Marijuana, Mississippi and the Ghost Congressional District

In the November 2020 General Election, Mississippi voters enthusiastically approved the legalization of medical marijuana. An overwhelming 74% majority supported the citizen-led Initiative 65 that will allow doctors to prescribe medical marijuana for 22 debilitating conditions.

The result was greeted with elation by organisers.

“This is a huge day for Mississippi and I couldn’t be more excited, humbled, or thankful,” said Jamie Grantham, communications director for Mississippians for Compassionate Care, the group that sponsored the Medical Marijuana 2020 campaign.

But Madison Mayor Mary Hawkins Butler was not among those celebrating the success of the medical marijuana Initiative. In fact, she’s so opposed to the idea that she filed a lawsuit challenging Initiative 65 on October 27, a week before election day. It was too close to the election to change the ballot and it didn’t make a dent in the popularity of legalizing medical marijuana.

In the euphoria of Initiative 65’s success, the lawsuit was largely forgotten – until this week. On April 14, Mayor Butler’s lawsuit finally surfaced in the Mississippi Supreme Court.

In his report for the Daily Journal, Luke Ramseth wrote,

Butler is worried that under Initiative 65, the city won’t be able to regulate where marijuana businesses are located, which could hurt property values and impact the health and safety of citizens.

The mayor’s flimsy rationale is nothing more than a thinly disguised anti-marijuana stance and that’s not the kind of argument you can take to court. Instead her attorneys based their case on numbers, specifically the number of signatures from voters in Mississippi’s 5th Congressional District — a district that doesn’t exist.

Mississippi has only 4 congressional districts and has had since 2003. They used to have 5 but after the 2000 census, they lost a CD and the state was redrawn with just 4. But like a ghost congressional district, the 5th still haunts the Mississippi Constitution.

Back in 1992, when there were still 5, an Amendment to their Constitution stated that petitioners had to collect an even number of signatures from each of the state’s congressional districts. While that’s an achievable condition for present-day petitioners to meet, unfortunately, whoever wrote the Amendment felt the need to qualify that statement by adding,

The signatures of the qualified electors from any congressional district shall not exceed one-fifth of the total number of signatures required to qualify an initiative petition for placement upon the ballot.

The one-fifth condition reflects the status quo at the time because apparently, it didn’t occur to anyone that the number of congressional districts might change sometime in the future and that the Constitution should allow for that possibility. Nor was the Amendment subsequently amended in 2003 when the state downsized from 5 to 4 districts.

That means this lawsuit could present a much bigger problem for Mississippi than the potential loss of Initiative 65. If the state Supreme Court finds for Mayor Butler, their ruling would technically invalidate every ballot initiative since 2003.

You’d think someone might notice that possibility earlier – and they did, eventually. Six years after redistricting, it occurred to someone that this was a loophole that needed to be closed. I doubt they had a vision of a mischief-making mayor with a marijuana mania messing with their Constitution but someone realised the inherent danger of the now obsolete language.

In 2009, the Mississippi Attorney General’s office advised that ballot initiatives qualify if they collect signatures from the former 5 districts, rather than the current 4. Short of another Amendment, this was a sensible workaround.

Mississippians for Compassionate Care and the Marijuana Policy Project knew of this requirement and took great care to ensure they had every one of the former 5 districts equally covered.

Will it be enough to ensure the validity of Initiative 65? At least 74% of voters will be hoping so.

It’s now up to the Mississippi Supreme Court. The judges will first need to determine if the advice provided by the state’s Attorney General’s office satisfies the out-of-date provision in the Constitution. If it does, then it only remains for Initiative 65’s supporters to show that they did indeed collect the required number of signatures from the ghost 5th, the congressional district that no longer exists.