Zach Wendling
LINCOLN — Attorneys summarized their arguments this week for why a district court judge should void the election results last week for Nebraska’s successful medical cannabis ballot measures.
On Nov. 5, Nebraskans overwhelmingly voted to legalize and regulate medical cannabis, though a legal challenge continues in Lancaster County District Court. The lawsuit, filed by John Kuehn, a former state senator and former member of the State Board of Health, seeks to invalidate those measures, citing allegations of systemic fraud and malfeasance that “permeated” the process.
Kuehn sued the three ballot sponsors of Nebraskans for Medical Marijuana, as well as Nebraska Secretary of State Bob Evnen, who certified the measures for the ballot.
‘Court cannot turn a blind eye’
Since then, Evnen, through the Nebraska Attorney General’s Office, has joined Kuehn in arguing that tens of thousands of petition signatures were “tainted” by circulator fraud or notarial malfeasance.
The campaign needed at least 86,499 valid signatures on each petition for ballot access, which Evnen said the campaign reached Sept. 13, although he cautioned that a civil investigation continued into the petition effort.
The main arguments from Kuehn and Evnen allege that “cheating is a choice” and that instances of fraud or malfeasance should eliminate the presumption that other signatures a circulator or notary touched were validly collected.
“This Court cannot turn a blind eye to the sponsors and [Nebraskans for Medical Marijuana] campaign members’ willful disregard of the Nebraska Constitution and the statutory scheme that regulates the initiative process,” the AG’s Office wrote in a Tuesday brief on behalf of Evnen.
Kuehn’s attorneys have endorsed and similarly advanced Evnen’s arguments that notaries regularly and willfully did not notarize circulators’ petition pages while in the presence of one another, self-notarized petitions they circulated or notarized without a circulator’s oath present.
Notarizations add worth to a signature on a piece of paper, Evnen’s attorneys add, alleging that the “pervasiveness” of fraud makes it “practically impossible” to distinguish genuine signatures.
“Intentional wrongful conduct permeated the campaign from top to bottom,” the AG’s Office brief states. “Their abuse of the public trust, their willful disregard for the law, their willingness to let the ends justify the means have brought us here.”
If District Judge Susan Strong accepts those arguments, she could allow the ballot sponsors to try to “rehabilitate” signatures and prove their validity. Evnen’s attorneys argue that would be “futile.”
Strong could also rule against or for the sponsors outright and end the trial.
No matter the outcome, Strong and attorneys involved in the case have signaled the ruling would likely be appealed to the Nebraska Supreme Court.
What have other courts said?
The core of legal arguments advanced by Evnen’s attorneys hinges on a 1919 Nebraska Supreme Court case dealing with an anti-women’s suffrage referendum that allowed all signatures tied to a circulator who had committed fraud to be tossed from the ballot, defeating the anti-suffrage effort.
A 1992 Nebraska Attorney General’s Office opinion, which doesn’t carry the same weight as a judicial ruling, suggested the same standard could be applied to notaries.
Evnen’s attorneys point to both the 1919 ruling and the 1992 opinion and nod to other states that have tossed election measures or results because of wrongdoing or fraud.
Kuehn’s original lawsuit was broader, including alleged irregularities in voters’ printed names, birthdates, addresses or other information, which Evnen denied. Strong allowed that claim to move forward, as well as a “cross-claim” from Evnen, but dismissed Kuehn’s other allegations.
When the trial began, Kuehn’s attorneys instead focused on notaries and joined Evnen’s argument They said in filings Tuesday that the ballot sponsors “had no interest in the rules” and that when someone’s credibility is questioned, that can be extended to other actions.
“It is the individual’s credibility that is impeached, and all acts by that person can be determined to have lost credibility,” Kuehn’s attorneys wrote.
The ballot sponsors’ attorneys accused Evnen and Kuehn during the trial of focusing on notaries specifically because they couldn’t find a path to invalidation, so they ignored past precedents.
The sponsors’ attorneys have said no court in the nation, to their knowledge, has ruled that “notarial malfeasance” can be extended to all documents. They’ve said that could affect any unrelated documents, such as wills, purchase agreements or other legal documents that a notary has witnessed.
“Even worse, Nebraska’s highest election official advances a burden-shifting framework that threatens to undermine and eliminate the initiative right altogether,” the sponsors’ brief states.
The ballot sponsors were given until Friday to file their post-trial brief. The opposing attorneys can offer a response, if needed, by Monday.
The AG’s Office said if the signatures are allowed to stand, that could “undermine the people’s faith in the precious power of initiative” or send a message that cheating is allowed, so long as enough can be concealed or covered up behind a guise of “potentially” valid signatures.
Key witness testimony
Throughout a four-day trial, the state’s attorneys narrowed in on Crista Eggers, a ballot sponsor and the campaign manager for the measures. They showed texts where she told campaign volunteers to “push the limits” or ignore “the rules,” which the AG’s Office said included the law.
“There is no more nice campaign,” Eggers said in one text to a top campaign volunteer. “We don’t follow the rules anymore. And we just pay the consequences and hope it’s OK.”
The attorneys for the ballot sponsors have alleged that Eggers’ texts are being taken out of context and didn’t show what the AG’s Office alleged.
Among the witnesses for Evnen were two paid circulators, Michael Egbert of York and Jennifer Henning of Omaha, who said they violated the law.
Egbert pleaded guilty last week to a Class I misdemeanor of “attempting” to commit a Class IV felony of falsely swearing a circulator’s oath. He admitted to using a phone book to forge voter signatures. Eggers was a notary for six petition pages for Egbert.
“Ms. Eggers has no memory of notarizing Egbert’s petitions and states these documents were notarized by mistake, likely because they were inadvertently mixed with a stack of petitions from circulators that properly showed Ms. Eggers their ID and signed in front of her,” the ballot attorneys wrote on Eggers behalf in a legal filing.
Henning has not been charged with a crime She alleged that Eggers told her to pick up petition pages from Seward County, sign the oath of a petition she didn’t circulate and drop them off at Eggers’ house to notarize later.
The ballot sponsors’ attorneys moved to impeach Henning’s testimony, citing that she is on probation for two counts of felony insurance fraud and has submitted fraudulent documents to Nebraska courts in the past decade. Henning offered texts to corroborate her testimony and said she is on medications to help her mental health, which she said led to that past behavior.
Other evidence presented at the trial included expert testimony from Mark Songer, a forensic document examiner from Colorado, who reviewed about 150 circulators’ signatures from five people at the request of the AG’s Office.
Songer said his review suggested possible forgeries on signatures for three of the five circulators, though he later confirmed he didn’t review each circulator’s signatures and was doing so in a condensed timeline.
The AG’s Office briefs stated that the office was unsuccessful in locating all three circulators with alleged forgeries to confirm whether they signed and circulated the suspected petitions.
Impact to election results
Initiative Measure 437, the legalization petition, passed with 71% voter support. Initiative Measure 438, the regulatory petition, passed slightly behind with 67% of voter support.
Citing a Nebraska Supreme Court case from 1905, the AG’s Office said an election is allowed to be “rightfully quashed” if the process is so “infused” with fraud, corruption or “gross irregularity” that lawful votes can’t be determined.
“The appropriate remedy is declaring the result of the elections void,” the AG’s Office said.
Nebraska’s state constitutional officers will meet Dec. 2 to certify the election. Legal arguments can continue after that date.
That board consists of Evnen, Attorney General Mike Hilgers, State Auditor Mike Foley, State Treasurer Tom Briese and Gov. Jim Pillen. Foley and Pillen have criticized the medical marijuana petition campaign. Briese and Hilgers voted against the most recent legislation while serving in the Legislature.