Gray Edmondson previously discussed the tax considerations for Initiative Measure 65 (“Initiate 65”) and medical marijuana in Mississippi following the approval by a majority of voters in November 2020. However, it appears that Mississippians will have a while to wait before medical marijuana is actually legalized in Mississippi. On May 14, 2021, the Mississippi Supreme Court ruled 6 to 3 in Butler v. Watson[1] that the Mississippi Secretary of State’s (“Secretary of State”) certification of Initiative 65 is reversed and subsequent proceedings on it are void. This decision determined that no referendum in Mississippi can be constitutionally valid without a change in the law. As such, while the case directly addressed Initiative 65, it effectively kills any further ballot initiatives until the initiative process is changed.
Background
Each State’s number of representatives in the United States House of Representatives (“US House”) is apportioned based on a census taken every ten years.[2] In 2000, when the United States House of Representatives reallocated the statutorily limited 435 seats, Mississippi’s allocation was decreased from five seats to four seats. As a result, from 2002 until the present, Mississippi has only elected four congressional representatives to the US House.
The Mississippi Constitution of 1890 (“Mississippi Constitution”) provides two vehicles for its amendment. First, the Mississippi Legislature (“Legislature”) may propose amendments that are then voted upon by the qualified electors of the State. Second, Article 15, Section 273(3), of the Mississippi Constitution (“Section 273(3)”) reserved the people’s the power to propose and enact constitutional amendments by initiative (full language discussed below).
On July 30, 2018, Ashley Durval filed a petition for an initiative measure under Section 273(3), enrolled as Initiative 65 by the office of the former Secretary of State Delbert Hosemann. Sometime in January of 2020, the Secretary of State’s Office delivered the initiative measure to the Legislature. The Legislature proposed a legislative alternative to Initiative 65, conveniently titled “Initiative 65A”. Both were placed on the ballot approved by the State Board of Election Commissioners, composed of the Governor, the Attorney General, and the Secretary of State in September of 2020. On October 26, 2020, Mayor Mary Hawkins Butler (“Butler”), in her individual and official capacities, joined by the City of Madison (“City” and together with Butler “Petitioners”), filed an Emergency Petition before the Court seeking review of the sufficiency of the petition for Initiative 65. Initiative 65 (and the legislative alternative) stayed on the ballot for the November 2020 elections and passed with 68.52% of the electorate voting in favor of at least one of the medical marijuana proposals of whom 73.7% supported Initiative 65.
Jurisdiction and Standing
The Court first addressed the issue of jurisdiction. After a brief discussion of Article 15, section 273(9), of the Mississippi Constitution, the Court concluded that it had exclusive subject matter jurisdiction, but only regrading the decision of the Secretary of State finding that the Initiative 65 petition was sufficient to be placed on the ballot.
The Court then discussed whether the Petitioners had standing. As stated above, Butler filed the petition both individually and in her official capacities. The Secretary of State did not contest Butler’s individual standing since the Court settled the issue of an individual’s standing on such matters decades ago.[3] However the Secretary of State argued that the City lacked standing because it did not share in the same procedural injury, i.e., the allegedly improperly certified petition, that gave rise to voter standing, but failed to address the specific injury alleged by the City. Unfortunately for the Secretary of State, the Court found the City’s argument that Initiative 65 would result in the City experiencing an adverse effect different from any adverse effect suffered by the general public, due to it restricting its zoning authority, compelling. As such, the Court ruled that the City also had standing.
Laches
The Court then considered the Secretary of State’s argument that both his office and the public were disadvantaged by the delay in the Petitioners’ filing, and thus the equitable doctrine of laches applied. Laches is defined as “[u]nreasonable delay in pursuing a right or claim—almost always an equitable one—in a way that prejudices the party against whom relief is sought.”[4] The Court determined that the Secretary of State failed to identify in the record any factual support for his laches argument, and based on the facts provided to the Court, determined that Butler acted within a reasonable time to file suit. The Court also determined that the Secretary of State has no vested interest beyond the constitutional conduct of his office. In short, holding that whether the Secretary of State properly passed on the sufficiency of the petition or improperly passed on the sufficiency of the petition did not change the condition of the Secretary of State’s office whatsoever, and therefore his office had not been disadvantaged by the petition. Accordingly, the Court found the Secretary of State’s laches argument without merit.
Reduction in Congressional Districts
Now we come to the crux of the petition and the main issue before the Court, whether the reduction in congressional seats allocated to Mississippi due to the 2000 census rendered Section 273(3) unworkable and inoperable on its face. The Court began by citing several cases holding that the terms of a constitution should be interpreted based on their plain language[5] and that courts should not “take liberties”[6] with its text. It then discussed the actual text of Section 273(3) and how it functioned prior to the 2000 census. Section 273(3) provides as follows:
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.
As interpreted by the Court, the effect of the language, as written, is that at least, and no more than, 20% of the required 12% (2%) must come from each congressional district. As there are now only four congressional districts, the maximum number of signatures that could be acquired is 10% (2% x 4), since any amount of approval beyond 2% for each district would be disregarded. The Court then discussed the multiple attempts to amend Section 273(3) over the years and a 2009 opinion by the then Mississippi Attorney General stating that it is mathematically impossible to satisfy the requirements of Section 273(3) using just four districts.[7]
Definition of Congressional District
The Court next considered the argument by the Secretary of State that agreeing with the Petitioners required the Court to insert the word “current” into the text of Section 273(3), and the argument by Justice Chamberlin that Section 273(3) mandates by its own terms alone the use of the 1992 congressional districts. The Court began by defining “Congressional district” as “a territorial division of a state from which a member of the U.S. House of Representatives is elected,”[8] and by stating that such a definition was simple, unambiguous, and not open to multiple interpretations.
The Petitioners countered the Secretary of State’s argument by analogizing the language of Section 273(3) to the repeated use of “any county” in the Mississippi Constitution.[9] They pointed out that Mississippi county lines have changed, and new counties have been created since 1890, and therefore the ordinary meaning of “congressional district” included the understanding that they would change over time. The Court, after considering the definition, the Fourteenth Amendment, and the wording of several sections of the Mississippi Constitution, including Article 8, Section 213A, in which drafters acknowledged the fluid nature of districts by including the words “now existing,” rejected the Secretary of State’s argument. Justice Chamberlin’s argument also failed to persuade the Court, which determined that the language of Section 273(3) disables itself when there are less than five congressional districts, and no interpretation of the term “congressional district” or the twenty percent cap allowed for Section 273(3) to continue functioning absent amendment.
Holding, Dissent, and Response
The Court held that, due to Section 273(3) being inoperable with four congressional districts, the petition submitted to the Secretary of State which sought to place Initiative 65 on the ballot for the November 3, 2020, general election failed to meet the statutory requirements to do so. Accordingly, the Secretary of State’s decision to place Initiative 65 on the ballot was in violation of the Mississippi Constitution. The Court granted the petition, reversed the Secretary of State’s certification of Initiative 65, and held that any subsequent proceedings on it are void.
Justice James D. Maxwell II, joined in part by Justice Robert P. Chamberlin, wrote a dissenting opinion in which he strongly disagreed with the holding that the Secretary of State acted in violation of the Mississippi Constitution by placing Initiative 65 on the ballot. While the dissent was unable to convince the majority, it did make several persuasive arguments, many of which were specifically addressed in the majority opinion. Justice Maxwell stated, “I am also hard pressed to see how a federal court’s almost twenty-year-old injunction, aimed solely at federal congressional elections, has now somehow unintentionally destroyed Mississippi’s constitutional citizen-based ballot-initiative process. But that is exactly what the majority is saying.” Justice Chamberlain, in addressing the implication by the majority’s holding that the drafters of Section 273(3) must have intended for the ballot-initiative process to cease functioning in the event Mississippi ever lost a seat in the US House stated, “[the majority’s] holding does not avoid absurdity; rather, it invites it.”
In a May 14 statement, the Mississippi Medical Marijuana Association said the decision was devastating, not only for patients but also for voters. Ken Newburger, Executive Director for the Mississippi Medical Marijuana Association stated, “The Court ignored existing case law and prior decisions. Their reasoning ignores the intent of the constitution and takes away people’s constitutional right. It’s a sad day for Mississippi when the Supreme Court communicates to a vast majority of the voters that their vote doesn’t matter.” Mr. Newburger didn’t specify what existing case law or prior decisions the Court supposedly ignored.
Conclusion and Implications
While the declaration by Mr. Newburger is certainly a bold statement, the sentiment is shared by many Mississippians. Initiative 65 passed by a strong majority but is now ruled as null due to what some clearly believe to be an erroneous reading of the Mississippi Constitution or, more likely, a technical oversight by the drafters and our legislature in not amending Section 273(3). While one might think that such an overwhelming public opinion on the matter would result in pressure on the Legislature to propose an act similar to Initiative 65, this is not necessarily the case.
As stated by Justice Maxwell in his dissent, this holding is not limited to Initiative 65, but rather completely invalidates Mississippi’s constitutional citizen-based ballot-initiative process. It also calls into question the legal validity of any other initiatives passed after 2000. There are both pending initiatives (selection of a new state flag, Medicaid expansion, and early voting) as well as already-passed initiatives, such as those related to in person early voting and eminent domain (see Initiatives 27 and 31, respectively), that may be implicated by the holding. One of the most frustrating results of the holding, is that it makes clear the fact that Mississippians can’t directly take action to amend Section 273(3). Rather, we have to rely on the Legislature if we desire the citizens of Mississippi to once again retain the power to amend the Mississippi Constitution via initiative.
[1] Initiative Measure No. 65: Mayor Butler v. Watson, No. 2020-IA-01199-SCT (Miss. May 14, 2021).
[2] Const. art. II, § 2., later modified by U.S. Const. amend. XIV, § 2.
[3] See Power v. Robertson, 130 Miss. 188, 93 So. 769, 773 (1922) “any qualified elector has a right to question the sufficiency and validity of the petition.”
[4] Laches, Black’s Law Dictionary (11th ed. 2019).
[5] Town of Sumner v. Ill. Cent. R.R. Co., 236 Miss. 342, 111 So. 2d 230, 233 (1959) (quoting State v. Mobile, J. & K.C.R. Co., 86 Miss. 172, 38 So. 732, 735 (1905)).
[6] National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 647 (1949) (Frankfurter, J., dissenting).
[7] Miss. Att’y Gen. Op., No. 2009-00001, 2009 WL 367638, Hosemann, at *3 (Jan. 9, 2009)
(emphasis added).
[8] Congressional District, Merriam-Webster’s Collegiate Dictionary (11th ed. 2003).
[9] See, e.g., Miss. Const. art 5, §§ 135, 139, 140; art. 6, § 171; art. 8, § 206; art. 14, § 260.
