Mississippi struck down entire ballot initiative process to prevent medical marijuana

In a brutal loss for direct democracy in Mississippi, the state's supreme court struck down a ballot amendment on Friday that legalized medical marijuana in the state. But the ruling didn't stop there. Invoking a technical flaw in the law, the court invalidated the entire process for amending the state's constitution by popular vote.

"The killing of our ballot initiative process means that Mississippi is, definitively, the state with the least democracy, the most restricted ballot access, and where voters' voices matter least when it comes to the deciding our future," said Ashton Pittman, a reporter at the Mississippi Free Press.

"The Mississippi Supreme Court just overturned the will of the people of Mississippi," read a statement from Medical Marijuana MS, which organized Initiative 65 that would legalize the use of the drug. "Patients will now continue the suffering that so many Mississippians voted to end."

About 73 percent of voters support legalizing medical marijuana, according to Pittman.

At the heart of the court's decision is a crucial flaw in the process that gives voters the power to amend the constitution by popular vote. According to the law, organizers for ballot measures have to collect signatures from the five different congressional districts in the state. But since the 2000 census, Mississippi dropped from having five districts to having only four.

So in the court's understanding of the ballot approval process, it's now impossible to legally get an amendment on the ballot, because the requirements demand organizers obtain signatures from a district that no longer exists.

"This is absolutely stunning," said lawyer Tyler Quinn Yeargain. "In the face of an outdated constitutional provision, the Mississippi Supreme Court just threw up its hands, killing the state's voter-initiated amendment process."

In the 6-3 majority's ruling, the court acted as though it was completely bound to reach its conclusion. It even suggested that the drafters of the ballot process may have intended to render it invalid should the state ever lose a congressional district, a claim that strains credulity to the breaking point:

Pursuant to the duty imposed on us by article 15, section 273(9), of the Mississippi Constitution, we hold that the petition submitted to the Secretary of State seeking to place Initiative 65 on the ballot for the November 3, 2020, general election was insufficient. 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.

It said that for the process to be fixed, the state's constitution must be amended. But of course, that's now impossible to do by ballot measure, so it will only happen if the legislature permits it.

Despite the majority's suggestion, this result was not inevitable. The minority argued in a dissent that Mississippi law still has five congressional districts on the books, even though they are not recognized by the federal courts. But since they exist under state law, and the requirement that ballot amendments garner signatures from each of the five districts is also a matter of state law, the dissent argues that it would be reasonable to uphold the ballot process as lawful.

"I respectfully suggest we look to Mississippi law. With this novel approach in mind, I point out that under current Mississippi law—whether we like it or not—there are five congressional districts," wrote Justice James Maxwell in the dissent.

He criticized the majority for doing exactly what it claimed to oppose: "The majority confidently and correctly points out that '[n]owhere therein does the Constitution allow amendment by the Supreme Court.' ...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. While the majority admits that our Constitution should not be 'expanded or extended beyond its settled intent and meaning by any court[,]' it actively injects a federal court's injunction into our Constitution—an injunction that was in no shape, form, or fashion aimed at the initiative process."

Pittman, the reporter, noted on Twitter that the decision is already inspiring outrage: "There is A LOT of anger among conservative and liberal Mississippians on my social media feeds right now. I'm not seeing any regular Mississippians who are happy about this. A lot of cross-partisan outrage, though."

Observers worry this decision will completely block hoped-for amendments that would expand voting access and Medicaid eligibility.