Nebraska Medical Marijuana Ballot Measures Challenged By Former State Senator’s Lawsuit

“We are confident NMM satisfied all legal requirements and gathered the required signatures to qualify for placement on the November ballot.”

By Zach Wendling, Nebraska Examiner

A former state senator who is also a former State Board of Health member filed a legal challenge Thursday seeking to invalidate two Nebraska ballot petitions related to medical cannabis.

John Kuehn of Heartwell, a veterinarian and rancher who has fought any form of marijuana legalization, argued the two measures should not be placed on the November 5 ballot. Kuehn—through attorneys Steven E. Guenzel, Cameron E. Guenzel and Andrew La Grone, also a former state senator—cites seven reasons, ranging from procedural violations to state constitutional and federal law infractions.

The lawsuit was filed Thursday afternoon in Lancaster County District Court.

Kuehn served in the Legislature in 2015-2019 and has been a leader in “Smart Approaches to Marijuana,” or SAM, a national organization that seeks to prevent “another big tobacco.” La Grone served two years in the Legislature, in 2019-2021, and is married to current State Sen. Julie Slama.

Both Kuehn and La Grone were close allies of then-Gov. Pete Ricketts (R) during their time in the Legislature. Ricketts appointed Kuehn to the State Board of Health and La Grone to the Legislature.

Seven alleged complaints

Through the lawsuit, Kuehn is seeking to prevent Nebraska Secretary of State Bob Evnen (R) from certifying both petitions for the November 5 ballot. If they are placed on the ballot, Kuehn seeks to prevent the state from certifying the election results of those measures if he is successful.

By state law, Evnen must certify the ballot by Friday because early voting ballots must be sent to overseas voters as early as next Friday, September 20. The lawsuit sets up a tight timeline for the lower court and a likely appeal to the Nebraska Supreme Court.

Judge Susan Strong has been assigned the case.

The two petitions would respectively legalize and regulate medical cannabis, extending legal protections to and defining who is a patient, caregiver or related medical provider. The petition is backed by Nebraskans for Medical Marijuana, led by statewide campaign manager Crista Eggers, State Sen. Anna Wishart of Lincoln and former State Sen. Adam Morfeld of Lincoln.

Evnen and the trio leading the campaign are named in the lawsuit.

A spokesperson for the Secretary of State’s Office said Evnen had no immediate comment and more information on the cannabis petitions would be available Friday.

In an official statement, the campaign said: “Secretary Evnen declared that both NMM initiatives collected enough valid signatures to be certified. We are confident NMM satisfied all legal requirements and gathered the required signatures to qualify for placement on the November ballot.”

Statement from NMM:

“Secretary Evnen declared that both NMM initiatives collected enough valid signatures to be certified. We are confident NMM satisfied all legal requirements and gathered the required signatures to qualify for placement on the November ballot.” https://t.co/jMJHEwUst0

— Nebraskans for Medical Marijuana (@NebraskaMJ) September 12, 2024

Kuehn alleges the following reasons that should invalidate the petitions:

• Delays from the Nebraska Secretary of State’s Office in making copies of signatures available for public scrutiny upon request. The lawsuit states Secretary of State Bob Evnen has a duty to ensure that “any diligent challenger has a meaningful opportunity to exercise their right to seek review and appeal” before he certifies the ballot.
• Not enough valid signatures for ballot access.
• A failure of Evnen to strike duplicative signatures.
• An invalid sponsor statement from State Sen. Anna Wishart of Lincoln.
• A violation on both petitions related to the state’s constitutional “single subject” rule that all measures must contain only one subject.
• An unlawful delegation of power to a proposed Nebraska Medical Cannabis Commission that would oversee regulation of medical cannabis.
• Preemption of federal laws that prohibit marijuana as a Schedule I drug.

“Plaintiff is entitled to expedited injunctive relief,” the lawsuit states.

‘Invalidities may be uncovered’

Kuehn argues that based on the petition pages he had reviewed and in evidence that will be presented to the court, many signatures were invalid and “unlawfully accepted by the secretary.” Under state law, counties share the burden of validating signatures and must do so within 40 days of receiving the signatures from Evnen’s office in Lincoln.

Evnen announced August 30 that the signature validation process was ongoing but that both medical cannabis petitions had collected more than enough signatures for ballot access. He has not yet certified the measures for the ballot, which must be done to go to voters November 5.

Kuehn, through La Grone, requested the signatures September 3. As of Thursday, the filing states, Kuehn still has not received access to signatures from eight counties.

The lawsuit cites these forms of invalidities:

Signatures from people who were not registered voters, whose date of birth didn’t match their voter registration or who did not include an address when they signed.

Duplicative signatures.

Signatures collected before petition circulation officially began last year or that were collected after a July 3 deadline.
Other fraudulent forms of signature collection, including false notarization.

The lawsuit does not specify evidence of a single signee under any of the types of invalid signatures outlined or how many signatures might be thrown out. However, the lawsuit states, Kuehn “has good reason to believe” there won’t be enough signatures after that process.

“Plaintiff is unable to provide the total number of signatures that are invalid for each of these reasons because the signature pages of the Petitions have not been provided,” the lawsuit states. “As the signature pages of the Petitions continue to be produced, Plaintiff anticipates that invalidities may be uncovered.”

Attorney General Mike Hilgers (R) announced Thursday he is hosting a Friday morning news conference to announce “uncovered falsification of voter signatures in the petition process.” It was unclear which of several petitions he planned to discuss.

The Attorney General’s Office had no immediate comment on the lawsuit.

The Nebraska Constitution requires proponents in initiative measures seeking to create new state laws to collect signatures from at least 7 percent of registered voters. Of those, they must be distributed among 5 percent of the registered voters in at least 38 of the state’s 93 counties.

The campaign submitted more than 114,000 signatures July 3 for each of its two petitions.

“Unofficial interim results” cited in the lawsuit indicate 89,841 valid signatures and 52 validated counties as of September 5.

Kuehn elevated his public records request to Hilgers. Hilgers is a former lawmaker who also opposed medical marijuana and has led a statewide campaign against delta-8, which contains THC, the compound in the cannabis plant most commonly associated with getting a person high.

Medical marijuana state history

The 2024 election cycle marks Nebraskans for Medical Marijuana’s third attempt to qualify for the ballot, beginning in 2019 after legislative efforts had stalled.

That year, La Grone requested an attorney general’s opinion on legislation from Wishart, which stated her legislation would likely be “preempted,” or made mute, by federal law prohibiting any form of cannabis. The lawsuit cites that opinion and U.S. Supreme Court precedent.

In May, the federal government officially began what could be a lengthy process to reclassify marijuana from a Schedule I drug, on the same level as heroin or LSD, to a Schedule III drug, on the same level as Tylenol with codeine or ketamine.

As of February, 38 states allowed cannabis for medical use, and 24 of those states have also legalized recreational marijuana use, according to the Pew Research Center. Washington, D.C., has also legalized both.

In 2020, the campaign submitted enough signatures, but the issue did not reach the ballot after a similar challenge from Lancaster County Sheriff Terry Wagner argued the efforts constituted more than one “single subject.” The Nebraska Supreme Court agreed in a 5-2 opinion.

In 2021, separate state-level legislation stalled 31-18, two votes short of passage. The campaign tried again before the 2022 election but didn’t get enough valid signatures.

In September 2023, the group returned with two separate petitions in what it said would be the final attempt, banking on success at the ballot box.

‘Single subject’ constitutional rule

The lawsuit argues the divided petitions each also violate the “single subject” rule.

On the legalization petition, the lawsuit states it includes whether to legalize the drug and how to protect authorized individuals. For the regulatory petition, it argues insufficiency because it would legalize the drug, create a new Nebraska Medical Cannabis Commission and revolves around whether to “divest of the Legislature” of its legislative authority over cannabis.

Nebraska’s high court has taken a more stringent view of the “single subject” requirement when it comes to ballot measures than to legislatively enacted laws.

Two other ballot measures, both related to abortion, also face single subject challenges. The Supreme Court considered those arguments Monday and is expected to decide by Friday morning.

Kuehn’s lawsuit also challenges the constitutionality of the medical marijuana measures because Wishart, when signing the sworn affidavits for the petitions last year, included her home address without specifying her city, state or ZIP code. State law requires “street address.”

Kuehn’s lawsuit states that because the law is “mandatory and directory,” the omission renders both initiatives legally insufficient and says they shouldn’t be placed on the ballot.

‘I know what is killing my child’

Opponents of medical marijuana, including Gov. Jim Pillen (R), have often argued that access to medical marijuana should be allowed only if the U.S. Food and Drug Administration approves of it. Pillen has said legalizing marijuana “poses demonstrated harms to our children.”

Ricketts in 2021 made national headlines for stating that if voters legalized marijuana, “you’re gonna kill your kids.”

Eggers helped organize the petitions on behalf of her son, who has epilepsy and severe seizures. She said in September 2023 when launching the 2024 campaign that she “just can’t get behind” the comments from Ricketts or Pillen because she knows what is harming her son, who she described as a “typical kid” who loves flag football and Legos.

“I know what is killing my child, and that is having horrific seizures daily for the last five, six years,” Eggers said at the time.

The campaign had no immediate comment on Kuehn’s lawsuit.

Kuehn is also being represented by attorneys Steven E. Guenzel and Cameron E. Guenzel, as well as Austin-based attorney Anne Marie Mackin of Vantage Legal. Mackin is a former Texas assistant attorney general who worked as legal counsel for the Texas Senate and Federal Election Commission.

The Attorney General’s Office had no immediate comment on the lawsuit.

This story was first published by Nebraska Examiner.

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