins Butler who sued the state over the November 2020 ballot Initiative 65, which establishes a legal medical marijuana program. The measure passed with roughly 74% of the overall vote, and medical marijuana dispensaries were slated to open this year.
The court’s justices, however, said the ballot measure was unconstitutional due to a loophole that they said was beyond their control.
The laws on ballot initiatives, which were written in 1990, state they can only be valid if a person or group registering the proposal gets one-fifth of their signatures from each of the state’s five congressional districts, the judges noted in their 58-page ruling. In 2001, Mississippi lost one congressional seat due to population loss, but the court still had to follow the law, despite its impossibility, Associate Justice Josiah D. Coleman wrote in his ruling.
“We find ourselves presented with the question squarely before us and nowhere to turn but to its answer,” he wrote.
State elected officials on both sides of the aisle, who were in support of medical marijuana, have called on Gov. Tate Reeves to hold a special session to address the medical marijuana issue and future ballot initiatives.
Reeves has so far been noncommittal on making a decision.
“The Governor is evaluating all available options at this time,” Reeves’ press secretary, Bailey Martin, told ABC News in a statement.
The Mississippi state Senate passed two previous bills that legalized medical marijuana, however, they didn’t move forward in the Mississippi House.
House Speaker Phillip Gunn said in a statement Monday he is open to the special session.
“If the legislature does not act on an issue that the people of Mississippi want, then the people need a mechanism to change the law. I support the governor calling us into a special session to protect this important right of the people,” the Republican representative said in a statement.
Democratic state Rep. John Hines told Jackson ABC affiliate WAPT Tuesday that he was shocked that the courts ruled against the electorate and said that Reeves must act to rectify the situation.
“The governor’s in the driver’s seat when we’re out of session,” he told WAPT. “It’s his prerogative to call a session or not call a session.”
Republican state Sen. Brice Wiggins told ABC News that any legislative action on future ballot initiatives is going to take more time.
“That is going to be a little more difficult because we can be starting from scratch,” he told ABC News.
Legal experts say even if the state legislature resolves the medical marijuana issue, the court ruling opens up the possibility of major legal challenges against previous ballot initiatives.
Eight initiatives were approved by the electorate following the 2001 redistricting, according to state voter records. One of the most controversial ballot initiatives during that period was the 2011 Initiative 27 that required voters to show ID at the polls.
As of Tuesday, no suit or court challenge has been filed against any of the previous ballot measures.
Ronald J. Rychlak, a distinguished professor at the University of the Mississippi School of Law, told ABC News that potential challenges to the voter ID initiative and other initiatives would be a test of the laches doctrine.
Under the legal principle, challenges could be considered moot since the challenger didn’t assert their right quickly enough, Rychlak explained.
“You can certainly argue, the question is, ‘Would it carry the day?'” he told ABC News. “The law has been in effect for 10 years; it has not been undone. It’s going to be hard to challenge the laws that have been in place for that long.”
Rychlak reiterated that last week’s court decision has left future ballot initiatives “dead in the water” and it’s important that the state legislature addresses the constitutional loophole as soon as possible.
While he noted that the state legislature should be the primary body for making new laws, Rychlak contended that the voters should have a legal option to make changes.
“It’s a fallback measure, but it’s good to have a fallback measure,” Rychlak said of state ballot measures.
