2 weeks Ago By CHRIS DUNKER Lincoln Journal Star
Secretary of State Bob Evnen fields questions from reporters during a news conference on ballot certification in the Capitol Rotunda on Sept. 13. Nebraska's top election official said in a court filing he believes a review of signatures on two petitions circulated by Nebraskans for Medical Marijuana could result in the matters being pulled from the ballot.
Secretary of State Bob Evnen on Thursday asked a court to determine whether or not the petitions were legally sufficient to go before voters on Nov. 5 despite having certified both initiatives on Sept. 13 .
If the court sided with a challenge seeking to invalidate thousands of signatures, Evnen asked the court to either legally remove the measures from the ballot or declare them void and to not be counted. The abrupt turn comes as a Lancaster County District Court judge considers a lawsuit brought by a former state senator and anti-marijuana advocate that seeks to strike the medical marijuana petitions from the ballot once again. Nebraskans for Medical Marijuana, who qualified petitions that would enact laws legalizing cannabis for medical use and creating regulations for them, asked Judge Susan Strong to throw the lawsuit out.
The complicated case had its first hearing in Lancaster County District Court Friday afternoon. The lawsuit filed on Sept. 12 by John Kuehn, a former state senator from Heartwell, sought to bar Evnen from including the initiatives on the ballot or from certifying their results during the general election.
In July, Nebraskans for Medical Marijuana submitted more than 114,000 signatures on each of its two petitions . Last week, Evnen said the petitions had met both requirements outlined in state statute to be placed on the ballot. Nebraskans for Medical Marijuana collected valid signatures from 5% of voters in 52 counties, more than the 38 required, Evnen's office said, and had gathered the names of 7% of all registered voters in the state.
But Kuehn, in an amended complaint filed earlier this week following a review of the petitions obtained through a public records request, alleged Evnen's office "illegally counted" more than 3,400 signatures during the review. Had those signatures been ruled invalid, Kuehn argued both petitions would have fallen short of the 86,499 valid signature number needed to meet the 7% requirement. Kuehn's amended complaint indicated he believes more than 17,000 signatures could be ruled invalid: more than 2,433 signatures were from individuals who are not registered to vote in Nebraska; 411 had incorrect birthdates; 134 did not include addresses; 67 were duplicates; 60 were signed before the campaign launched; 568 were invalid because the circulator was not in the presence of the notary.
Kuehn, a co-chair of Smart Approaches to Marijuana Nebraska, also alleged that more than 13,000 signatures should be thrown out because the circulator did not disclose whether they were paid by the campaign or a volunteer. The amended complaint also pointed to charges announced last week by Attorney General Mike Hilgers against a circulator who allegedly falsified signatures led him to believe "additional invalidities will be identified." Michael Egbert, a Grand Island man who began collecting signatures in February, allegedly forged names and addresses he found in a phone book on dozens of petition sheets, Hall County Attorney Martin Klein said last week.
The discrepancies were discovered by election officials during a routine review of the petitions. Evnen, who is represented by Hilgers in the case, defended the work of his office and that of county election officials charged with reviewing signatures submitted by petition circulators in his answer to Kuehn's lawsuit. During a press conference last week, Evnen said county election officials validated more than 600,000 signatures for six different initiatives and referenda that were submitted in July.
"The counties did a remarkable job of confirming the validity of the signatures found to be valid," Evnen said last week. But in a cross-claim filed with his answer to Kuehn's lawsuit, the secretary asked for the judge to consider the evidence and potentially rule the petitions circulated by Nebraskans for Medical Marijuana "legally insufficient." Evnen said that while he certified both petitions on Sept.
13, he acknowledged Hilgers' investigation was ongoing and "if more evidence of fraud, malfeasance, or substantial irregularities was uncovered, it could result in one or both of the petitions" being thrown out by the court. That investigation has continued, Evnen's court filing states, though it does not indicate how many more invalid signatures have been found. "Considered in tandem," with Kuehn's allegations of irregularities, Evnen said Hilgers' investigation gives rise "to significant uncertainty regarding the validity of some signatures" collected by Nebraskans for Medical Marijuana.
The request from Evnen for the court to potentially declare the petitions "legally insufficient" comes a week after the Nebraska Supreme Court said there was no mechanism for the secretary of state to remove petitions deemed "legally sufficient" from the ballot himself. Chief Justice Mike Heavican, responding to Evnen's assertion he would remove a referendum on state-funded private school scholarships from the ballot, said petitions found to be valid and sufficient must be placed on the ballot. "I am aware of no process by which the Secretary can change his mind and 'rescind his legal sufficiency determination,'" Heavican wrote in a concurrence.
In its own response to Kuehn's lawsuit, Nebraskans for Medical Marijuana said the lawsuit was intentionally filed late to limit its time to prepare an adequate defense. Attorney Daniel Gutman, who represents Nebraskans for Medical Marijuana, campaign manager Crista Eggers, and Sen. Anna Wishart and former Sen.
Adam Morfeld, both of Lincoln, said allowing the case to move to trial next week -- as requested by Kuehn -- would not allow the campaign to conduct discovery, consult with experts, or follow other court rules. Gutman said Nebraskans for Medical Marijuana had not yet received the petition pages in question that were provided to Kuehn by Evnen's office through a public records request. "An attempt to invalidate thousands of signatures of Nebraska voters should not be rushed.
..in a manner that precludes necessary discovery and prevents (Nebraskans for Medical Marijuana) from fairly presenting a defense of the initiatives," Gutman wrote.
On Friday, Strong set deadlines for all three parties -- Nebraskans for Medical Marijuana, the Nebraska Secretary of State, and Kuehn's legal team -- to submit briefs on the ballot campaign's motion to dismiss the case, as well as on Evnen's cross-claim. Strong said she plans to issue a ruling on the motion to dismiss by the end of next week. Should the case be allowed to continue, the sides disagreed on how quickly the matter would need to proceed.
Alexander Arkfeld, an attorney representing Nebraskans for Medical Marijuana alongside Gutman, said a legal challenge made against a 1992 ballot initiative was not resolved until 1994, when the Supreme Court invalidated it. But Anne Mackin, an attorney from Texas representing Kuehn, and Jennifer Huxoll, an assistant attorney general representing Evnen in the case, said they preferred the matter be resolved before Election Day. Mackin said both supporters and opponents of the ballot initiatives deserved to know the status of the measure before they cast their votes.
"I agree," Strong said. After the conclusion of the hearing, Nebraskans for Medical Marijuana said they "remain grateful for the outstanding work" done by county election officials to verify the signatures of hundreds of thousands of signers. "It is unfortunate that an extremely small minority of individuals have taken it upon themselves to attempt to silence the voice of the people," Eggers said in the statement.
"We remain on the November ballot, as certified by the Secretary of State." Reach the writer at 402-473-7120 or [email protected] .
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