Mayor I65 SOS Answer
Mayor I65 SOS Answer
No. 2020-M-01199
VS.
INTRODUCTION
people’s right to amend the Constitution by ballot initiative. Over two years ago,
2020 general election ballot. A few days before election, which has now occurred and
the initiative process that former-Secretary Hosemann completed over a year ago.
Section 273(3)’s text, together with the State’s shift from five congressional
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whether and how Section 273(3)’s petition signature requirements can be satisfied.
based on the view that the initiative petitioners supplied sufficient signatures from
requirements can never be satisfied cuts against it. As the ultimate arbiter of the
Constitution’s meaning, this Court needs to resolve that question here, and
untimely. They could have asserted their so-called “procedural” challenge years ago,
prejudiced the Secretary of State, the State, and the public-at-large. Laches bars
Additionally, and not least important, common law equity principles and clear
other extraordinary writ against the Secretary of State. The Secretary’s ministerial
duties of receiving and reporting the results of the November 3, 2020 election, as this
Court already held nearly fifty years ago, are not subject to a writ.
This Court should deny petitioners’ requested relief and dismiss their petition.
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FACTS
Section 273 of the Constitution provides the exclusive process for amendments
to provisions of the Constitution. At issue here, Section 273(3) establishes how the
The people reserve unto themselves the power to propose and enact
constitutional amendments by initiative. An initiative to amend the
Constitution may be proposed by a petition signed over a twelve-month
period by qualified electors equal in number to at least twelve percent
(12%) of the votes for all candidates for Governor in the last
gubernatorial election. The signatures of the qualified electors from any
congressional district shall not exceed one-fifth (1/5) of the total number
of signatures required to qualify an initiative petition for placement
upon the ballot. If an initiative petition contains signatures from a single
congressional district which exceed one-fifth (1/5) of the total number of
required signatures, the excess number of signatures from that
congressional district shall not be considered by the Secretary of State
in determining whether the petition qualifies for placement on the
ballot.
MISS. CONST., art. 15, § 273(3). Other provisions in Section 273 provide various
Legislature. See generally MISS. CONST., art. 15, § 273. The Mississippi Code also sets
forth various requirements for the process. See MISS. CODE ANN. § 23-17-1 et seq. All
electorate at an election. See MISS. CONST., art. 15, § 273(2), (8), (10).
filed an initiative seeking to amend the Constitution to provide a legalized system for
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medical marijuana.1 After Initiative Measure 65 was finalized in September 2018,
pursuant to Section 273(3), the proponents gathered petition signatures and obtained
certifications from the 82 county circuit clerks pursuant to Code Section 23-17-21. In
September 2019, the proponents submitted the initiative petition and certifications
whether the initiative should be placed on the ballot. On September 4, 2019, the
Secretary of State’s Office determined that the proponents had provided the requisite
on the ballot for the November 3, 2020 general election, based on an equal division
Between September 2019 and October 2020, the Secretary of State’s Office and
other officials performed their required duties and tasks associated with Initiative
Measure 65. In March 2020, consistent with Section 273(8), the Legislature passed
65A, which the electorate voted on at the same time as Initiative Measure 65 in the
approved the sample ballot containing the two measures for the ballot initiative
election, as well as all other election races appearing on the statewide ballot. A few
1 The relevant facts at issue here are matters of public record, not disputed, and are set out in
petitioners’ submission, their exhibits, as well as in their cited documents available on the Secretary
of State’s website.
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On October 26, 2020, petitioners in this case filed their “emergency” petition
Initiative Measure 65’s petition signatures, and seeking relief by extraordinary writ
to prevent Secretary Watson from declaring the outcome of the ballot initiative
following the election. On October 27, 2020, this Court initially ordered Secretary
Watson to answer the petition by 5:00 p.m. on October 28, 2020. On the afternoon of
conducted the statewide general election. As of this writing, county officials have not
certified the official results from election day. But, it has been widely-publicized that
273(8). By the evening of November 5, 2020, with nearly all precincts reporting, the
vote total “For Either” Initiative Measure 65 or Initiative Measure 65A was 689,840
(68%) to 326,311 (32%), and Initiative Measure 65 prevailed over Initiative Measure
65A by a margin of 660,160 (74%) to 233,483 (26%). See Mississippi General Election
ARGUMENT
of Section 273, and thereby rendered Mississippians powerless to propose and enact
constitutional amendments. Pet. at 2. They allege that under Section 273(3), because
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only four congressional districts currently exist in the State and only 1/5 of the
required signatures for a ballot initiative can come from a particular district, the
“In interpreting the Mississippi Constitution,” this Court seeks “the intent of
the draftsmen, keeping in mind, the object desired to be accomplished and the evils
provisions should be read so that each is given maximum effect and a meaning in
harmony with that of each other.” Dye v. State ex rel. Hale, 507 So. 2d 332, 342 (Miss.
1987). Further, the Constitution “is a document presumed capable of ordering human
affairs decades beyond the time of its ratification under circumstances beyond the
LAW § 68:107 (2d ed.) (“Almost all rules that apply to interpretation of statutes also
apply to the terms of a constitution.”). When applying those principles, “the ultimate
goal of this Court is to discern the legislative intent.” Matter of Adoption of D.D.H.,
268 So. 3d 449, 452 (¶12) (Miss. 2018) (internal quotes omitted). “To determine
legislative intent, the Court first looks to the language of the statute.” Id. (internal
deduced from the whole and every part of the statute taken together—from the words
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and context—and such a construction adopted as will best effectuate the intention of
the law-giver.…Further, the Court may also look to the statute’s historical
background, purpose, and objectives.” Id. (internal quotes and citation omitted).
expressly provides: “The people reserve unto themselves the power to propose and
enact constitutional amendments by initiative.” M ISS. CONST., art. 15, § 273(3). The
second provision establishes the time limitations and requisite total number of
petition signatures to achieve placement on the ballot. Id. And the third provision
requires that the total number of signatures be divided equally among five
geographical areas designated by congressional districts. Id. The second and third
Initiative Measure No. 20, 774 So. 397, 402 (¶21) (Miss. 2000), overruled on other
grounds, Speed v. Hosemann, 68 So. 3d 1278 (Miss. 2011). When read together as a
whole, the intent and purpose of the three provisions is to preserve the people of the
that ensures proposed initiatives have support from electors all over the State.
Consistent with that view of Section 273(3)’s text and original intent, former-
Secretary of State Hosemann interpreted and applied the third provision to Initiative
they existed in the year 2000.’” Pet at. 6 (quoting Initiative Measure 65’s publication,
available at https://www.sos.ms.gov/elections/initiatives/InitiativeInfo.aspx?IId=65).
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Petitioners do not dispute that the initiative’s proponents satisfied that criterion.
Instead, they complain that the initiative was improperly certified because only four
congressional districts currently exist, and Section 273(3)’s “phrase ‘qualified electors
from any congressional district’ can mean only the current congressional districts.”
First, petitioners’ literalism actually cuts against them. They assert “[t]here is
no textual support for replacing ‘any congressional district’ to ‘from each of the five
congressional districts as they existed in the year 2000.’” Pet. at 15. But, using that
test, there is also “no textual support” for petitioners’ reading either. To reach their
district cannot reasonably be interpreted to mean a past or present district. And there
former five congressional districts to harmonize the provisions with the “one-fifth”
requirements in Section 273(3). See Dye, 507 So. 2d at 342 (“constitutional provisions
should be read so that each is given maximum effect and a meaning in harmony with
bind the congressional districts to a particular redistricting plan, [they] could have
explicitly done so.” Pet. at 16. But they did not. The drafters also did not explicitly
“bind” the congressional districts to the current plan either. The drafters’ failure to
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do so does not make former-Secretary Hosemann’s application of Section 273(3)
improper.
most important sentence of the section: “The people reserve unto themselves the
art. 15, § 273(3). Petitioners’ 33-page brief conveniently omits any mention of that
When interpreting the Constitution, this Court “will look to the dominant
582, 583 (Miss. 1945); see also Owens Corning v. Mississippi Ins. Guar. Ass’n, 947 So.
2d 944, 946 (¶7) (Miss. 2007) (“In determining the proper construction of a statute,
the entire legislation on the subject matter, its policy, reason, as well as the text,
that principle. In contending that the geographical division provision can only mean
in the section.
for the Initiative Measure 65 proponents (and a problem for past and future initiative
petitioners). This Court does not read impossible requirements into constitutional
provisions. See Gulf Refining Co. v. Stone, 21 So. 2d 19, 21 (Miss. 1945)
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(“Constitutional and statutory provisions do not require to be done that which is
which could never be satisfied is a reason to reject their argument, not credit it.
Fourth, the Legislature’s “repeated failures to amend Section 273(3)” does not
improve petitioners’ position. Pet. at 18. Over the past several years, members of the
for the State’s current four congressional district configuration. In fact, when he was
a Senator, Secretary of State Watson introduced a resolution during the 2015 Session
that would have changed the words “one-fifth (1/5)” appearing in Section 273(3) to
“pro rata share.” 2015 S.C.R. 549. The resolution did not pass.
share” or similar alteration to Section 273(3) would sensibly clarify its text, be
consistent with its purpose of ensuring that proposed initiatives have sufficient
support from electors throughout the State, and eliminate any possibility that the
regarding Section 273(3)’s text shows there is room for a good faith interpretative
dispute, not that the section can only be interpreted to effectively bar any initiative
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Finally, petitioners’ attacks on prior Attorney General opinions do not improve
their argument. In 2009, the Attorney General’s Office opined that “the geographic
distribution requirement of Section 273 requires that not more than 20% of the total
number of initiative petition signatures must come from the last five-district
congressional district plan which was in effect prior to the adoption of the current
Petitioners attempt to discredit the opinion for not “citing any constitutional text,
conclusion. Pet. at 20. Contrary to petitioners’ rhetoric, Section 273 is quoted in the
Secretary of State require that a minimum of 20% of the initiative petition signatures
come from each of the five ‘old’ congressional districts, or should he require that 25%
of the initiative petition signatures come from each of the ‘new’ congressional
better reading of Section 273(3). Hosemann, 2009 WL 367638, at *3. If, as petitioners
contend here, the issue had been whether nobody can ever presently satisfy Section
273(3), then Hosemann would have analyzed that issue and cited all the
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discussed above. Bashing Hosemann for failing to address an unasked question gets
petitioners nowhere.
and the analysis in Turner, 2015 WL 4394179 (MS AG Jun. 5, 2015). In Turner, the
issue was whether a presidential preference primary candidate could satisfy Code
Section 23-15-1093 by filing “petitions signed by not less than one hundred (100)
qualified electors of the ‘old’ five congressional districts as the same existed prior to
the adoption of the four current congressional districts.” Turner, 2015 4394179, at *1.
The opinion provided: “a candidate may file a petition or petitions signed by a total of
not less than five hundred (500) qualified electors of the state, or petitions signed by
not less than one hundred (100) qualified electors of each congressional district of the
state, in which case there shall be a separate petition for each congressional district.”
MISS. CODE ANN. § 23-15-1093. Unremarkably, because the statute used the
conjunction “or,” Turner concluded that a candidate could qualify with either 500
signatures (100 from each former congressional district) or 400 signatures (100 from
Turner and Hosemann are different opinions about different issues involving
different statutory and constitutional schemes. Turner does not prove Hosemann was
wrong. Turner, more importantly, does not prove petitioners are right. There were no
alternative interpretation, like petitioners’, that would have undermined the plain
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For all these reasons, this Court should dismiss the petition.
Court should still reject their petition. Laches independently defeats petitioners’
claim.
Laches applies when a party “(1) delay[s] in asserting a right or claim; (2) the
delay was not excusable; and (3) there was undue prejudice to the party against whom
the claim was asserted.” Allen v. Mayer, 587 So. 2d 255, 260 (Miss. 1991); see also
Tucker v Hosemann, No. 2:10cv178-P-S, 2010 WL 4384223, at *4 (N.D. Miss. Oct. 28,
2010) (applying laches in elections matter when all three elements are met).
their claim. To measure delay, similar to a statute of limitations inquiry, courts look
to when plaintiffs objectively knew or reasonably should have known of their cause
of action. Armco, Inc. v. Armco Burglar Alarm Co., 693 F.2d 1155, 1161-62 (5th Cir.
1982); see also White v. Daniel, 909 F.2d 99, 102 (4th Cir. 1990) (applying laches in
voting rights lawsuit). However, unlike a limitations analysis, laches does not turn
on the time elapsed between a claim’s accrual date and when a lawsuit is filed. See
Barrios v. Faye, 597 F.2d 881, 884 (5th Cir. 1979) (laches “is not, like limitations, a
mere matter of time; but principally a question of the equity or inequity of permitting
in Section 273(3)’s procedural requirements has existed since a federal court redrew
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the State’s congressional districts in 2002, such that no initiative petition could ever
satisfy the requirements. Petitioners did not need to develop any facts to attack
Initiative Measure 65 under their theory. They knew or should have known of their
The process which led to Initiative Measure 65 started over two years ago. As
a matter of public record, all of the following steps (and others) in the process required
pursuant to Section 273, Code Sections 23-17-1 et seq., and other provisions of the
● August 17, 2018 – Ballot Title/Summary received from Attorney General’s Office;
● March 17, 2020 – House Concurrent Resolution for Initiative Measure 65A enrolled;
● September 19, 2020 – Absentee voting by military and overseas voters began;
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Petitioners could have elected to sue at any point in the process. But they sat
idle and failed to file their challenge until a few days before election day. Now, election
caused undue prejudice in many ways. First, petitioners’ delay prejudiced the
Secretary’s ability to defend against their claim. While petitioners had months to
prepare their 106-page filing, Secretary Watson has only been afforded days to
Petitioners’ delay has also prejudiced the Secretary, and the Court, by leaving
Initiative Measure 65, and leaving no time for the Court to review the parties’
submissions and act on petitioners’ claim before the November 3, 2020 general
related to the processing, publication, and public notice requirements associated with
Initiative Measure 65. The Secretary of State’s Office produced and distributed
pamphlets, held public hearings across the State, and spent resources in taking other
required actions associated with the initiative process. If petitioners had timely
asserted their claim, it could have been resolved before the Secretary of State’s Office
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Third, the undue prejudice caused by petitioners’ delay obviously extends to
the State, the proponents of Initiative Measure 65, and the public-at-large.
Petitioners delayed filing their purported procedural challenge until the last second
before the November 3, 2020 election, and even then, failed to demand relief before
election day. Due to petitioners’ inexcusable delay, and how they framed their belated
parties have not had an opportunity to appear and defend the petition. Moreover,
approved Initiative Measure 65. All that obvious prejudice to everyone could have
Fourth, petitioners want what amounts to a judicial declaration that not only
directly affects Initiative Measure 65 but also could threaten past, present, and future
measures. Crediting petitioners’ theory could mean that all ballot initiatives enacted
since the 2002 redistricting are “void ab initio” because of a signature deficiency,
settled enactments in a belated fashion, without all interested parties involved, would
Initiative Measure 65’s September 2019 certification is wrong on the merits. But,
even if their contentions could prevail, the Court should apply laches and hold the
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III. Petitioners Are Not Entitled to a Writ of Mandamus or Any Other
Extraordinary Writ Against the Secretary of State.
The last page of petitioners’ submission asks this Court “to issue whatever
the Secretary of State’s declaration of the votes under MISS. CODE ANN. § 23-17-41
and MISS. CONST. art. 15, § 273(10) on Initiative Measure No. 65 and 65-A.” For the
reasons explained above, petitioners are not entitled to any relief whatsoever. But
even wrongfully assuming that their claim has merit, any writ against the Secretary
of State designed to prevent him from declaring the results of the upcoming election
is barred.
executive officer from performing their ministerial acts and duties imposed by law in
regard to an election. Barnes v. Ladner, 131 So. 2d 458, 463 (Miss. 1961). In Barnes,
just like in this instance, a group of petitioners sued for a writ prohibiting Secretary
of State Heber Ladner “from taking any steps or other proceedings in connection with
the issuance of a proclamation certifying the results of the special election held on
June 7, 1960, at which there was submitted to the qualified electors of the state for
ratification or rejection the ‘right to work’ amendment to the State Constitution.” Id.
at 459. This Court rejected the petitioners’ procedural and substantive arguments
In addition to the lack of merit in petitioners’ claim, this Court also denied
relief because “the petition sought to restrain [Secretary Ladner] from doing the very
acts and performing the specific duties imposed on him by law.” Id. at 463.
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Particularly, at that stage of the process, Secretary Ladner was charged by
constitutional and statutory law to perform two duties. Id. First, by statute, Secretary
Ladner was required to receive the results of the election on the constitutional
amendment from county election commissioners, tabulate the results, and submit
them to the legislature at its next regular session. Id. Second, if the constitutional
amendment received a majority of the vote at the election, the provisions of Section
273 then in place provided the amendment “shall be inserted as a part of the
majority vote required by the Constitution.” Id. (quoting MISS. CONST., art. 15 § 273
(Rev. 1959)).
Relying on the common law purpose of extraordinary writs and its prior
precedents, this Court recognized that writs may only be employed to control the
64.2 This Court recognized that “the Secretary of State under our statutes has
multiple duties to perform and is vested with quasi-judicial powers under some
statutes.” Id. at 464. However, the Secretary’s “functions in receiving and tabulating
the election returns sent in by the election commissioners of the 82 counties, and in
result, courts lacked authority “to restrain or prohibit the Secretary of State from
2 This Court’s rules mirror the common law practice. See MISS. R. APP. P. 15 (Mandamus to
Require Trial Court Decision); MISS. R. APP. P. 21 (Writs of Mandamus and Prohibition Directed to a
Judge or Judges and Other Extraordinary Writs).
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performing the acts mandatorily required of him” to tabulate and proclaim the results
of the election under the constitutional provision and statute. Id.; see also In re
Wilbourn, 590 So. 2d 1381, 1385 (Miss. 1991) (recognizing Barnes “declared that a
court by writ of prohibition could not prohibit the Secretary of State from receiving
and tabulating election returns and issuing a proclamation certifying the results of
mandated to do”).
State Ladner in 1961. The Secretary of State’s Office has already performed each of
the acts and duties with respect to Initiative Measure 65 and the November 3, 2020
general election that could arguably be considered judicial or quasi-judicial. See MISS.
CONST., art. 15, § 273(3), (9); MISS. CODE ANN. § 23-17-19, § 23-17-23, § 23-17-25, §
23-17-27. The only remaining acts for the Secretary of State to perform with respect
to the initiative following the general election include the ministerial duties to receive
election results from the counties and issue an official declaration of the results. See
MISS. CONST., art. 15, § 273(10); MISS. CODE ANN. § 23-15-603, § 23-15-605, § 23-17-
41.
perform regarding Initiative Measure 65, there is no basis for a writ compelling or
prohibiting the Secretary from declaring the results of the November 3, 2020 general
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have merit, which they do not, then no writ should issue from this Court, or any other
CONCLUSION
This Court should dismiss petitioners’ claim for lack of merit, and/or on laches
petitioners’ claim, this Court should reject petitioners’ request for a writ of mandamus
or other extraordinary writ preventing the Secretary of State from declaring the
results of the vote on Initiative Measure 65 at the November 3, 2020 general election.
Respectfully submitted,
LYNN FITCH,
Attorney General
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CERTIFICATE OF SERVICE
I hereby certify that the foregoing document has been filed using the Court’s
MEC system and thereby served on all counsel of record and other persons entitled
to receive service in this action.
S/Justin L. Matheny
Justin L. Matheny
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