Zach Wendling
LINCOLN — Attorneys on the final day in Nebraska’s civil trial involving two medical cannabis ballot measures summed up the case in very different ways: They were either isolated mistakes and “human error,” or they were widespread, “serious, intentional wrongdoing.”
Monday marked the fourth and final day of the trial before Lancaster County District Judge Susan Strong. A final decision won’t come for at least two weeks, as attorneys file post-trial briefs directing Strong’s attention to evidence for or against disqualifying the measures.
The efforts — Initiative Measure 437 to legalize medical cannabis and Initiative Measure 438 to regulate the drug — remain on Tuesday’s ballot. The votes will be counted and the results made public.
‘The ends justify the means’
Steven Guenzel, one of four attorneys who brought the initial Sept. 12 lawsuit on behalf of John Kuehn, a former state senator and former State Board of Health member, said Monday that the case wasn’t about the legitimacy of marijuana or a “few isolated situations.”
Guenzel said he believes the advocates for the Nebraskans for Medical Marijuana campaign were zealous and cared very much, yet for some, “that zeal gave way to something worse.”
“That zeal gave way to, ‘The ends justify the means,’” Guenzel said.
Deputy Solicitor General Zach Viglianco, defending Nebraska Secretary of State Bob Evnen in the lawsuit, in opposition to the campaign’s three ballot sponsors, said it isn’t unprecedented to ask the judiciary to be the state’s “constitutional watchdog.”
But what is unprecedented, Viglianco argued, is the “widespread, pervasive and serious, intentional wrongdoing that was undertaken by individuals associated with the petition campaign.”
The attorneys for Kuehn and the Nebraska Attorney General’s Office have joined forces to challenge at least 80,000 signatures on the two campaigns, largely by extending observed circulator fraud or notary malfeasance to every petition those individuals touched.
Evnen previously certified nearly 90,000 valid signatures on both petitions. They need at least 86,499 valid signatures, which local county election officials are charged with verifying.
‘Potentially disastrous consequences’
Daniel Gutman, an attorney for the ballot sponsors, dismissed those arguments, stating that no court has said improper notarizations should discredit all other documents they touched.
Viglianco and Assistant Attorneys General Justin Hall and Phoebe Lurz offered multiple examples of improper notarizations, including a circulator notarizing the signatures they gathered, notaries putting the wrong date when they notarized, notaries signing off on a sheet that lacked a circulator’s oath and sheets where a notary’s stamp was crossed off and replaced.
Gutman said some of those were mistakes, while the AG’s Office argued they were fraud or malfeasance. Gutman said that argument could be extended to other notarized documents, such as wills, mortgages, purchase agreements and affidavits.
“The imagination doesn’t have to wander far to grasp the potentially disastrous consequences of the legal arguments advanced in this case,” Gutman said.
Gutman said the attorneys for Evnen and Kuehn assumed the worst but still couldn’t find enough signatures to toss the campaigns, finding about 706 direct instances of purported fraud or malfeasance on one petition, and 394 direct instances on the other.
Viglianco said those instances “cast an inescapable shadow of fraud on every single signature that the NMM campaign submitted,” so it’s impossible to tell what is “genuine.”
State’s key witnesses
One paid petition circulator, Michael Egbert of Grand Island, testified that he used a phone book to forge signatures and to fill in information for voters who didn’t sign the petitions.
Jennifer Henning of Omaha, another paid circulator, alleged that ballot sponsor Crista Eggers, the campaign manager, told her to pick up petitions she didn’t circulate, and that Henning later signed off on those signatures from Seward on Eggers’ behalf.
“That narrative, that entire story, is so compelling because it illustrates in one discrete story the intentional wrongdoing — the fraud, the malfeasance, the wrongful conduct — that exists throughout this case,” Viglianco said.
The AG’s Office showed a text between Henning and Eggers, in which Eggers told Henning, “As long as you just sign your petitions, I am comfortable notarizing them. I know you and that you are who you say you are.”
Gutman blasted Henning as having “absolutely no credibility” as she is currently on probation for two counts of felony insurance fraud; has previously submitted fraudulent documents to multiple Nebraska courts; and was sanctioned by a Douglas County district judge in 2020.
Henning was sick when the trial began but appeared on the second day, which Gutman said raised suspicion.
“She went from allegedly having ulcerative lesions in her vocal cords — ’I can’t talk,’ she emails the court — to having a very spirited and very vocal conversation with my colleague,” Gutman told Strong.
Viglianco asked why Henning, who must follow the law and talk to law enforcement as part of her probation and who vigorously supports medical marijuana, would lie.
Henning testified that she is “scared to death” of punishment, Gutman said, arguing that when the Attorney General’s Office called, she told them “exactly what they want to hear.”
Connely, Eggers and three other notaries pleaded a Fifth Amendment right against self-incrimination while on the stand or during depositions, citing ongoing criminal investigations.
‘She rolled the dice’
Evnen’s attorneys also showed a text between Eggers and Garrett Connely, a 22-year-old circulator and notary for the campaign, in which Eggers said “there is no more nice campaign.”
“We don’t follow the rules anymore,” Eggers responded. “And we just pay the consequences and hope it’s OK.”
Egbert, who has been charged with a felony, testified that he has a neurological condition that affects his memory. Egbert said local and state law enforcement had promised him that if he told the truth, it wouldn’t impact his criminal case in Hall County.
Hall County officials trained to catch invalidities caught Egbert, Gutman said, but it was the AG’s Office that assumed the worst of everyone involved with the campaign.
Gutman said, Egbert was used by Evnen’s attorneys “as a means of obtaining a political end and ensure that no Nebraskan has the opportunity to vote on medical cannabis.”
Viglianco said that the case wasn’t about “two bad apples” and that asking local officials to be “hypervigilant fraud and malfeasance detectors” is asking too much.
Jacy Todd of York, the notary charged in connection with Egbert’s admitted wrongdoing, has “vigorously” denied that he ever notarized a petition when Egbert wasn’t in front of him. Medical issues prevented Todd from testifying in person.
In another text, Eggers told a campaign volunteer that she couldn’t add anything to petition sheets, including ZIP codes, because it could invalidate the signatures.
Viglianco said that the texts corroborated the testimony of Egbert and Henning and that Eggers knew the campaign was breaking the rules.
“She rolled the dice. She made the choice to try her luck,” Viglianco said of Eggers. “She gambled. And she lost.”
Gutman and other attorneys for the ballot sponsors have argued that Eggers’ texts are being taken out of context.
Todd and Egbert and the only people who have been criminally charged in connection to the campaign, based on public court documents.
‘Human error’
Viglianco asked broadly why the ballot sponsors’ attorneys didn’t call State Sen. Anna Wishart or former State Sen. Adam Morfeld, the other two sponsors, as witnesses and why they didn’t show training documents or proof of training or outline other communications proving respect for the “rules.”
“The simple explanation is that that evidence wasn’t introduced because it does not exist,” Viglianco said. “Evidence of a rule-following, clean campaign has not been introduced because that was not the campaign that was run.”
Gutman read a deposition transcript from Connely, who told the AG’s Office that human error is “a part of life.”
Asked whether the state’s notary exam said human error in notarizations is allowed, Connely said no, “but you would like to think better of your government than to go after people for human error.”
“I think Garrett Connely speaks for tens of thousands of people who signed this petition, and maybe the electorate more generally: Why is our government so committed to undermining these initiatives?” Gutman told Strong. “Why is the government prosecuting people civilly and criminally for human error?”
Strong ordered the attorneys for Evnen and Kuehn to submit post-trial briefs by Nov. 12. Ballot sponsors are to respond by Nov. 15. Kuehn and Evnen may respond by Nov. 18.
If Strong sides with Evnen and Kuehn, the ballot sponsors could be allowed to “cure” or prove the legitimacy of any challenged signatures. If she sides with the sponsors, the case would end at the district court level.
No matter who prevails, Strong and multiple attorneys have said the case will likely be appealed to the Nebraska Supreme Court.
Nebraska’s constitutional officers will meet Dec. 2 to certify Tuesday’s election results. Legal challenges can continue after that date.