August 2021 and what a bizarre time it is. More than three months ago on May 14, 2021, the Mississippi State Supreme Court published their opinion in the case of In Re Initiative Measure No. 65: Mary Hawkins Butler v. Michael Watson, Secretary of State. Henceforth, I’ll refer to the case simply as In Re Initiative Measure No. 65, but wanted to be sure to get the Mayor’s name in there just once for good measure. It was a shocking outcome and an unjust one, by all counts, but one that will be remembered not only as a low point for the Court and democracy, generally, but also for how short-lived its primary effect will be. It’s noteworthy to recall both that in July, the State Supreme Court rejected a request to reconsider its ruling and most importantly, that the voters of Mississippi stood up for their most fundamental rights. The people organized a rally, “Standup for MS Voters” and groups like “We are the Seventy Four” as well as the Mississippi Medical Marijuana Association have maintained significant and persistent political pressure.
But here we are now in August when variants of the COVID-19 virus are doing strange and destructive things to populations of people across the globe. We’re in a sort of collective trance and doing whatever dance we do to make it through. Also moving unabated throughout American states are un-American and sometimes creatively despicable, but always dishonorable efforts to suppress or otherwise disenfranchise certain voters. This disturbing trend has taken many forms from such blatant and egregious efforts like removing voting machines, purging voter rolls, passing legislation to prohibit mail-in voting, providing food at polling places or allowing Sunday voting or, as in the case of Mississippi, simply having the highest court in the land overturn the results of the popular election where a staggering 74% of those voting supported Initiative 65. This will indeed be a dark chapter in the public record for Ms. Butler. In the simplest incontrovertible terms, she wasn’t doing the right thing for the right reasons or the right people.
One can make the argument that the Supreme Court was just doing its job and calling balls and strikes. One can also make a separate argument that is often heard in conservative circles around Mississippi that it’s the legislature’s place to make laws and that it shouldn’t be up to the voters. Basically, this argument or, actually, opinion supposes that although an established part of the Mississippi Constition and many other states, initiative and referendum (I&R) is somehow undemocratic. You got that right – the most unadulterated direct democracy by design is somehow averse to democracy or otherwise embodies dysfunction. As briefly and efficiently as possible, however, I’d like to take an honest look at what the MS Supreme Court did and how it fits into the larger framework of voter suppression. As with any practicing lawyer who’s got years of experience under their belt, I have read thousands of cases. Having done so, one begins to identify patterns and learns, first hand, about the various approaches that judges and justices take in reaching or justifying their conclusions.
On the one hand, practitioners and the public are very much pulled in the direction of respect for the tribunal and accepting the finality of the Court’s decision, but that doesn’t force a binary result devoid of personal observation or opinion. Neither does it endorse any kind of blind allegiance to the system. Yes, I appreciate that the MS Supremes have made their final decision. I also accept that the MS Legislature may now act to create a new law that does withstand judicial scrutiny, is fully Constitutional, and acts to satisfy the electorate’s demand for redress of grievance. The people of Mississippi clearly want access to medical Cannabis and this is now the eve of the month that the Mississippi Legislature will reconvene for a special session and hopefully, finally, deliver a truly democratic result after striking out on so many prior opportunities.
Tragically, it will inevitably fall short of the mark and by the measure of how much it does, we’ll see a proxy for how much damage was done to Mississippi at a minimum or American democracy overall. Lobbyists representing highly capitalized out-of-state companies are behind both the legislative and judicial effort to undermine the vote for an ambitious medical Cannabis program. And consider for a moment that ambitious Cannabis programs are absolutely necessary for this and each next market coming online with any hopes of being able to compete in the imminent National market. But how will it fall short? If Mississippi has taken any cues from its neighbors to the west, then lawmakers will be well-versed in the myriad ways that Louisiana’s opposition forces (principally the LA Sheriff’s Association or LSA) and their legislative allies have acted to retard and hamstring the medical Cannabis market there. Watch closely to see if MS legislators pass a law in September that allows for or prohibits sun grown (outdoor growing) flower, setbacks of 500 ft. from the nearest schools or churches, and where they land on taxes, for example. Legislators have perfected an injury against the patients and citizens of the state if they pass any legislation that is less generous than I 65 itself.
As for the justices, well here’s what I see and can’t shake. Over the past few decades, much was made by conservatives about “judicial activism” by so called liberal judges on benches across America. If this wasn’t judicial activism in the case of In Re Initiative Measure No. 65, then I don’t know what is. If it’s true that two principal theories on judicial decision-making exist in America: Formalism, which holds that legal questions have a “right answer” based on canonical legal materials, and Skepticism, which says that judges use the laws available to justify the outcomes they desire, many of us longed for deployment of a third by the Mississippi Supremes in resolving In Re Initiative Measure No. 65. That ‘third way,’ in this judicial arena would have been that of the legal realists. ‘Realism,’ forgoes either extreme, attempting to find patterns in judicial decisions not dictated solely by formal rules or ideology. It is obvious from the text of the decision in this most unfortunate case that the majority of the Justices found refuge in the formalist school or if you conjure up echoes of the late Supreme Court Justice Antonin Scalia or Justice Clarence Thomas, then what is otherwise referred to as strict constructionists. In contrast are the Legal Realists and Stephenson found in his analysis, a “nuanced, insightful understanding of the interaction between law and discretion that seemed like it would be useful to economists.”
In my next post, I’ll take a deeper dive into the contrast between these theories of legal decision-making as applied to the voter suppression or disenfranchisement underway in Mississippi. Meantime, we await that announcement from Governor Reeves on the details of the MS Special Session 2021 – another first for MS as it will become the first state to call a session entirely dedicated to medical Cannabis.
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