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Medical cannabis lawsuit in Nebraska may not be resolved by Election Day, judge says • Nebraska Examiner

Medical cannabis lawsuit in Nebraska may not be resolved by Election Day, judge says • Nebraska Examiner

LINCOLN — A Lancaster County District Court judge said Friday that ongoing legal challenges to Nebraska’s two medical cannabis ballot measures may not be resolved by Election Day.

Judge Susan Strong suggested during a virtual hearing Friday that the trial, scheduled to begin Oct. 29, be split into two parts. The proposal includes attorneys for Secretary of State Bob Evnen and John Kuehn, a former state senator and former member of the State Board of Health has initiated the lawsuitwould first have to prove that there are enough questionable signatures.

The challenges would have to prove that a sufficient number of signatures are invalid due to allegations of technical or clerical errors, circulation fraud or misconduct. If a sufficient number of signatures were successfully challenged, ballot sponsors would have the opportunity to provide evidence that some signatures were actually collected and should not be thrown away.

“If it is the latter situation and we need to move forward with phase two, we are talking about going beyond the election date,” Strong said Friday. “I don’t know at this point whether we can still help, because the schedule is already extremely tight.”

The challenged signatures

Evnen confirmed nearly 90,000 valid signatures for each petition when he certified the ballot on September 13th. The minimum threshold is 86,499 signatures for each petition legalize And regulate the medical drug.

John Kuehn of Heartwell, left, looks toward his Austin-based attorney Anne Marie Mackin at the start of an official trial in Lancaster County Circuit Court that could decide the fate of two medical cannabis ballot measures in 2024. September 20, 2024. (Zach Wendling/Nebraska Examiner)

On Sept. 12, Kuehn filed his lawsuit, challenging about 17,000 signatures on each petition in his most recent public filings.

Strongly allowed Kuehn’s case continues to determine what constitutes a “writing or technical error” and what may result in a petition’s signature being removed.

Evnen is demanding around 49,000 signatures for each petition because of alleged circulation fraud and abuse of office. Strong said Friday she would let Evnen’s challenge, brought as part of Kuehn’s lawsuit, move forward “as a practical matter” because the issues raised would be resolved one way or the other.

“Signatures may continue to be counted if defendants can demonstrate the authenticity of those signatures,” Strong instructed the court.

Time of a court decision

Sydney Hayes and Daniel Gutman, attorneys for the election sponsors, expressed some concern about the proposed timeline for the case, particularly given the proximity of the Nov. 5 election.

“Particularly if part of it were to take place before the election and essentially create the appearance that the initiative could be invalidated, while in the second process it may not be invalidated, leading to voter confusion and ultimately “The outcome of the election would affect the voting efforts,” Hayes said.

Attorney Daniel Gutman is one of three attorneys representing state senators Anna Wishart, Crista Eggers and former state senator Adam Morfeld in a lawsuit challenging a ballot measure sponsored by the three to legalize and regulate medical cannabis in Nebraska. September 20, 2024. (Zach Wendling/Nebraska Examiner)

Assistant Attorney General Jennifer Huxoll said the proposal appeared to be “an effective path forward.” She said the large number of signatures Evnen was challenging did not mean he was trying to “bury” the sponsors when reviewing that evidence. She said it was about election integrity.

The Attorney General’s Office would like to bring in a handwriting expert to investigate. Huxoll said if the court rules in favor of the plaintiffs, it presents “a serious election issue.”

“This is not about playfulness, your honor,” Huxoll said. “It’s really just an attempt to get to the bottom of this as quickly as possible and as succinctly as possible.”

Anne Marie Mackin, an attorney for Kuehn, said Strong’s proposal appears to be consistent with previous case law regarding the steps required in a signature challenge case.

Gutman called Evnen’s challenge “a broader effort to undermine that.” Initiative process.”

“We don’t say that lightly,” Gutman told Strong. “We know that is a bold statement, but it is warranted here because he is taking a position in this case that has never been taken by a single court in Nebraska and, to our knowledge, never by a single court in Nebraska, the whole country.”

Jennifer Huxoll, chief of the Civil Litigation Office of the Nebraska Attorney General’s Office. August 2, 2024. (Zach Wendling/Nebraska Examiner)

Huxoll responded: “Fraud and misconduct in signature collection is essentially not a formality, and Nebraskans deserve to know whether it happened here.”

Assistant Attorney General Zach Viglianco said Evnen’s case does not involve “mere technical errors” or “simple sloppiness or errors” but rather “willful” violations of state rules and laws.

Evnen and Hilgers have named a total of eight notaries and four petition distributors whom they accuse of fraud or abuse of office, including two who have been criminally charged. Two dozen other people are named in the lawsuit. No new criminal charges were filed.

“More of a fair shake”

Strong said she would “probably” order the parties to follow her revised schedule, which she described as “really more for the benefit of the defendants than any other.”

“I don’t know how you can focus on responding to the plaintiff and the Secretary of State while also proving the authenticity of the signatures,” Strong said. “I mean, it sounds like an overwhelming task, and so I thought it only makes sense to look at whether we have enough fraud, actual provable, intentional fraud in such numbers that these petitions are legally insufficient , and that may not be the case.” .”

Strong said she wants to work with everyone involved in the case and make sure they have a chance to be heard.

“The initiative is on the ballot, so you have that assurance,” Strong said. “My duty will be to follow case law and statutes and determine whether these petitions are legally insufficient or sufficient. In my opinion, this is the best way to give everyone a fairer chance.”

The trial is scheduled to begin on October 29th and could continue on October 31st and November 1st if necessary. The election will take place on November 5th. Early voting has already begun.

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