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Daily Brew: May 18, 2021
May 18, 2021
Mississippi Supreme Court overturns 2020 medical marijuana initiative, says the state's initiative process can't be used
On May 14, the Mississippi Supreme Court ruled 6-3 to overturn Ballot Measure 1 (Initiative 65), the medical marijuana initiative voters approved 74% - 26% in 2020. This ruling has a variety of impacts on the initiative & referendum world. I turned to Josh Altic, our ballot measures project editor, to help me better understand the implications of the ruling. My questions are in italics, with his responses indented.
So, what exactly did the court rule?
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 ruling agreed with plaintiffs that the requirements in the constitution for an initiative petition are mathematically impossible to meet and have been since the state's congressional districts were reduced from five to four in 2001.
Can you explain what the initiative was designed to do?
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. The measure would have allowed patients to possess up to 2.5 ounces of medical marijuana at one time. Marijuana sales would have been taxed at the state's 7% sales tax rate.
What happened leading up to the court’s decision?
On Oct. 26, 2020, the City of Madison 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 the secretary of state unlawfully certified the measure in violation of the Mississippi Constitution. Section 273 of Article 15 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."
Plaintiffs alleged, "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.”
How long has that constitutional requirement been in place?
Voters approved a constitutional amendment in 1992 that required initiative petition signatures to be collected evenly from all five congressional districts that existed at the time. But after the 2000 census, Mississippi lost a congressional district.
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.
Since the constitutional requirements for an initiative petition are mathematically impossible to meet and have been since 2001, have other initiatives been approved since the 2001 reapportionment?
Yes. Two other initiatives (both in 2011) made it to the ballot. Initiative 27 was designed to require photo identification to vote. Initiative 31 prohibited the state 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.
What exactly did the court rule?
"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."
What would need to happen before people used Mississippi’s initiative process again?
Well, the state could gain another congressional seat after the next decennial reapportionment (2030). Short of that, the court ruling said that the constitution would have to be amended. So the legislature would have to refer a constitutional amendment to the ballot and voters would have to approve it.
What happens to the two previously approved initiatives?
We don’t know. The court ruling did not overturn those initiatives. All we know is that the same exact reasoning used to overturn the 2020 medical marijuana initiative could be applied to the 2011 initiatives.
Was there a dissenting opinion?
Yes. Justices Jim Kitchens, Jimmy Maxwell, and Robert Chamberlain dissented. Chamberlain’s dissenting opinion read in part:
"[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."
Wasn’t there a recreational marijuana legalization initiative filed targeting the 2022 ballot in the state?
Yes. Eleven initiatives have been filed for the 2022 ballot in Mississippi, including recreational marijuana legalization, Medicaid expansion, term limits, open primaries, and redistricting. None have been certified for the ballot.
We’ve published two deep dives into state supreme courts during the last year.
- According to our recent Ballotpedia Courts: Determiners and Dissenters study, the Mississippi Supreme Court decided five cases by a 6-3 ruling in 2020 out of 163 total decisions. The Mississippi Supreme Court issued the eighth lowest percentage of unanimous supreme court decisions among all state supreme courts.
- As published in our Ballotpedia Courts: State Partisanship study, the Mississippi Supreme Court had two justices with Democratic-affilations (Justices Kitchens and Leslie King) and seven with Republican-affiliations.
For updates like this story and much more, click here to subscribe to our State Ballot Measure Monthly series.
Federal Register tops 26,000 pages
From time to time we update you on the Federal Register, a daily journal of federal government activity. Here’s the latest.
From May 10 through May 14, the Federal Register added 1,936 pages for a year-to-date total of 26,632 pages. By this point of Trump’s first year as president, the year-to-date total was 22,278 pages.
This week’s Federal Register included the following 528 documents:
- 408 notices (information about federal agency activities)
- 12 presidential documents (proclamations and announcements from the Office of the President)
- 48 proposed rules (potential new agency regulations)
- 60 final rules (a federal regulation with a scheduled effective date)
The Federal Register hit an all-time high of 95,894 pages in 2016. The Biden administration has issued 17 significant proposed rules and nine significant final rules as of May 14.
Ballotpedia maintains page counts and other information about the Federal Register as part of its Administrative State Project. Click the link below to learn more.
Candidate filing deadline for Ohio’s 15th Congressional District special election passes
Yesterday, May 17, was the filing deadline to run for the special election for Ohio’s 15th Congressional District.
The special election was called after Steve Stivers (R) left office to become the President and CEO of the Ohio Chamber of Commerce, effective May 16. Stivers served from 2011 to 2021. The primary is scheduled for Aug. 3, and the general election is set for Nov. 2.
After Stivers’ resignation, the partisan breakdown of Ohio's U.S. House delegation is three Democrats, 11 Republicans, and two vacancies. The U.S. House has 219 Democrats, 211 Republicans, and five vacancies. A majority in the chamber requires 218 seats.
As of May 14, seven special elections have been called during the 117th Congress. From the 113th Congress to the 116th Congress, 50 special elections were held.
Click the link below to view the list of declared candidates in this election.
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