Nebraska Court Weighs Legal Challenge That Could Prevent Medical Marijuana Ballot Votes From Being Counted After Election

“An extremely small minority of individuals have taken it upon themselves to attempt to silence the voice of the people.”

By Zach Wendling, Nebraska Examiner

A Lancaster County District Court judge said Friday she intends to issue “narrowly” at the end of next week whether to dismiss a lawsuit seeking to invalidate Nebraska’s medical cannabis petitions.

Judge Susan Strong made the announcement during a 20-minute initial briefing on the lawsuit filed by John Kuehn, a veterinarian, rancher, former state senator and former member of the Nebraska State Board of Health. The lawsuit seeks to either remove the two certified marijuana measures from the November 5 ballot or prevent counting of votes and void the election results.

“Hopefully we can all work together and resolve these claims as expeditiously as possible, hopefully before the election, though I understand we don’t have to,” Strong said at the initial hearing. “I think that would be the best course.”

Under state law, challenges to ballot measures can come before or after the election at issue, but Strong and attorneys for Secretary of State Bob Evnen (R) and Kuehn said they were inclined to move quickly so voters know the impact before November’s election.

Attorneys for Evnen and the campaign sponsors each asked for all or part of the lawsuit to be dismissed. The sponsors’ attorneys derided the lawsuit as the “equivalent of a recount.”

Kuehn alleges too many invalid signatures

Kuehn, who has opposed any version of legal cannabis, filed the lawsuit September 12. It came just one day before Evnen needed to decide the fate of the medical marijuana petitions and finalize the November ballot. Evnen certified the petitions and the ballot the next day.

On Tuesday, Kuehn amended his lawsuit from seven charges to four against Evnen and the campaign’s three sponsors. One of the charges that was dropped had alleged Nebraska couldn’t legalize marijuana in any form because the federal government hasn’t yet rescheduled the drug.

Kuehn’s original charges included violations of state laws and the constitution, as well as the federal regulations that list marijuana as a Schedule I drug, the same level as heroin or LSD.

In his new filing, Kuehn specifically alleges that officials validated nearly 90,000 signatures on the the legalization petition but that, at the least, the following were illegally counted:

• 13,243 signatures where the petition circulators did not disclose whether they were paid or unpaid.
• 2,433 signatures from signers who are not registered voters.
• 568 signatures where the notarizations are legally invalid because the circulator was not in the presence of a notary when the petition was filed.
• 411 signatures from voters where the date of birth on the petition doesn’t match the purported signer’s voter registration file.
• 134 signatures from signers who didn’t provide any address.
• 67 signatures from signers who signed the petition more than once and that Evnen failed to strike from the signature count.
• 60 signatures that pre-date the signature gathering window (in summer 2023).
• 48 signatures where the voter who was not a registered voter until after the petition was submitted for validation.
• 21 signatures that post-date the petition’s submission for validation, and 15 signatures where the notarization post-dates that submission (July 3, 2024).

“For the reasons herein, the Petitions are legally insufficient, the Secretary’s certification of the same is null and without legal effect, and the Court should enter appropriate injunctive and declaratory relief to prevent the corresponding Initiatives from appearing on the ballot and being voted on by the voters,” Kuehn’s lawsuit states.

In the alternative, Kuehn seeks to prevent votes from being tabulated on the measures or for Evnen to be prevented from tallying or certifying such results.

The campaign needs 86,499 valid signatures across its two petitions to regulate and legalize the drug. Evnen validated nearly 90,000 signatures on both petitions last week.

A brief filed on behalf of Evnen denied each allegation and said the two complaints dealing with paid circulators and notaries before circulators “lie outside the usual and customary signature verification process.”

“The Secretary lacks sufficient knowledge to admit or deny the allegation, and therefore denies,” Evnen’s brief states.

‘Functional signature recount’

Attorneys for Crista Eggers, State Sen. Anna Wishart and former State Sen. Adam Morfeld, the sponsors of the Nebraskans for Medical Marijuana campaign, said Kuehn’s lawsuit “attacks the integrity, credibility and accuracy of Nebraska’s election officials.”

“Plaintiff requests the equivalent of a recount, implying that he is best equipped to make important election decisions currently left to the sound discretion of our election experts, who are equipped with significant resources and tools to make their individualized determinations,” a brief in favor of dismissing the lawsuit states.

The brief states the lawsuit should be dismissed because petitioners “substantially followed” the petition process. The attorneys state Kuehn’s efforts seek to imply a “strict and narrow” view of the initiative process that could hurt the “first power reserved” in the Nebraska Constitution.

The defendant brief states that Kuehn offers an “invitation” to the court to take on the role of state and local election officials for a “functional signature recount.” It also argues the lawsuit jeopardizes the state’s “core election processes” by questioning the integrity and accuracy of the process.

“They also threaten the initiative process more generally—a process the Nebraska Supreme Court reiterated just last week is ‘precious to the people and one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter,’” the brief states.

Evnen’s brief defends Wishart in a charge that she incorrectly filed her sponsor statement by listing her literal “street address” as is required under state law, but not her city, state or ZIP code. The brief on Wishart’s behalf says other statutes and court cases are in her favor.

Evnen wants court to weigh in

Evnen, however, could also be joining part of the lawsuit against the cannabis petitions, asking in his filing that the court take up the case and determine the true number of valid signatures.

Part of that comes as Nebraska Attorney General Mike Hilgers (R) continues a statewide investigation into possible “irregularities” on the cannabis petitions. The investigation does not revolve around the four other petitions that Evnen placed on the November ballot.

At least one Grand Island man has been charged with a felony for allegedly gathering at least 200 signatures fraudulently across the two cannabis petitions.

Evnen just last week praised election officials who he said “put the pedal to the metal and did a great job confirming these signatures,” which was more than 600,000 across the six petitions.

In a statement to the Nebraska Examiner, Evnen said he is not seeking to remove the initiatives from the ballot but seeks the court to have the final say.

“I have asked the court to examine all of the evidence concerning fraudulent signature claims and then decide whether the cannabis initiatives should remain on the ballot,” Evnen said.

Campaign blasts ‘baseless accusations’

Eggers, the campaign manager for the two medical marijuana petitions, said in a statement after the hearing that supporters were “not surprised” by the lawsuit and its “baseless accusations.”

This is the third attempt for the campaign that began in 2019 and has faced multiple setbacks, but this is the furthest the sponsors have gotten. In 2020, the campaign collected enough signatures but the measure was booted before the ballot was finalized.

This time, the two petition measures—Initiative Measures 437 and 438—will appear on the Nebraska ballot as the first ballots were sent to overseas voters Friday.

Eggers, who joined the efforts on behalf of her grade-school-age son who has severe epilepsy and seizures, said “an extremely small minority of individuals have taken it upon themselves to attempt to silence the voice of the people.”

Nebraskans for Medical Marijuana’s Response to Baseless Accusations: pic.twitter.com/5u3RCIysxJ

— Nebraskans for Medical Marijuana (@NebraskaMJ) September 20, 2024

“We have long been fighting for Nebraska’s most vulnerable patients, including our children and elderly, who are continuing to suffer through painful medical conditions after other treatments have failed, and when medical cannabis—an evidence-based treatment for many ailment—is accessible to patients one state over in every direction,” Eggers said.

Kuehn and his lawyers did not make a statement after the hearing.

Updated briefs on the motion to dismiss, and next steps, are due to Judge Strong on Tuesday. Kuehn’s attorneys said they would be willing to forgo expert witnesses and depositions to speed along the process.

This story was first published by Nebraska Examiner.

Read the medical cannabis campaign’s response to the lawsuit and state official’s counter-claim below: 

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