Update on Medical Marijuana in Mississippi: INITIATIVE 65 CHALLENGE UNDER JUDICIAL ADVISEMENT

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Yesterday, the Mississippi Supreme Court held oral argument in the City of Madison’s challenge to Initiative 65, Mary Hawkins Butler v. Michael Watson, 2020-IA-01199-SCT. Madison Mayor Mary Hawkins Butler asked the court to invalidate Initiative 65. The Mississippi Constitution requires that no more than one-fifth of the total signatures to place an initiative on the ballot may come from any one congressional district. According to Butler, because Mississippi now has only four congressional districts, it is mathematically impossible to collect the correct proportion of signatures. 

Watson argued that current Mississippi law still allocates five congressional districts for purposes other than electing U.S. representatives. And while a prior federal court decision has limited the number of congressional districts to four for purposes of electing U.S. representatives, that decision did not change the process of using the five congressional districts under state law for the initiative process. According to Watson, Butler’s theory disregards the Legislature’s intent to provide citizens an avenue to propose constitutional amendments. Watson asked the court to not adopt Butler’s position because it would eradicate the citizens’ ability to place initiatives on the ballot unless and until the Legislature amends the section of the Mississippi Constitution at issue.

The bench was hot during oral argument, meaning the justices were highly active in asking questions. A few justices seemed to favor Butler’s position, and a few seemed to favor Watson’s. But most justices either held their cards close or remained silent throughout oral argument. The court clarified that its decision will not be based on any justice’s personal view of Initiative 65 but will be based solely on the constitutional requirements for placing any initiative on the ballot. To that end, the court, as well as the attorneys presenting arguments, avoided expressing an opinion about medical marijuana in general or the substance of Initiative 65.    

After oral argument, the court reiterated that the case is on expedited review and announced it was taking the case under advisement. Based on the Mississippi Supreme Court’s recent trends with expedited review, we expect the court to hand down a decision by late May.

In the event the Mississippi Supreme Court does not strike down Initiative 65, the Mississippi Department of Health is still on track to launch the state’s medical marijuana program in July and begin issuing licenses by August 15, 2021.

If the Mississippi Supreme Court strikes down Initiative 65, a medical marijuana program will not likely move forward without some form of legislative activity – through the legislature passing its own medical marijuana bill or by amending the constitution’s sections regarding citizen ballot initiatives to account for the existing four congressional districts.