Nebraska Medical Marijuana Initiative Sponsors Push Back Against State Officials’ Signature Fraud Claims

“It would make little sense to penalize a voter for purported mistakes that occur after they affix their signature on a petition.”

By Zach Wendling, Nebraska Examiner

The sponsors of Nebraska’s medical cannabis ballot measures are pushing back on the state’s chief election official for questioning nearly 100,000 signatures, which they say threatens “the initiative right altogether.”

Secretary of State Bob Evnen (R) and Attorney General Mike Hilgers (R) entered court filings questioning the validity of roughly 49,000 signatures on each of two medical cannabis petitions. They alleged that more than half involved “notary malfeasance.” Evnen asked the court to determine the actual number of valid signatures and void the election results if there aren’t enough.

Attorneys for the three sponsors of Nebraskans for Medical Marijuana said Monday that Evnen has not alleged any “intentional wrongdoing” as required under the law and ignores past legal precedents “in his effort to disenfranchise tens of thousands of Nebraska voters.”

“Even worse, Nebraska’s highest election official advances a burden shifting framework that threatens to undermine and eliminate the initiative right altogether,” the sponsors’ brief states.

Timeline of the lawsuit

Evnen on September 13 certified the campaign’s two measures—which would legalize and regulate the drug for medical use—for the November 5 ballot. Evnen confirmed nearly 90,000 valid signatures on each cannabis petition. The campaign needs at least 86,499 valid signatures. Early voting has already begun.

On September 12, John Kuehn, a former state senator and former State Board of Health member, filed a lawsuit challenging the legal sufficiency of the ballot measures. Kuehn named Evnen and the three campaign sponsors in the lawsuit.

Lancaster County District Judge Susan Strong allowed the complaints from Evnen and Kuehn to move forward while narrowing Kuehn’s lawsuit to approximately 17,000 signatures on each petition to define “clerical and technical errors” as opposed to actual invalidities.

Hilgers announced a statewide investigation the same day that Evnen certified the November ballot, looking into fraud, malfeasance and “irregularities” specifically on the cannabis petitions.

One paid circulator from Grand Island and one notary from York have been charged as a result of the investigation. In a legal filing last week, Hilgers said more charges could be coming and specifically implicated 10 more circulators or notaries by name, including one of the ballot sponsors.

There are four other measures on the November 5 ballot, but Hilgers has announced an investigation only into the medical cannabis measures.

The secretary of state’s duties

A brief from the Nebraska Attorney General’s Office in support of Evnen states the legal concept of “standing”—whether a controversy exists for a case to even proceed in court—“keeps both courts and litigants in their proper lanes.”

Hilgers and his office echoed Kuehn’s attorneys’ contention that if a measure is legally or constitutionally insufficient, Evnen’s duties change. Any uncertainty, Hilgers’s office continued, “frustrates the Secretary’s proper execution and administration of those duties.”

“Concluding that the Secretary lacks standing would improperly restrict his ability to carry out his constitutional role and do what the Election Act requires,” the brief states.

Kuehn and his attorneys defended Evnen’s ability to bring the amended claim against the ballot sponsors and pointed to the Nebraska Constitution’s sections on citizen-led petitions.

Kuehn’s attorneys write that the constitution is “self-executing” and that no state law can change or impede Evnen’s constitutional mandate to prevent certification of legally insufficient ballot measures. Should Evnen get new information, which they say includes Hilgers’ investigation, the constitution requires Evnen to act.

“This duty is plainly a legal interest in the subject of this litigation,” Kuehn’s brief states.

Should Judge Strong dismiss Evnen’s claim for a lack of “standing,” Kuehn’s attorneys requested that he be allowed to add the challenged signatures to his batch of challenges.

‘The precious right of initiative’

The ballot sponsors’ attorneys argue that no Nebraska court has ever invalidated a petition signature based on an alleged error of a third-party notary. They note that the Nebraska Supreme Court, in 1919, did allow signatures to be invalidated based on widespread circulator fraud, but the case has never been extended to notaries.

“It would make little sense to penalize a voter for purported mistakes that occur after they affix their signature on a petition, and for which they have no responsibility or control,” the ballot sponsors’ attorneys wrote.

Evnen’s argument, the attorneys argue, is that “a single error—whatever the reason—is tantamount to pervasive and widespread fraud.”

They contend that Evnen is not authorized under any state law or regulation to request such a remedy of “wholesale invalidation” and that Evnen’s role is to verify signature requirements before placing a measure on the ballot and confirm the outcome of the election.

In their argument, the sponsors’ attorneys point to a 2022 case in North Dakota where the secretary of state invalidated 15,740 otherwise valid signatures because they came from a certain notary. The North Dakota Supreme Court reversed the action and refused to invalidate a greater number of petitions.

“Part of safeguarding the precious right of initiative is ensuring that political opponents cannot bury the electorate in legal bills based on threadbare allegations of technical mistakes,” the ballot sponsors’ attorneys said. “This is particularly true when the political opponent is the State’s highest election official—the same one who has already certified the initiatives he now attacks.”

This story was first published by Nebraska Examiner.

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Photo courtesy of Philip Steffan.