The Mississippi Supreme Court on Friday struck down a medical marijuana initiative, Initiative 65, that succeeded at the polls in the November election, overturning the will of nearly 70% of the state’s electorate in the process. The Supreme Court justices ruled in a 6 to 3 decision that Mississippi’s voter initiative process is constitutionally flawed, effectively dooming any future voter-led ballot measures until a remedy is passed by the legislature.

In November, Mississippi voters approved Initiative 65, a measure that would have legalized medical marijuana use, production, and sales. To qualify the initiative for the statewide ballot, supporters of the measure collected enough voter signatures in each of the five congressional districts that existed when Mississippi’s initiative process was drafted in the 1990s. Under that constitutional provision, Section 273, no more than 20% of the signatures necessary to qualify initiatives for the ballot could come from any single congressional district.

However, Mississippi now has only four congressional districts, after losing one seat in the House of Representatives following the 2000 census. So, supporters of the ballot initiative relied on a legal opinion previously issued by former Mississippi Attorney Jim Hood and collected 20% of the required total from each of the five former congressional districts. Initiative 65 was then certified for the 2020 ballot by the Mississippi secretary of state.

Voters Approved Initiative 65 In November

In the general election, more than 68% voted in favor of legalizing medical marijuana in Mississippi. In a second ballot question, nearly 74% of voters chose Initiative 65 over a competing measure placed on the ballot by the state legislature in response to the voter initiative. 

Only days before the election, Mayor Mary Hawkins Butler of Madison, Mississippi filed suit against the initiative, arguing that only 20% of the signatures from each of the current congressional districts should be counted. Butler opposed Initiative 65 because of provisions that limited control over marijuana businesses by local governments. On Friday, the state Supreme Court decided in Butler’s favor, ruling that Initiative 65 should not have been placed on the ballot and is invalid.

“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,” Justice Josiah Coleman wrote for the six-justice majority. “To work in today’s reality, it will need amending — something that lies beyond the power of the Supreme Court.”

In a dissenting opinion, Justice James Maxwell wrote that the majority’s interpretation of the section as it is written “judicially kills Mississippi’s citizen initiative process.” 

Maxwell went on to write that the majority opinion “confidently and correctly points out” that the Supreme Court does not have the power to amend the state constitution.

“Yet the majority does just that — stepping completely outside of Mississippi law — to employ an interpretation that not only amends but judicially kills Mississippi’s citizen initiative process,” Maxwell wrote.

Ruling Dashes Patients’ Hopes

After the approval of Initiative 65 in November, the Mississippi State Department of Health began drafting regulations for the medical marijuana program as required by the measure, while entrepreneurs interested in participating in what they believed to be a newly legal industry began investing in cultivation and retail infrastructure. The Supreme Court ruling dashes the hopes of patients who were supposed to have access to medicinal cannabis later this year.

“Today is a cruel and tragic day for sick and suffering people in Mississippi,” said Matthew Schweich, deputy director of cannabis policy reform advocacy group the Marijuana Policy Project. “As a result, tens of thousands of Mississippians with debilitating health conditions will be denied safe, legal access to something that can alleviate their pain and improve their quality of life.”

Ken Newburger, executive director of the Mississippi Medical Marijuana Association, said the justices overturned the will of the state’s voters.

“Patients will now continue the suffering that so many Mississippians voted to end,” Newburger said.

The Supreme Court did not make note of two ballot measures approved in 2011 under the process they have now ruled is unconstitutional. The court’s ruling effectively negates any future attempts at voter initiatives in Mississippi, including current efforts to expand Medicaid and another that would authorize early voting. At least seven bills to rectify the initiative process following the loss of the fifth congressional seat have been proposed over the years, but none have been approved by the state legislature.