Nebraska Judge Rules That Medical Marijuana Ballot Votes Will Be Counted Despite Legal Challenge

“I cannot find that the evidence is so overwhelming…that the plaintiff is likely to prevail on the merits.”

By Zach Wendling, Nebraska Examiner

The votes cast for or against Nebraska’s two medical cannabis ballot measures Tuesday will be counted and made public, after a district court judge rebuffed a request to prevent both actions.

Lancaster County District Judge Susan Strong said she agreed with attorney Daniel Gutman, who is defending the ballot sponsors, that the “status quo” is to count votes on Election Day. She noted that it was Nebraska Secretary of State Bob Evnen (R) who certified the measures for the ballot and that Nebraskans are already voting.

Strong also ruled Friday against a request to delay the trial.

Austin-based attorney Anne Mackin, on behalf of John Kuehn, who filed a lawsuit against the ballot measures, asked Strong to prevent the counting and tabulating of votes because the ongoing trial could invalidate the measures. Mackin said state law requires that only “valid” votes be counted. The measures would regulate and legalize medical cannabis.

“Without a TRO [temporary restraining order] or other injunctive relief before 8 a.m. on Monday, the horse is out of the barn, so to speak,” Mackin said.

Beginning Monday morning, 24 hours before polls open Tuesday, county officials may begin counting early or mail-in votes.

“Looking at the merits of the motion and the merits of the case, at this time I cannot find that the evidence is so overwhelming that I know right now, without looking at the exhibits and the rest of the witnesses and everything else, that the plaintiff [Kuehn] is likely to prevail on the merits,” Strong said Friday, adding that she’s not saying Kuehn can’t, or won’t, prevail as the trial continues.

Feasibility of the request

Attorneys from the Nebraska Attorney General’s Office, arguing on Evnen’s behalf, outlined challenges to nearly 80,000 petition signatures this week in a trial before Strong. Kuehn’s attorneys used their efforts this week largely to support the efforts of Evnen’s attorneys.

Deputy Solicitor General Zach Viglianco told Strong that he agrees with Mackin that the evidence could invalidate the measures but said that Evnen opposes not counting votes because of possible election integrity concerns.

Ballot-counting machines have already been programmed to count all ballot items, Viglianco said, and reprogramming the machines, days before the election, could be difficult.

Viglianco said it is “technically feasible” not to publicly release votes, though Evnen’s directions to county officials would be considered guidance, not a legal requirement, because the state’s 93 county officials are not part of the case. Strong said she wasn’t sure whether she even had the authority, as a judge in Lancaster County, to issue a statewide ruling.

Statewide election questions are usually directed to Lancaster County, particularly when they involve the secretary of state.

‘A travesty of democracy’

Among the state’s witnesses are Jennifer Henning and Michael Egbert, two paid circulator petitioners who said on the stand Thursday and Friday that they didn’t follow the law while gathering signatures. Both alleged that the notaries they worked with might also have broken the law.

Egbert has been criminally charged with a felony for using a phone book to forge signatures.

On Thursday, attorneys noted that Henning is on probation on two counts of felony insurance fraud and has in the past submitted fraudulent documents to courts. She has not been charged in the current case.

“I think it would be a travesty of democracy to halt an election off of the testimony of Michael Egbert or Jennifer Henning, and that’s essentially what the request is,” attorney Daniel Gutman, on behalf of the ballot sponsors, told Strong.

A notary takes the stand

Assistant Attorney General Justin Hall on Friday questioned another witness for Evnen: 22-year-old campaign worker Garrett Connely. On advice from his attorney, Molly Burton, Connely pleaded the Fifth Amendment against self-incrimination to nearly every question from Hall, including those questioning possible criminal wrongdoing.

Among those questions were Connely’s process as a top campaign volunteer, whether he followed the law in notarizing or circulating petitions and whether he had destroyed any communications.

Hall showed the court some of Connely’s texts to and from Henning and some between Connely and ballot sponsor Crista Eggers, campaign manager for Nebraskans for Medical Marijuana and a prospective witness. Eggers has not yet taken the stand.

A separate criminal case from the AG’s Office is under way. Connely and Eggers have not been charged. But Egbert and Jacy Todd, a notary from York, have been.

Among the Connely-Henning texts was a string in May when Henning asked how she could find a notary to sign off on petition sheets she had circulated. Henning asked if she could give her petitions to another notary.

“Sure, whatever works best for you!” Connely responded. “Otherwise, you can sign them and everything and I can swing by and grab them if you leave them in your screen door or something?”

“They are already signed and filled out,” Henning responded.

The Fifth Amendment

Much of the case revolves around alleged fraud and malfeasance on the ballot measures, with the attorneys for Kuehn and Evnen seeking to “impute,” or extend, any instances of wrongdoing to any and all petitions that those individuals touched.

For example, notarizations must be done in front of the person who signed the petition oath, and the notary must know the circulator.

The Attorney General’s Office has indicated at least 1,110 total instances of wrongdoing on petitions. Approximately 3,500 signatures on both measures would need to be tossed out to invalidate the election results.

In another exchange Connely had with Eggers, she detailed her panic in ensuring the campaign was successful in its third straight election cycle and said, “There is no more nice campaign. We don’t follow the rules anymore. And we just pay the consequences and hope it’s OK.”

In another exchange, Eggers and Connely discussed a campaign worker who they suspected might be a “plant” to invalidate the measures.

“We should probably be very careful,” Eggers told Connely. “Not lead him to question that we ever notarize things that aren’t in person and such. Just stay very clean.”

Because Connely pleaded the Fifth, the ballot sponsors’ attorneys and Mackin did not question him. But while addressing Mackin’s motion to prevent counting votes, Gutman said he had reviewed all of Connely’s texts and said they didn’t show what the AG’s Office was suggesting.

“I will say that, no offense, Mr. Connelly, but his text messages are profoundly boring,” Gutman said. “They pick two or three text messages, construe it out of context and then come up here and say, ‘Let’s halt an election.’”

Another circulator testifies

Earlier in the day, Egbert testified that he joined the 2024 medical cannabis campaign through a Facebook ad and spent about 45 minutes to an hour shadowing another circulator as part of his training. He testified that he would sign his petitions at home before dropping them off at Todd’s business in Grand Island.

Egbert said he had met Todd once. Egbert said he also never signed his sheets in front of a notary and never witnessed a notary notarize his sheets.

Gutman said Todd “vigorously” disputed those accusations during his deposition and said he talked with Egbert regularly, including about his neurological medical condition that Egbert said impairs his memory. A recent injury will prevent Todd from testifying in court.

“I would say he’s a lying man because, no, I did never sign anything in front of the man,” Egbert said about Todd.

Among other witnesses Friday were Dee Anne Nice, the Saunders County clerk, who oversees elections; Ronnie Golyar, an independent contractor for the state as a medication aide who helps Henning with her son; and Mark Sangor, a full-time forensic document examiner who reviewed about 150 signatures for the trial.

After Strong concluded that Kuehn’s attorneys hadn’t presented the “overwhelming” evidence needed to prevent votes from being counted Tuesday, Mackin asked to delay the trial until criminal investigations had finished.

Gutman objected, noting that Mackin and Viglianco earlier opposed delaying the trial when requested by the ballot sponsors.

Strong decided against Mackin’s motion after Friday’s hearing. Monday could be the final day in the trial. Election Day is Tuesday.

This story was first published by Nebraska Examiner.

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