Nebraska Judge Says Lawsuit Over Medical Marijuana Signatures Might Not Be Resolved By Election Day

“He’s advancing a position in this case that has never been adopted by a single court in Nebraska, and as far as we can tell, has never been adopted by a single court in the entire country.”

By Zach Wendling, Nebraska Examiner

A Lancaster County District Court judge said Friday that the ongoing legal challenges to Nebraska’s two medical cannabis ballot measures might not be resolved by Election Day.

Judge Susan Strong, during a virtual hearing Friday, proposed dividing the trial set to start October 29 into two parts. Under the proposal, attorneys for Secretary of State Bob Evnen (R) and John Kuehn, a former Republican state senator and former State Board of Health member who launched the lawsuit, would need to first prove there are enough questionable signatures.

The challenges would need to prove that a sufficient number of signatures are invalid based on allegations of technical or clerical errors, circulator fraud or malfeasance. If a sufficient number of signatures were successfully challenged, the ballot sponsors would have the opportunity to show proof that some signatures were genuinely collected and should not be tossed.

“If it’s the latter situation and we have to proceed to phase two, we’re talking about going beyond the date of the election,” Strong said Friday. “I don’t know whether we can help that at this point because the timeline is already extremely tight.”

The challenged signatures

Evnen confirmed nearly 90,000 valid signatures on each petition when he certified the ballot September 13. The minimum threshold is 86,499 signatures each on the petitions to legalize and regulate the medical drug.

On September 12, Kuehn launched his lawsuit, which, in his most recent public filings, challenged about 17,000 signatures on each petition.

Strong allowed Kuehn’s case to proceed to determine what is a “clerical or technical error” and what could get a signature removed from a petition.

Evnen is challenging about 49,000 signatures on each petition for alleged circulator fraud and notary malfeasance. Strong said Friday she would let Evnen’s challenge, initiated as part of Kuehn’s lawsuit, move forward “as a practical matter” because the issues raised would be determined either way.

“Signatures may still be counted if the defendants can prove the genuineness of those signatures,” Strong instructed the court.

Timing of a court decision

Sydney Hayes and Daniel Gutman, attorneys for the ballot sponsors, expressed some hesitation with the proposed case timeline, particularly with the closeness to the November 5 election.

“Specifically if part of it were to occur before the election and essentially create an air that the initiative might be invalidated, when it actually may not end up being invalidated by the second trial, which would create voter confusion and ultimately prejudice get-out-the-vote efforts,” Hayes said.

Assistant Attorney General Jennifer Huxoll said the proposal seemed like “an effective path forward.” She said the large number of signatures that Evnen is challenging does not mean he is trying to “bury” the sponsors in reviewing that evidence. She said it’s about election integrity.

The Attorney General’s Office is looking to bring in a handwriting expert for the investigation. Huxoll said if the court rules in the plaintiffs’ favor, it represents “a serious election issue.”

“There’s no gamesmanship going on here, your honor,” Huxoll said. “It’s truly just an effort to get to the bottom of this as quickly as possible and as succinctly as possible.”

Anne Marie Mackin, an attorney for Kuehn, said Strong’s proposal seemed consistent with past case law in terms of the steps needed in a signature-challenge case.

Gutman called Evnen’s challenge “a broader effort to undermine the initiative process.”

“We don’t say that lightly,” Gutman told Strong. “We know that is a bold statement, but it’s justified here because he’s advancing a position in this case that has never been adopted by a single court in Nebraska, and as far as we can tell, has never been adopted by a single court in the entire country.”

Huxoll responded: “At its very essence, fraud and malfeasance in the collection of signatures is not a technicality, and Nebraskans deserve to know whether it occurred here.”

Deputy Solicitor General Zach Viglianco said Evnen’s case is not about “mere technical errors” or “simple sloppiness or mistakes” but “willful” violations of state rules and laws.

Evnen and Attorney General Mike Hilgers (R) have named a total of eight notaries and four petition circulators who they allege committed fraud or malfeasance, including two who have been criminally charged. Two dozen more people are named in the lawsuit. No new criminal charges have been filed.

‘More of a fair shake’

Strong said she would “probably” order the parties to follow her amended timeline, which she described as “really for the defendants’ benefit more than anybody else.”

“I don’t know how you’re going to concentrate on responding to the plaintiff and the secretary of state at the same time you’re trying to prove genuineness of signatures,” Strong said. “I mean, it sounds like an overwhelming task, and that’s why I thought it only makes sense to see if we do have enough fraud, actually provable, intentional fraud, in such numbers that would render those petitions insufficient legally, and they may not.”

Strong said she wants to work with everybody involved in the case and ensure they get a chance to be heard.

“The initiative is on the ballot, so you have that assurance,” Strong said. “My duty is going to be to follow the case law and the statutes and determine whether those petitions are legally insufficient or sufficient. That’s the best way I think we can proceed to let everybody have more of a fair shake.”

The trial is scheduled to begin October 29 and could continue October 31 and November 1, if necessary. The election is November 5. Early voting has already begun.

This story was first published by Nebraska Examiner.

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Photo courtesy of Mike Latimer.