If Mississippi did not elect its Supreme Court judges, you could more confidently predict what they will decide about the lawsuit challenging the voters’ decision last year to legalize medical marijuana.
The dispute comes down to the specific language lawmakers used in the 1992 constitutional amendment that established the rules for citizen-led initiatives and what they intended by those words.
The intent seems fairly obvious: Lawmakers did not want to allow one populous area of Mississippi to force a statewide referendum. Rather, they wanted any signature gatherers to demonstrate that the provision they were seeking to add to the state constitution had widespread support.
Thus, the rules required that the total number of signatures be evenly divided among the state’s congressional districts, of which there were five at the time. Not only did this requirement — and some others in the law — reduce how many petition drives would ultimately get to the ballot stage. It also eliminated the chance that proposed changes to the constitution could be driven by solely sectional interests. Both of these were obvious legislative desires.
Madison Mayor Mary Hawkins Butler and other opponents of medical marijuana, however, are hoping a majority of the Supreme Court will ignore that. As they argued before the justices this past week, opponents are hinging those hopes on a technicality: namely, that since Mississippi has only four congressional districts now, it is mathematically impossible to meet the requirements of the law that no more than one-fifth of the signatures can come from any single current congressional district.
Petition gatherers have been told otherwise for about 20 years. Three successive secretaries of state — two Republicans and one Democrat — have said that as long as the signatures were evenly gathered between the five congressional districts that existed at the time that the initiative law was adopted, that would meet the law’s requirements.
In 2011, two initiatives that followed those rules — one requiring photo ID at the polls, the other restricting the government’s use of eminent domain to acquire private land — were passed by voters. Both of those initiatives, unlike medical marijuana, were popular with conservatives, and neither of them faced the claim that the process of getting them on the ballot was illegal.
If the Supreme Court sides with the plaintiffs in the medical marijuana case, it would kill the initiative process as it currently exists in Mississippi. It could also jeopardize those two previously successful initiatives. How could the court throw out medical marijuana on a technicality and not apply that same technicality to the other two?
Matt Steffey, a frequently quoted professor at the Mississippi College School of Law, sees a cynical path for the court to apply a double standard. He has conjectured that the justices might rule the difference is that Butler’s lawsuit was filed to try to stop a referendum, while any lawsuit to roll back voter ID, for example, would be coming at least a decade after the referendum had been held.
This case illustrates the problem with Mississippi’s direct election of high court judges, something the majority of states don’t do.
Instead of just focusing on what the 1992 law says, and what at the time was the intent of lawmakers when they put “people power” to a vote of the people, the justices also are thinking of the possible political fallout from whatever determination they make.
Most of those in local government and in state government don’t want medical marijuana to come to pass, or they want at least a bigger slice of the action. Cities, such as Butler’s Madison, don’t want to give up the power to regulate a business within their boundaries. State lawmakers want a do-over, so they can pass a law that creates the industry but with greater legislative control and higher taxation. The state Health Department says its plate is more than full dealing with COVID-19, and it doesn’t want to take on the regulation of medical marijuana. That’s a powerful coalition of opposition.
But the justices have to also weigh what might be the political ramifications of stopping medical marijuana just a couple of months short of its implementation.
November’s vote in favor of allowing the regulated sale of the drug to treat a number of medical conditions was a landslide, with three out of four voters supporting the initiative.
If the Supreme Court thwarts such a clear mandate, any justices voting to do so could face repercussions the next time they go before voters. There were some deep pockets that bankrolled the medical marijuana initiative, and they could just as easily pony up to try to unseat a Supreme Court justice who crossed them.
The average observer might not be able to follow the somewhat arcane legal argument before the court, but most will grasp the political tug-of-war at play here.
- Contact Tim Kalich at 581-7243 or tkalich@gwcommonwealth.com.
