Nebraska medical marijuana ballot initiatives go to trial amid early voting

Opening arguments began Tuesday in an extraordinary last-minute court challenge lodged against a Nebraska medical marijuana legalization campaign as voters continued to cast ballots a week before Election Day.

The main question hanging over the lawsuit against Nebraskans for Medical Marijuana – brought by an anti-cannabis former state senator and later joined by Nebraska’s top elections official – is whether votes cast for two MMJ legalization measures will count.

Legalization advocates characterized the lawsuit as a desperate, last-ditch ploy to yank the measure by any means necessary from the ballot, where it seemingly is likely to pass.

“The state has failed and will continue to fail to meet their burden to prove that any of the signatures certified by the Secretary of State and local election officials should be thrown out,” Adam Morfeld, a co-sponsor of the Nebraskans for Medical Marijuana campaign, told MJBizDaily in a statement.

But with the trial scheduled to last at least the rest of this week, it’s unknown whether an answer will come before Election Day – and early voting in Nebraska has been underway for more than three weeks.

Lost in all the legal maneuvering is that Nebraskans appear to favor medical marijuana: 59% of respondents to a recent Midwest Newsroom/Emerson College Polling survey said they support MMJ legalization, compared with 33% opposed and 8% unsure.

Anatomy of a marijuana controversy

Cannabis advocates qualified two separate measures for the Nebraska ballot: One would legalize medical marijuana in the state; the other would allow for a regulated MMJ market.

A previous effort that combined legalization and regulation failed in the state Supreme Court, which declared the measure unconstitutional in 2020.

At issue in the trial that opened Tuesday before Lancaster County District Court Judge Susan Strong is whether nearly 50,000 signatures from registered voters that Secretary of State Bob Evnen certified on Sept. 13 – when he certified both MMJ measures – are in fact valid.

The day before, former Nebraska Sen. John Kuehn, a co-founder of anti-cannabis organization Smart Approaches to Marijuana, filed a lawsuit challenging the measures’ qualification for the ballot.

Kuehn’s suit alleged, among other things, that “numerous signatures” on the qualifying petitions should be invalidated.

Hours before Evnen certified the measure, prosecutors filed criminal charges against a paid signature-gatherer for allegedly submitting voter signatures he’d forged after copying names out of a phone book.

That led to a separate challenge from Evnen, who claimed in court filings that nearly 50,000 of the 115,000 signatures submitted by the campaign were questionable.

Criminal charges also have been brought against notary Jacy Todd, whom Evnen alleges notarized 2,794 signatures, 2,030 of which were certified.

Burden of proof on state

For now, the burden of proof appears to be on Evnen and the state.

Strong, the presiding judge, said in a pretrial hearing earlier this month that the plaintiffs, Evnen and Kuehn, must prove that “intentional fraud was committed, not just clerical errors,” Omaha TV station WOWT reported.

The plaintiffs also must demonstrate that enough signatures are suspicious that it’s questionable the petition would have qualified without them.

If the plaintiffs can’t prove their premise, the trial ends; if they can prove it, the burden then falls on the initiative sponsors to prove the signatures are valid.

Nebraska’s attorney general, working on Evnen’s behalf, subpoenaed state elections officials to testify at trial whether the signatures are valid, according to Hastings TV station KSNB.

In addition, Mark Porto, an attorney for Todd, said in an Oct. 16 affidavit filed in Lancaster County that the state attorney general’s office contacted the notary facing criminal charges in an attempt to get him to testify in the case.

According to Porto, “It was suggested (by the Attorney General’s Office) there would likely be a benefit to Mr. Todd” in his misdemeanor case if he testified.

Todd declined to participate, Porto’s filing claims.

No ‘intentional wrongdoing’

Nebraskans for Medical Marijuana argued in an Oct. 7 court filing that “Evnen has not alleged any intentional wrongdoing” by the notaries who signed off on the signatures now alleged to have been forged.

“According to Secretary Evnen, if a single petition is improperly notarized for any reason, every petition notarized or circulated by that notary is presumptively invalid as a matter of law,” the filing continued.

“Proceeding on this theory, Secretary Evnen asks the Court to invalidate nearly 50,000 valid signatures for each initiative based on a handful of unspecified notarial errors.”

Chris Roberts can be reached at chris.roberts@mjbizdaily.com.