Mississippi high court could block medical marijuana and ex-felon voting rights

Mary Hawkins Butler, the mayor of Madison, Mississippi, filed a lawsuit challenging the state's new medical marijuana program, which was approved by voters in 2021. A ruling in Butler's favor could make it impossible or citizens to amend the state constitution. (Photo from the City of Madison's Facebook page.)

The Mississippi Supreme Court is now deciding whether a technicality in the state constitution requires them to invalidate a medical marijuana amendment that was approved by more than two-thirds of voters in last year's election. If the justices throw it out, their decision could thwart a new campaign to restore voting rights to people with felony convictions, as well as any future citizen-driven amendment efforts. 

To put an amendment on the ballot, the Mississippi Constitution requires citizens to gather a certain number of signatures — and it says those signatures must be divided equally among the state's five congressional districts. The problem is that Mississippi has only four districts, having lost one after the 2000 census. It's mathematically impossible to collect enough signatures from four congressional districts without having more than one-fifth of the signatures in any one of them. The legislature has repeatedly failed to fix this discrepancy.

The lawsuit was filed by Madison, a city of 25,000 people in the Jackson metro area, and Mayor Mary Hawkins Butler, a Republican who has held the seat for 40 years. The plaintiffs take issue with the process of certifying the signatures, and during oral arguments last week their lawyer said the case was not about "the wisdom of legalizing" medical marijuana. But their brief filed with the court includes a footnote warning about a broad interpretation of the eligibility for marijuana prescriptions. It cautions that doctors "have begun advertising" to treat marijuana patients, which is irrelevant to the five-district signature requirement.

Defending the amendment, Mississippi Attorney General Lynn Fitch, a Republican, argued the court should interpret the signature requirement as referring to the five districts that were in place before the court-ordered redistricting in 2000. Fitch criticized the plaintiffs' argument that "a change in congressional district lines nearly two decades ago … rendered Mississippians powerless to propose and enact constitutional amendments." She calls it "a creative theory of nullification by interpretation."

Fitch notes that when judges interpret the Mississippi Constitution they keep in mind the goals of the drafters of the constitution, and they strive to "give effect to" every provision, including the one that gives citizens the power to propose amendments. She says that there's "no textual reason" that the signature requirement shouldn't be interpreted as applying to previous congressional districts. 

Her brief also claims the suit should be thrown out because it was filed more than a year after the secretary of state certified the signatures. But the plaintiffs say they weren't aware of the certification. 

Madison and Mayor Butler attacked the secretary's decision to certify the signatures based on the pre-2002 districts. Their briefs call the certification "the essence of liberal interpretation driven by outcome-determinative reasoning" and argue the legislature must update the constitutional signature requirement. The secretary of state sponsored such an amendment in 2015, when he was a state legislator, and the briefs accuse him of hypocrisy for asking "the court to judicially create" the amendment that failed to pass the legislature.

When the federal government announced in 2000 that Mississippi was losing a congressional district, the legislature refused to draw new districts. A federal court ended up drawing them, and after the 2010 census modified them to account for population changes and to avoid diluting the political power of voters of color. The legislature has assigned members to redraw congressional and legislative election districts later this year. 

Several times in the last decade, Mississippi's Republican-led legislature has failed to update the constitution's signature requirements. This inaction could now lead the court to end citizens' ability to change their constitution.

It's happened in Mississippi before. In 1922, the state Supreme Court struck down the procedure for citizen amendments, and the legislature didn't establish another process until 70 years later. In the meantime, constitutional amendments could be proposed only by the legislature. 

Mississippi Chief Justice Michael Randolph said last week that the court would hand down its decision on the amendment process as quickly as possible. The medical marijuana program is scheduled to start this fall.

Mississippi is one of just three Southern states that currently allow citizens to propose constitutional amendments. In the other two states, Arkansas and Florida, Republican legislators are considering bills that would make it harder for citizens to amend their constitutions. Both states have raised the hurdles to citizen amendments in recent years, and the pending legislation would raise them further. 

Keeping Black people from voting

The Mississippi Constitution was rewritten in 1890 for the express purpose of securing "white supremacy" in the state. The drafters of the constitution did this, in part, by taking voting rights from people convicted of certain crimes, including arson, bribery, and forgery. The state added rape and murder to the list in the 1960s. 

Like other Southern states, Mississippi drafted a new constitution during the post-Civil War Reconstruction era. These constitutions expanded voting rights to include Black men who had been enslaved just a few years earlier. But the 1890 constitution undid the advancements in voting rights and established Jim Crow. 

In 1896, the Mississippi Supreme Court actually struck down the ban on voting by people with certain felony convictions as discriminatory, but the U.S. Supreme Court overturned the ruling and reinstated the ban. 

Well over 50,000 Mississippi citizens lost their right to vote from 1994 to 2018 because of criminal convictions, according to Mississippi Today. Of those, 61% were Black, while the state population is 38% Black.

The disproportionate impact on Black voters led some of them to file a lawsuit in 2018 challenging the ban as a violation of the U.S. Constitution. The case was dismissed, and the voters appealed to the 5th U.S. Circuit Court of Appeals in New Orleans, where the arguments last year were delayed due to the COVID-19 pandemic. The 5th Circuit threw out a similar lawsuit in 2010, and the court has since become more conservative. The legislature failed to pass an amendment last year that would have re-enfranchised people with criminal convictions. 

Given the inaction by the legislators and the courts, a new coalition is seeking to put a constitutional amendment on the ballot to restore voting rights to people, regardless of their past convictions. The Mississippi Poor People's Campaign, along with two allied groups, is sponsoring the new effort. 

The amendment would restore voting rights once people complete their sentences. Unlike a controversial new law in Florida, it wouldn't require people to pay court fines and fees to have their right to vote restored. Rev. William Barber, national leader of the Poor People's Campaign, said, "We should not hold people captive beyond their sentence."