“Nebraska's pro-initiative public policy does not allow initiative petitions to avoid judicial review.”
Zach Wendling, Nebraska State Examiner
A Lancaster County District Court judge will soon decide whether to dismiss a lawsuit against two Nebraska medical marijuana ballot measures based on a new set of briefs filed Tuesday.
Judge Susan Strong set a Tuesday deadline for parties identified in the lawsuit to consider it. John Kuehn of Hartwell, a veterinarian, rancher, former state senator and former Nebraska State Board of Health commissioner, filed the lawsuit. The lawsuit names Secretary of State Bob Evenen and three sponsors of the Nebraska Medical Marijuana Campaign.
Sponsors include Lincoln state Sen. Anna Wishart (D), campaign manager Krista Eggers, and former Lincoln state Sen. Adam Morfeld (D).
Strong said last Friday that he intended to make a “last minute” decision this weekend on Wishart, Eggers and Morfeld's motion to dismiss the case. Things got even more complicated after Evnen asked the court to take up the case anyway and determine once and for all the true number of valid signatures.
The two central petitions scheduled to appear on the November 5th ballot are:
Initiative Measure 437, Nebraska Medical Marijuana Regulation Act—Definition of Cannabis. Legalizes the possession, manufacture, distribution, delivery, and dispensing of cannabis for medical purposes. and creating the Nebraska Medical Cannabis Commission to oversee new state law. Initiative Measure 438, Nebraska Medical Marijuana Patient Protection Act — sets the allowable amount of medical marijuana at 5 ounces. Exempting patients and caregivers from using cannabis or helping others use cannabis. A written recommendation from a healthcare professional is required before prescribing.
“Nebraka’s Leading Public Policy”
Kuehn's lawyers said “outrage” over Kuehn's decision to proceed with the lawsuit was “misplaced” and argued that the thousands of fraudulent signatures were enough to disqualify the case.
“Nebraska's pro-initiative public policy does not allow initiative petitions to avoid judicial review,” Kuehn's brief states.
Kuehn is also the leader of Smart Approaches to Marijuana (SAM), a national organization that aims to prevent “the other big tobacco.”
Wishart Eggers Morfeld's brief states that Mr. Kuehn has “requested what amounts to a recount” and that “significant He claimed that he was hinting that he was “best equipped to make electoral decisions.” .
“They (Mr. Kuehn and his attorneys) are also threatening the initiative process more generally. The Nebraska Supreme Court ruled just last week that the process is “valuable to the public, and the court must maintain its spirit to the best of its ability.'' “He reiterated in his letter that he was keen to
Kuehn's lawyers reject that “breathless and inflammatory characterization” and ask the court to finally determine the number of valid signatures in addition to Evenen's work. he pointed out.
“Public trust” in elections
Part of Evnen's brief was written by Nebraska Attorney General Mike Hilgers (R), a former state lawmaker. Hilgers opposes medical marijuana and Delta-8, which contains THC, the compound in the cannabis plant most commonly associated with getting high.
Mr. Hilgers is also investigating charges of marijuana petition fraud, and uncovered at least one charge of petition fraud that led to the arrest of a Grand Island man on a felony charge.
But Evnen-Hilgers' brief suggests a broader reason for the lawsuit, stating that “public trust in the electoral process is the foundation of democratic governance.”
Evnen's brief cited a 2012 report by the Global Commission on Elections, Democracy and Security, which said that credible elections are needed to avoid the risk that “entire political systems slowly rot away from within.” It states that.
Evnen's lawyers say he is defending his office, election officials and the verification process, and that Evnen must “carefully and zealously protect the integrity of all aspects and stages of the election process.” There is.
Evnen is pursuing this claim because the Grand Island case “raises suspicions of unusual and serious misconduct,” the attorney general's office wrote.
“Significant misconduct of this type undermines public confidence in the electoral process,” the attorney general's office said in a written statement on Evnen's behalf. “It is imperative that these irregularities be investigated and any uncertainty regarding the validity of signatures that may have been tainted by fraud or dishonesty formally resolved.”
“Estimation of effectiveness”
The Evnen brief alleges that at least one notary signed a Grand Island man's petition without a notary present, and also calls into question many more signatures.
The brief states that the “presumption of validity” of the signatures on these petitions is lost, but sponsors can present evidence to have the signatures “remediated.”
“Indeed, stripping away the presumption of legitimacy is a powerful medicine,” the Evenen brief states. “But here it is justified.”
Mr. Kuehn's lawyers joined Mr. Evnen in calling for thousands more to sign the petition, calling Grand Island's claims “questionable.”
Evnen and Hall County Elections Commissioner Tracy Overstreet confirmed that the allegedly fraudulent signatures were removed before the ballots for the Nov. 5 election were certified.
The sponsor's lawyers claim that Evenen did not identify a single signature that was “miscounted” during verification.
“Indeed, in the same pleadings, he (Evnen) affirmatively denies plaintiff's claim that he miscounted signatures,” the sponsor's brief states.
Lawyers for the sponsors said Kuehn's lawsuit and Evnen's motion will lead to a decision on whether to reactivate the more than 228,000 signatures on both petitions.
Kuehn's claims include signatures from voters who did not provide complete information (date of birth, address, signature, etc.) and signatures from voters who signed the petition but did not disclose whether the signature was paid. was also included.
Messrs. Kuehn and Evnen's brief argue that the requirement for a paid or unpaid circulator is a critical requirement that should not be overlooked by courts and should be left to the sponsor's defense.
“Single Subject” Claim
Kuehn also argued that measures related to the regulation of medical marijuana are comprised of a variety of “subjects” that violate the Nebraska Constitution, and that the creation of the new commission is due to private entities decriminalizing marijuana and claimed to be different.
Lawyers for Wishart, Eggers and Morfeld pointed to 2020, when a successful gambling ballot measure expanded the Nebraska Horse Racing Commission to become the Nebraska Horse Racing and Wagering Commission, which oversees the expansion of gambling. . They also argue that these topics are “naturally and necessarily related,” as the Nebraska Supreme Court has required.
Also, when the high court ruled on the constitutionality of a gambling petition to the ballot in 2020, it rejected the only medical marijuana petition from the ballot based on a single subject matter. As a result, the sponsors split the petition into two parts in subsequent voting efforts.
Kuehn's lawyers argued that while there was no “natural regulator” of gambling at the time, the Nebraska Department of Health and Human Services and the Board of Pharmacy already oversee all medications and prescriptions, so the approach to cannabis was difficult. He said that it is different from gambling.
“Creating a new enforcement agency purely to regulate one drug is neither natural nor necessary for the general purpose of providing for the regulation of medical cannabis,” Kuehn's brief said. It is stated that.
In Evenen's first response to the court last week, his lawyers argued that single-subject issues should be left to the court's “final decision.” However, a brief filed on Tuesday said Evenen “firmly opposes” the challenge.
Legal requirements for litigation
Poll organizers claim Evennen's “counterclaims” are “purely hypothetical,” with the Secretary of State denying Kuehn's claims on the one hand and saying they should be considered by the courts on the other. .
“Rather than defending the work of his office or election officials across the state, Secretary Evnen is asking the court to perform his ministerial duties,” the sponsor's brief states. .
The sponsors argue that the court cannot rule on the matter yet because “no actual litigation or controversy” has yet occurred. Citing past case law, state reserve courts cannot determine facts that are “future, contingent, or uncertain.”
“This cross-claim is filled with insufficient conclusive allegations to sustain a motion to dismiss, since the facts on which his claim is based do not currently exist (and likely will not). Of course,” the sponsor's lawyers wrote. “…the cross-claims raise issues that are immature and unwarranted, and the court lacks jurisdiction.”
The Evnen brief says the court can help Nebraskans have “utmost confidence” in the integrity and fairness of Nebraska's elections and election process.
Unless that certainty is resolved, Mr. Evnen's job satisfaction and performance “will be hampered,” the brief continues. He and Hilgers argue that the public needs assurances that public voting efforts and referendum privileges will not be compromised.
“Respect for constitutional and legal requirements that protect the integrity of the electoral process facilitates, rather than hinders, the exercise of those powers,” Evenen said.
This article was first published by Nebraska Examiner.
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