A mayor’s lawsuit is making baseless arguments as it seeks to overturn a medical marijuana initiative that Mississippi voters approved, state attorneys said in court papers filed Monday.

Madison Mayor Mary Hawkins Butler filed the lawsuit in late October. She opposed Initiative 65 because it limits cities’ ability to regulate the location of medical marijuana businesses.

Voters on Nov. 3 approved Initiative 65 by a wide margin, but the court fight continues.

The attorney general’s office filed arguments Monday on behalf of Secretary of State Michael Watson, attacking the premise of Butler’s lawsuit. Butler argues that the initiative process in the Mississippi Constitution is outdated because it requires petitioners to gather an equal number of signatures from five congressional districts.

Mississippi dropped from five congressional districts to four after the 2000 Census. Butler argues that this creates a mathematical impossibility: With four districts, more than one-fifth of the signatures must come from each.

State attorneys argued Monday that Mississippi law still mentions the state having five congressional districts.

Partisan fighting in the Legislature stalled congressional redistricting in the early 2000s, and the lines ended up being drawn by federal judges. State attorneys said in court papers Monday that legislators never updated state laws to reflect four congressional districts instead of five.

“As a result, four congressional districts exist in Mississippi under a federal injunction for congressional elections, but five congressional districts exist under state law and may be used for anything but congressional elections,” the state attorneys wrote.

The Mississippi attorney general’s office issued a legal opinion in 2009 saying that initiative sponsors should collect signatures from the five congressional districts used in the 1990s. In September 2019, then-Secretary of State Delbert Hosemann said the medical marijuana initiative qualified for the ballot because petition sponsors had enough signatures from each of those five districts.

In a Dec. 8 filing with the Mississippi Supreme Court, Butler’s attorneys said legislators have known for years about the problem in the initiative process but have killed multiple proposals to fix it. The attorneys said the secretary of state should not have relied on an attorney general’s opinion about signatures coming from the five outdated districts. They argued that doing so amounted to one executive-branch agency listening to another, when decisions should be made by the legislative branch.

Butler is a Republican, as are Attorney General Lynn Fitch, Watson and Hosemann.

Initiative 65 specifies that the state Health Department has until mid-2021 to establish rules for a medical marijuana program.
The Health Department, the Mississippi Municipal League and some others have filed briefs supporting Butler’s lawsuit. The Health Department argued that Initiative 65 seeks to transform the department “into something it is not,” even as the department is stretched because of the coronavirus pandemic.

“Rather than allowing the agency to focus its resources entirely on public health, it requires MSDH to get in the business of appropriations, agriculture, packaging and transport, advertising, marketing and penalty schemes —- just to name a few,” wrote attorneys representing the Health Department.