Lancaster County District Judge Susan Strong; September 20, 2024 (Zach Wendling/Nebraska State Examiner)
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LINCOLN – A Lancaster County District Court judge said Friday that ongoing legal challenges to two medical marijuana ballot measures in Nebraska may not be resolved by Election Day.
During a virtual hearing Friday, Judge Susan Strong proposed splitting the trial, which begins Oct. 29, into two parts. Under the proposal, Secretary of State Bob Evnen and lawyers for John Kuehn, a former state senator and former state health commissioner who filed the lawsuit, would first prove there were enough suspicious signatures. There is a need.
A challenge requires proving that a sufficient number of signatures are invalid based on allegations of technical or clerical error, distribution fraud, or fraud. If enough signatures are successfully challenged, poll organizers will have the opportunity to show evidence that some signatures were truly collected and should not be discarded.
“If we have to go to phase two in the latter situation, we are talking about moving beyond Election Day,” Strong said Friday. “The schedule is already so tight that I don't know if we can help it at this point.”
challenged signature
When Evnen certified the ballots on September 13, he confirmed that each petition had approximately 90,000 valid signatures. Petitions calling for the legalization and regulation of medicinal drugs each have a minimum threshold of 86,499 signatures.
John Kuehn, left, of Hartwell, speaks with Austin-based attorney Anne at the start of formal court proceedings in Lancaster County District Court that could decide the fate of a 2024 ballot measure on medical marijuana. -Looking at Marie Mackin. September 20, 2024 (Zach Wendling/Nebraska State Examiner)
Kuehn filed the lawsuit on September 12, and in his latest public filing, he asked for about 17,000 signatures on each petition.
Mr. Strong allowed Mr. Kuehn's case to proceed to determine what constituted a “clerical or technical error” and what could result in signatures being removed from the petition.
Evnen is seeking around 49,000 signatures on each petition for alleged circular fraud and notary misconduct. Mr. Strong said Friday that he would allow Mr. Evnen's challenge, which was started as part of Mr. Kuehn's lawsuit, to proceed “as a matter of fact” because the issues raised would be decided anyway.
“If the defendant can prove the authenticity of the signature, the signature may still count,” Strong instructed the court.
Timing of court decision
Ballot sponsor attorneys Sidney Hayes and Daniel Gutman expressed some hesitation about the proposed litigation timeline, especially given the proximity to the Nov. 5 election.
“Specifically, some of it took place before the election, creating an atmosphere in which the initiative might be effectively invalidated, when in fact it might not be invalidated in a second instance. “It would cause voter confusion and ultimately prejudice them to leave the election,” Hayes said.
Attorney Daniel Gutman is filing a lawsuit against a three-person sponsored ballot measure to legalize and regulate medical marijuana in Nebraska, including state Sen. Anna Wishart, Krista Eggers and former state Sen. Adam. He is one of three lawyers representing Mr. Morfeld. September 20, 2024 (Zach Wendling/Nebraska State Examiner)
Assistant Attorney General Jennifer Haxall said the proposal appears to be an “effective step forward.” She said the large number of signatures Mr Evenen disputes does not mean he is trying to “bury” the sponsor in considering the evidence. She said it's about election integrity.
The attorney general's office is considering bringing in handwriting experts to investigate. Haxall said if the court rules in favor of the plaintiffs, it would represent a “major election issue.”
“There's no gamesmanship going on here, sir,” Haxor said. “This is really just an effort to get to the truth as quickly and as concisely as possible.”
Mr. Kuehn's attorney, Ann Marie Mackin, said Mr. Strong's proposal appears to be consistent with past precedent in terms of the steps required in signature challenge cases.
Gutmann called Evenen's challenge “a broader effort to undermine the initiative's process.”
“We don't say that lightly,” Gutman told Strong. “I know that's a bold statement, but he has never been employed in this case in a single court in Nebraska, and to our knowledge, he has never been employed in a single court in Nebraska in this case.” It is justified here because it is advancing a position that has never been adopted in the entire country. ”
Jennifer Haxall, Director of Civil Litigation, Nebraska Attorney General's Office. August 2, 2024. (Zach Wendling/Nebraska State Examiner)
Fuchsall responded, “Fraud and illegal activity in signature gathering is inherently non-technical. Nebraskans have a right to know if it happened here.”
Acting Attorney General Zach Viglienko said Evenen's case was not about “a simple technical error” or “simple sloppiness or mistake,” but a “deliberate” violation of state rules and laws.
Mr. Evnen and Mr. Hilgers named a total of eight notaries and four distributors of petitions, two of whom have faced criminal charges, who they say committed fraud or misconduct. An additional 24 people are named in the lawsuit. No new criminal charges have been filed.
“It's quite a tremor.”
Strong said he would “probably” order the parties to comply with the revised schedule, which he said was “really in the defendant's interest more than anyone else.”
“I don't see how you can focus on responding to the plaintiffs and the Secretary of State while proving the authenticity of the signatures,” Strong said. “I mean, that sounds like a lot of work. That’s why we need to see if there is enough fraud, actual provable intentional fraud, that these petitions are legally insufficient. I thought that was meaningful, but it may not be the case.''
Ms Strong said she wanted to work with everyone involved in the case to ensure they were given the opportunity to be heard.
“You have that certainty because the initiative is on the ballot,” Strong said. “My duty is to follow case law and statute to determine whether these petitions are legally insufficient or sufficient. I think that's the best way to proceed.”
The trial is scheduled to begin on October 29th and could continue on October 31st and November 1st if necessary. The election is November 5th, and early voting has already begun.
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