In a new state Supreme Court filing, the Mississippi secretary of state and attorney general are condemning a “woefully untimely” lawsuit that seeks to overturn a medical marijuana initiative that voters approved during last week’s election. But the petitioners who brought the challenge are pushing back in their own filing.
Days before the election, the mayor of the city of Madison asked the state Supreme Court to invalidate 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.
While the court had initially instructed the secretary of state to promptly respond to the emergency petition, Chief Justice Michael Randolph rescinded the earlier order and instead asked that the official weigh in by November 6—three days after the election.
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.
The response from the secretary of state’s office, signed by the state attorney general, uses strong language to push back on the challenge—especially with respect to the timing of the filing.
“Even if their interpretative argument is correct, petitioners’ action is woefully untimely. They could have asserted their so-called ‘procedural’ challenge years ago, and certainly when former-Secretary of State Hosemann officially filed Initiative Measure 65 in September 2019,” the office said. “Petitioners’ inexcusable and unreasonable delay has prejudiced the Secretary of State, the State, and the public-at-large.”
“Additionally, and not least important, common law equity principles and clear precedent of this Court prohibits petitioners from obtaining a writ of mandamus or other extraordinary writ against the Secretary of State. The Secretary’s ministerial duties of receiving and reporting the results of the November 3, 2020 election, as this Court already held nearly fifty years ago, are not subject to a writ.”
The secretary of state’s office said the court “should deny petitioners’ requested relief and dismiss their petition.”
Attorneys for the medical cannabis legalization campaign also submitted a filing intervening in the case on Monday, arguing that “issues concerning jurisdiction, timeliness, procedure, and the very remedy sought” should lead the justices to dismiss the case. In particular, they say the petitioners should have sought judicial relief at the trial court level before appealing to the state’s highest court.
“The people of Mississippi should not be stripped of a fundamental constitutional right by virtue of a tortured and novel reading of the Constitution,” the response states.
Petitioners seeking to invalidate the legalization vote claimed that the government’s position on the timeliness of their suit is redundant.
“This is an improper attempt to shift the burden of proof to Petitioners for a defense Respondents must prove,” they said. “Respondents fail to demonstrate facts to support their assertion that Petitioners knew they had a claim yet waited too long to assert it. It is not clear precisely when Respondents contend the petition should have been filed.”
“The wisdom of medical marijuana in Mississippi is not on trial here. The issue is whether the plain language of the Constitution must be followed,” they said. “The question is simple but the stakes are high. The rule of law depends on it.”
On a similar note, the Montana Supreme Court last month rejected a lawsuit seeking to invalidate a marijuana legalization measure that has since been approved by voters.
With weeks before the election, opponents asked the court to quash the measure, arguing that because it involves appropriating funds, it violates the state Constitution. The court didn’t weigh in on the merits of the case; rather, it said the petitioners with the reform campaign failed to demonstrate “urgency or emergency factors” that would justify moving the case into its jurisdiction instead of going through trial and appeals courts first, which opponents are now pursuing.
In neighboring Nebraska, the state Supreme Court ruled in September that a measure to legalize medical cannabis that had qualified for the November ballot could not proceed because it violated the state’s single-subject rule for ballot initiatives.
In Mississippi, activists faced numerous obstacles getting on the ballot and passing beyond this still-pending legal challenge.
Most glaringly, the addition of a more restrictive alternative measure that the legislature placed on the ballot and the resulting two-step question voters face represented a significant problem for activists. But in the end, voters overwhelmingly approved the activist-led proposal.
The initiative will allow patients with debilitating medical issues to legally obtain marijuana after getting a doctor’s recommendation. It includes 22 qualifying conditions such as cancer, chronic pain and post-traumatic stress disorder, and patients would be allowed to possess up to 2.5 ounces of marijuana per 14-day period.
Under the approved measure, the Mississippi Department of Health will be responsible for developing regulations for the program by July 1, 2021. Medical cannabis patient cards will need to be issued by August 15, 2021.
The Mississippi State Medical Association and American Medical Association circulated a sample ballot that instructed voters on how to reject Initiative 65.
Last month, Gov. Tate Reeves (R) signed legislation that amended state law to allow people to obtain marijuana-derived medications that are approved by the Food and Drug Administration, stating that he’s “against efforts to make marijuana mainstream.”
Earlier this month, the governor took to Twitter to slam the medical marijuana measures, saying they are favored by “stoners” and claiming they would be “the most liberal weed rules in the US.”
Advocates also faced a public relations challenge when President Trump’s reelection campaign sent them a cease and desist letter, demanding that they stop using accurate quotes from the president in support of medical cannabis in mailers and campaign materials.
In June, lawmakers introduced yet another medical cannabis alternative resolution that would’ve posed an additional threat to the activist-driven reform initiative. But the legislation didn’t advance before lawmakers went home for the summer.
Read the secretary of state office’s response to the medical marijuana legalization challenge below: