Government officials from two traditionally conservatives states are defending voter-approved marijuana reform initiatives against legal challenges.
The secretaries of state, along with the attorneys general, from both Mississippi and South Dakota recently filed responses to lawsuits seeking to invalidate their states’ measures legalizing cannabis for medical and recreational purposes, respectively.
Prior to Election Day, the mayor of the city of Madison, Mississippi asked the state Supreme Court to nullify the cannabis reform measure because, she argued, it was unlawfully placed before voters. The suit did not weigh in on the merits of the proposal itself.
But while the plaintiff argued that the legalization proposal was invalid because of a state statute that dictates the percentage of signatures required per district to qualify a ballot initiative, the attorney general’s office submitted a filing on Monday for Secretary of State Michael Watson that contests the basis of the suit.
Last month, in an earlier round of briefs, the officials characterized the legal challenge as “woefully untimely.”
Madison’s challenge cites a state law stipulating that “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.” But that policy went into effect when Mississippi had five congressional districts, and that’s since been reduced to four, making it mathematically impossible to adhere to.
In the latest filing, the attorney general said the “City’s claimed standing is disconnected from the only alleged injury at issue and properly before this Court: an alleged procedural injury, shared only by citizens and electors, allegedly caused by a perceived flaw in the signature gathering requirements of the initiative petition process.”
The top official further argued that while “four congressional districts exist in Mississippi under a federal injunction for congressional elections,” there are five congressional districts that “exist under state law and may be used for anything but congressional elections.”
Meanwhile, the state Health Department, which is responsible for overseeing the implementation of the new voter-approved cannabis law, filed its own brief siding with Madison’s challenge, arguing that the city’s objections represent “only the tip of the iceberg” with the measure’s problems. The regulators said legalizing cannabis “conflicts with existing state and federal law” and would to transform the department “into something it is not.”
Meanwhile, in South Dakota, another legal challenge against the constitutionality of a legalization initiative is playing out. In this case, plaintiffs are claiming that the recreational marijuana measure violates a state statute requiring that proposals that appear on the ballot on deal with a single subject.
Pennington County Sheriff Kevin Thom and state Highway Patrol Superintendent Col. Rick Miller initially filed the suit last month. But the secretary of state and pro-reform campaign South Dakotans for Better Marijuana Laws are pushing back and submitted detailed responses last week.
“While different states have adopted a variety of tests to determine when a constitutional change is an amendment or a revision, they have consistently held that the authority of the citizens to alter their governing document is paramount; and the courts should only subvert the people’s will in the narrowest of circumstances,” the attorney general’s office wrote in a memo on the state’s behalf.
“It is inconsequential that Amendment A deals with recreational marijuana, medical marijuana and hemp separately,” the memo says, referencing the single-subject argument. “They are all part of the same ‘group or class’ – cannabis. In other words: cannabis is cannabis is cannabis; just like corn is corn is corn.”
South Dakotans for Better Marijuana Laws, which ran the campaign to pass the legalization measure, said in a separate filing, first reported by The Rapid City Journal, that because Thom and Miller are state officials, statute precludes them from filing suit against the state in the first place.
While voters in the state also approved a separate medical cannabis initiative on Election Day, that measure is not being challenge in the law enforcement driving-suit, which is being paid for in part with state funds.
Every single cannabis reform initiative that made the November ballot was approved by voters.
Advocates have pointed out that marijuana reform opponents are increasingly relying on the courts in efforts to quash legalization measures. That’s been especially true in 2020, which showed strong and bipartisan support for the policy change.
Beyond Mississippi and South Dakota, a Nebraska sheriff successfully litigated to get a medical cannabis legalization initiative kicked off the state ballot prior to Election Day despite activists having collected enough signatures to qualify.
A legalization opponent in Montana is arguing that a voter-approved statutory proposal to legalize marijuana unlawfully appropriates funds, violating a portion of the state Constitution that prohibits such activity from being included in a citizen initiative.
The state Supreme Court declined to take the case in October, but it did not rule on the merits. Instead, it said the filers failed to establish the urgency needed to skip the lower court adjudication process, which they are now pursuing.
The plaintiff in this case separately persuaded the Montana Commissioner of Political Practices to file a formal referral for prosecution against a group that made significant financial contributions to the legalization campaign.