The Mississippi Department of Health is supporting the lawsuit brought by the city of Madison and Mayor Mary Hawkins Butler aimed at overturning Initiative 65 and possibly the state’s entire ballot initiative law.
Attorneys for the agency filed an amicus (friend of the court) brief Monday that says the agency shouldn’t be required to perform such a “Herculean feat” of creating a large database and writing complex regulations in less than seven months.
The brief also says that citizens have no inherent right to amend the constitution and that if the proper legal process was not followed, no amount of support matters.
Also, attorneys for the MSDH argue that while Initiative 65 was advertised as a single initiative, it amounts to 14 separate ones since it handles taxation, alters the criminal code, exempts medical marijuana from all state and local taxes and removes zoning power from municipalities, among other things.
The Nebraska Supreme Court tossed a citizen initiative in September on medical marijuana before it could appear on November’s ballot because it included nine subsections.
The attorneys for the MSDH say in the brief that like the Nebraska case, Initiative 65 is an enterprise of unlawful logrolling (the practice of combining dissimilar propositions in one initiative so that voters are forced to vote for or against the package even if they only support certain parts of it).
The brief also says Initiative 65 represents an affront to the separation of powers since one executive agency (MSDH) will be charged with appropriating and expending funds with no oversight by the Legislature, which is provided exclusively by the state’s constitution with appropriation power.
The original lawsuit, which was filed on October 26, is asking the state Supreme Court to throw out Initiative 65, which would create a medical marijuana program in the state and was approved by 73 percent of voters in the November 3 election.
In a brief filed December 8, attorneys for the city of Madison reiterated their argument on the ballot initiative law. This law, passed in 1992, requires at least 17,237 certified signatures from each of the five old congressional districts — as they existed in 2000 — for a total of 86,185 for a ballot initiative to make it onto the ballot.
The lawsuit and the follow up brief both claim Initiative 65 is unconstitutional since there are four congressional districts and the number of signatures submitted from at least one of the four districts exceeds the one-fifth of the total number required.
The petition says that the state Constitution prohibits the secretary of state from considering any signatures exceeding one fifth of the total number of signatures required and state law prohibits the secretary of state from putting an initiative on the ballot that doesn’t meet the standard.
Seven times the Legislature has proposed concurrent resolutions to change the law since 2003 and all of them have failed.
The secretary of state’s office replaced the language of “any congressional district” to “from each of the five congressional districts as they existed in the year 2000” in 2009. The change was endorsed by an opinion from the state attorney general at the time, Jim Hood, but these opinions don’t carry the weight of law.
In a reply submitted by the secretary of state’s office, the attorneys argue that the city of Madison could’ve filed their procedural challenge years ago and certainly when then-Secretary of State Delbert Hosemann filed Initiative 65 in 2019.
Another response brief from the secretary of state’s office is due on December 28.
The brief also states that if the court rules in favor of the city of Madison’s interpretation of the ballot initiative law, existing constitutional amendments passed through the process besides Initiative 65 such as voter identification and protections against eminent domain could also be challenged and overturned.