Former Nebraska Senator Files Lawsuit Challenging State’s Medical Cannabis Ballot Initiatives

Editor's note: After this article was published, Nebraska Attorney General Mike Hilgers' announced a felony charge against a signature collector related to an investigation of the state's medical cannabis legalization petitions in Hall County. That story is here. Also after this article was published, Nebraska Secretary of State Bob Evnen certified both medical cannabis petitions for the Nov. 5, 2024, ballot. 

A former Nebraska lawmaker filed a lawsuit Sept. 12 in an attempt to stop Nebraska Secretary of State Bob Evnen from certifying a pair of petitions to legalize medical cannabis in this November’s election.

Although Evnen announced Aug. 30 that the statutory measures met the signature requirements to qualify for the general election ballot, he had yet to officially certify the petitions at the time the lawsuit was filed, as local officials worked to complete the signature verification process.

While both petitions had exceeded 89,000 valid signatures at the time of Evnen’s announcement—2,000 more than the threshold required to appear on the ballot—Evnen explained that state law requires county election officials to continue verifying the remaining signatures unless the petitions meet 110% of the signature requirement, which would be roughly 96,000 valid signatures.

“We will have petitions verified before the September 13 deadline to certify the November ballot,” Evnen said in an Aug. 30 press release.

Now, nearly two weeks later, former state Sen. John Kuehn, who represented Nebraska’s 38th District from 2015 to 2019, is challenging the validated signatures in a lawsuit filed in the Lancaster County District Court, the Nebraska Examiner reported.

The lawsuit lists Evnen and Nebraskans for Medical Marijuana (NMM) sponsors Anna Wishart, Crista Eggers and Adam Morfeld as defendants. NMM is sponsoring the petitions, the first of which aims to establish a doctor-patient system for medical cannabis that will protect patients from criminal arrests and prosecution for possessing up to 5 ounces of cannabis. The second petition intends to create the framework for a regulated industry with licensed businesses.

However, Kuehn’s legal team claims in the lawsuit that “numerous signatures … are invalid and were unlawfully accepted by the secretary.” The lawsuit claims certain signatures that were validated for the petitions should not have been validated for the following reasons:

• The signer is not a registered voter;
• The signer signed the petition more than once;
• The petition was ostensibly circulated after the petition was due;
• The date of birth on the petition does not match the purported signer’s voter registration file;
• The signer did not provide any address;
• The voter’s signature pre-dates the petition period; and
• There was fraud involved in collecting the signatures, including notary fraud.
  

“Plaintiff has good reason to believe that, after excluding all of the invalid signatures as required by law, there will not be enough valid signatures on the signature pages of the petitions to satisfy the minimum signature threshold,” the lawsuit states, “and that the secretary’s decision to certify the initiatives for placement on the November 5, 2024, general election ballot is in violation of the law and his duties because the petitions are legally insufficient.”

In addition to serving in the Nebraska Legislature, Kuehn also serves as the co-chair for the Nebraska chapter of prohibitionist group Smart Approaches to Marijuana (SAM), according to The Associated Press. He also served on the Nebraska Board of Health, a position former Gov. Pete Ricketts—also a prohibitionist who now serves in the U.S. Senate—appointed him to.

After the lawsuit was filed on Thursday, NMM released the following statement on social media:

“Secretary Evnen declared that both NMM initiatives collected enough valid signatures to be certified. We are confident NMM satisfied all legal requirements and gathered the required signatures to qualify for placement on the November ballot.”

Petitions seeking to enact new laws require enough valid signatures from at least 5% of registered voters in 38 of Nebraska’s 93 counties and at least 7% of registered voters statewide. Evnen announced Aug. 30 that the legalization campaign had met the 5% distribution requirement in at least 51 counties for both petitions.

According to the lawsuit, Kuehn, through his counsel Andrew La Grone, filed a public records request Sept. 3 to obtain a copy of the signature pages of the petitions. Evnen partially granted Kuehn’s request on Sept. 4, allowing for the former lawmaker to inspect signature pages for Douglas, Sarpy and Lancaster—the three most populated counties in the state—according to the lawsuit.

Evnen indicated that the petition pages for the other counties would not be available for inspection until Sept. 11, two days before the secretary planned on certifying the petitions, according to the lawsuit. Kuehn had yet to receive signature pages from eight counties when the lawsuit was filed Sept. 12, according to the lawsuit.

“As of this filing, due to the secretary’s conduct, plaintiff does not know all of the facts about the signature pages of the petitions but has strong reason to believe there is a valid legal sufficiency challenge thereto,” Kuehn’s counsel wrote in the lawsuit.  “Secretary had a duty to ensure that a diligent challenger has a meaningful opportunity to exercise their right to seek review and appeal under [state law] before the secretary certifies the contents of the ballot.”

In addition to challenging Kuehn’s right to challenge Evnen’s certification decision, the lawsuit claims the petitions violated state law for the failure to file legally sufficient sponsor statements that contained the names and street addresses of every person sponsoring the petition. The petitions violated this standard because they did not include the city, state or ZIP code for Wishart, a state senator serving Nebraska’s 27th District, according to the lawsuit.

Finally, the lawsuit claims the petitions violate Nebraska’s single-subject rule and the supremacy clause of the U.S. Constitution, given that cannabis remains federally illegal as a Schedule I substance under the Controlled Substance Act.

NMM specifically filed two petitions this campaign to meet the state’s single-subject standard after the Nebraska Supreme Court struck down the group’s 2020 petition after it had already been certified for the ballot because its justices ruled that the initiative dealt with two subjects: legalization and setting up a system to cultivate, sell and distribute products.

In asking for judicial relief for the 2024 petitions, Kuehn requested the court act as quickly as possible since local authorities will begin sending out ballots as early as Sept. 20; to issue an injunction instructing Evnen not to certify the initiatives for the ballot or, if too late, not to certify the election results of the initiatives; and to rule that the initiatives are legally insufficient and invalid.

When Evnen certified the petitions on Sept. 13 for November ballot, he said, "Both cannabis petitions will appear on the ballot, but a court could order later that the initiatives be thrown out.”