Zach Wendling
LINCOLN — The trial over Nebraska’s two medical cannabis ballot measures began Tuesday with a broad examination into notary publics, citizen-led initiatives and the different groups that have reviewed the petition signatures.
The case in Lancaster County District Court involves two petitions from the Nebraskans for Medical Marijuana campaign that would legalize and regulate medical cannabis. Both petitions remain on the Nov. 5 ballot, but if this week’s legal challenges are successful, that could invalidate the election results. The trial picks back up Thursday.
The medical marijuana campaign needs 86,499 valid signatures. Nearly 90,000 signatures were verified on each petition.
‘Cheating is a choice’
Attorneys for John Kuehn, a former state senator and former State Board of Health member who filed the Sept. 12 lawsuit, and Secretary of State Bob Evnen, a defendant in the lawsuit, sought to frame the case around one question: “Following the rules.”
Anne Mackin, an Austin-based attorney and one of Kuehn’s lead attorneys, said the question is whether the campaign garnered enough signatures, and said she is being aided by an “unbiased third-party firm” that Kuehn hired to review the signatures. She said the firm found suspicious behavior involving the petition drive.
“These are not isolated incidents. This is large, large-scale, known malfeasance by key campaign workers,” Mackin said. “It’s a larger scale than my client ever could have imagined when initially filing this lawsuit.”
Mackin is a former Texas assistant attorney general who worked as legal counsel for the Texas Senate and Federal Election Commission.
Deputy Solicitor General Zach Viglianco in the Nebraska Attorney General’s Office, who is defending Evnen, said during opening arguments that “cheating is a choice.” He accused the ballot sponsors and a significant number of campaign circulators and notaries public of cheating Nebraskans.
“The choice those individuals made is an unfortunate one,” Viglianco said. “But it’s not a choice that can be ignored.”
Pursuit of the ‘magic number’
Sydney Hayes, an attorney for the ballot sponsors, said the goal of the opposing attorneys is to find enough questionable signatures to invalidate both petitions.
Hayes told Lancaster County District Judge Susan Strong that there isn’t enough evidence of “fraud” or mistakes, noting at most 706 questionable signatures on one petition and 394 signatures on the other.
“They simply can’t meet the numbers,” Hayes said. “In fact, they don’t even come close.”
The Nebraska Attorney General’s Office and Kuehn’s attorneys are focusing on the behavior of certain notaries, Hayes said, seeking to invalidate any signatures that they touched.
Hayes said invalidating that many signatures is “quite simply” not the law. She and Daniel Gutman, another ballot sponsor attorney, have argued no court nationwide has ever accepted.
Signature validation and notaries
Wayne Bena, deputy secretary of state for elections, testified that local county officials verify signatures by matching at least two of three identifying details –– printed names, birth dates or home addresses — to a voter’s registration file.
Bena testified that it is possible that county officials would not catch fraud, for example, if a circulator provided a registered voter’s information without their knowledge or consent. He noted county election officials also aren’t handwriting experts.
Much of Kuehn’s initial lawsuit focused on instances where the two-out-of-three rule wasn’t followed, or when the campaign wasn’t disclosing whether circulators were paid. However, Kuen’s attorneys largely avoided those arguments on Tuesday, for the most part focusing on notaries and circulators, like Evnen’s attorneys.
David Wilson Jr., associate general counsel for the Secretary of State’s Office and director of licensing, who oversees the work of notaries for the office, explained that notarizations give “presumptive evidence” over a matter’s legal validity.
Wilson said notaries must physically witness an “oath” and confirm the identity of whose documents they are notarizing. In this case, that’s a notarization for a circulator swearing to the validity of the signatures they’ve gathered.
The Nebraska Attorney General’s Office has alleged that thousands of signatures were collected where those requirements weren’t met.
Wilson testified that he is unaware of his office having criminal prosecutorial authority over notaries or of instances where one document being invalidated led to every document a particular notary touched being tossed.
At least one notary, Jacy Todd of York, has been criminally charged in the case. He faces 24 counts of alleged malfeasance. Todd is a prospective witness in the case but is currently facing medical issues that raised questions whether he’ll be able to testify in court.
Wilson said he is unaware of any other notaries being criminally charged for malfeasance.
Kait Madsen, an attorney for the ballot sponsors, asked Wilson whether there is additional training or continuing education for notaries, which he said there is not.
Wilson said a mistake doesn’t always mean malfeasance.
“Everyone makes mistakes,” Wilson said. “… It’s fact dependent on what happened.”
Dual investigations
Kory Langhofer, a high-profile, Phoenix-based elections attorney and co-founder of Signafide, a cloud-based petition validation service that Kuehn hired to review the petitions. The firm uses artificial intelligence and manual labor to review petitions nationwide.
Langhofer has represented various clients nationwide, including former President Donald Trump’s 2016 and 2020 campaigns, including questions about the 2020 Arizona election results; Carly Fiorina’s Republican presidential campaign in 2016; and then-Gov. Mitt Romney’s presidential campaign in 2012.
He testified that he began working in the ballot access field in 2011, has worked in all U.S. states and territories at least twice, and has reviewed at least 17 state ballot measure petitions, one of which involved a client favoring marijuana legalization.
Signafide’s process involves AI and hours of visual review, Langhofer said. However, he noted the firm didn’t receive all the scans of the Nebraska petition pages, so his estimates would likely undercount some alleged irregularities.
Hayes objected to using the network analysis because of Langhofer’s noted limitations. Mackin said the analysis is intended to corroborate evidence from the Attorney General’s Office.
John Brennan, a civil investigator and certified fraud examiner in the Attorney General’s Office, walked Viglianco through a handful of examples of questionable circulator or notary signatures and instances where a circulator notarized his or her own petition sheet.
Brennan said he has never investigated a case involving circulator fraud or notary malfeasance but said it is similar to consumer protection cases he’s investigated.
Brennan said he reviewed more than 25,000 pages and outlined multiple pieces of evidence with some “facial” defects that he said were improperly validated, some of which were forwarded to a handwriting expert who is expected to be called as a witness later this week.
The attorneys for Kuehn and the ballot sponsors will continue questioning Brennan on Thursday.