Nebraska Medical Marijuana Measures Certified For November Ballot, But New Legal Challenges Could Block Votes From Being Counted

Nebraska officials have confirmed that a pair of medical marijuana legalization ballot initiatives will go before voters at the polls this November.

However, the fate of the measures may hinge on the outcome of new legal challenges from the state attorney general and a former GOP state senator. If either effort succeeds, the state could see a situation where voters decide on the proposals but officials are barred from counting and reporting the results of the election.

About two weeks after the secretary of state’s office initially confirmed that Nebraskans for Medical Marijuana (NMM) had submitted enough signatures to secure ballot placement, he formally certified those measure on Friday.

“County election offices and our Elections Division have put in exemplary work to ensure that all candidates were appropriately filed and that all petitions were verified and certified in time,” Secretary of State Bob Evnen (R) said in a notice, announcing the certification of six ballot initiatives including the cannabis ones.

But the official also said that an “investigation conducted by the Attorney General’s office has uncovered serious question about the signature gathering process for these petitions, and we have been advised that a signature collector is being charged with felony fraud.”

“Signatures that cannot be verified by county election workers are not included in the overall signature count. I am certifying the petitions because, at this point, they appear to have met the threshold signature requirements,” he said. “That could change in light of the Attorney General’s investigation. Both cannabis petitions will appear on the ballot, but a court could order later that the initiatives be thrown out.”

📄 News release: Secretary of State certifies pair of medical cannabis petitions for November ballot.

🔗 Full release here: https://t.co/2HyfM3Gb8f pic.twitter.com/UBeVnsYMhc

— NE Secretary of State Robert Evnen (@NebraskaSOS) September 13, 2024

Just before the certification deadline, Nebraska Attorney General Mike Hilgers (R) and Hall County Attorney Martin Klein announced felony charges against a petition circulator who supported the campaign, alleging that he potentially falsified thousands of signatures.

“Nebraskans expect secure elections. As we head into election season, Nebraskans should be confident that the election and law enforcement officials will work together to identify and investigate fraudulent activity,” Hilgers said in a press release on Friday.

Separately, former state Sen. John Kuehn (R) filed a lawsuit in the Lancaster County District Court on Thursday, seeking to invalidate the cannabis proposals on the basis that the campaign allegedly violated procedural rules under the state Constitution and that the reform proposals were preempted by federal law. Kuehn is affiliated with the national prohibitionist group Smart Approaches to Marijuana (SAM) that consistently seeks to undermine state and federal reform efforts.

On Thursday, NMM released a statement responding to that lawsuit by saying that Evnen has already “declared that both NMM initiatives collected enough valid signatures to be certified,” and the campaign is “confident NMM satisfied all legal requirements and gathered the required signatures to qualify for placement on the November ballot.”

Then on Friday, NMM’s Eggers reacted to the attorney general’s claims about potential petition fraud by saying that “it is important to reiterate that NMM provides extensive training to all petition circulators. Circulators are held to an extremely high standard and are required to strictly follow all legal requirements for collecting signatures.”

“Any circulators caught violating the law should be held accountable for their actions,” she added. “We are grateful to the Hall County Attorney and Attorney General for looking into any petition irregularities and working to protect campaigns and the integrity of the initiative process.”

Please see our statement below: pic.twitter.com/4LDZfHdKoq

— Nebraskans for Medical Marijuana (@NebraskaMJ) September 13, 2024

While the medical cannabis initiatives have now been certified, the attorney general emphasized on Friday that the court still could ultimately invalidate them, remove them from the ballot down or block the counting of votes if the lawsuit is decided in the plaintiffs’ favor.

Regardless of the uncertainty amid these legal challenges, Eggers said that the certification “marks a momentous day for the patients of Nebraska, who are one step closer to safe and regulated medical cannabis access.”

“We are grateful for all of the Nebraskans who have not only supported us, but been the heart and soul of this fight,” she said. “We look forward to November when the people’s voice on this issue will finally be heard.”

NMM had turned in more than 114,000 signatures for each of their proposals in July, and officials said about 89,000 have been verified so far, surpassing the 87,000 signature requirement for ballot placement. They also met the 5 percent threshold for signatures in 51 counties, exceeding the 38 that are required.

This marks the third time the campaign has attempted to let voters decide on medical cannabis legalization in recent years. Advocates have faced repeated setbacks in their push for cannabis reform in prior election cycles, so regardless of the legal complications, Friday’s certification comes as welcome news for advocates.

NMM had prioritized meeting a separate requirement to gather signatures from at least 5 percent of voters in a minimum of 38 counties across the state, and activists were successful to that end.

The campaign worked to put medical cannabis on the ballot for two prior election cycles. But the loss of critical funding in the last election cycle and intervention by the state Supreme Court in the prior attempt led to defeat.

The first of the two current ballot initiatives from the campaign would require lawmakers to codify protections for doctors who recommend cannabis and patients who purchase and possess it. The patient-focused measure says that its aim was to “enact a statute that makes penalties inapplicable under state and local law for the use, possession, and acquisition of limited quantities of cannabis for medical purposes by a qualified patient with a written recommendation from a health care practitioner, and for a caregiver to assist a qualified patient in these activities.”

The other initiative would create a new a Nebraska Medical Cannabis Commission to provide “necessary registration and regulation of persons that possess, manufacture, distribute, deliver, and dispense cannabis for medical purposes.”

The campaign got an early start on signature gathering this round. In addition to meeting the county-based threshold, activists successfully collected signatures from at least seven percent of registered voters statewide to qualify for the ballot.

Volunteers had been petitioning since last July, about two months after turning in the pair of complementary legalization initiatives to the secretary of state’s office.

Gov. Jim Pillen (R) has voiced opposition to the reform effort, saying last year that legalization “poses demonstrated harms to our children,” and that medical cannabis should only be accessible if its approved by the Food and Drug Administration (FDA).

One of NMM’s earlier campaigns gathered enough signatures for ballot placement in 2020, but the measure was invalidated by the state Supreme Court following a single-subject challenge. Supporters then came up short on signatures for revised petitions in 2022 due in large part to the loss of funding after one of their key donors died in a plane crash.

Nebraska lawmakers, including campaign co-chair Sen. Anna Wishart (D), have also attempted to enact the reform legislatively, but cannabis bills have consistently stalled out in the conservative legislature.

Wishart’s medical cannabis bill received a hearing in the unicameral Judiciary Committee last year, but it did not advance. She attributed the inaction to changes in committee membership. An earlier version of the measure ultimately stalled out in the GOP-controlled legislature amid a filibuster that supporters could not overcome.

Meanwhile, two adult-use cannabis legalization bills also received a hearing in the Judiciary Committee in August ahead of a special session convened by the Republican governor. They have not advanced further at this point.

Separately, lawmakers during a special session this summer considered a sweeping property tax relief bill that initially contained a steep new tax on consumable hemp and CBD products, but that provision was removed prior to final passage.

A prior tax bill for the earlier regular session initially contained a 100 percent tax rate on consumable hemp products. But following industry and consumer pushback, the proposed rate was reduced to 30 percent for the special session before being taken out of the bill.

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Photo courtesy of Philip Steffan.