Politics
Nebraska Medical Marijuana Activists Ask Court Not To Overturn Voters’ Approval Of Legalization Initiatives
“The four-day trial confirmed the accuracy and expertise of Nebraska’s county election officials, who validated the signatures in the first place.”
By Zach Wendling, Nebraska Examiner
The ballot sponsors behind Nebraska’s successful medical cannabis measures on Election Day have made a final plea to a district judge to uphold the petition efforts and election results.
Attorneys for the Nebraskans for Medical Marijuana campaign, which sponsored Initiative Measures 437 and 438 for the November 5 election, again urged Lancaster County District Judge Susan Strong to reject efforts to invalidate tens of thousands of signatures for alleged circulator “fraud” or notary “malfeasance,” based on what they said was a lack of evidence.
Nebraskans overwhelmingly approved both measures at the ballot box.
“If anything, the four-day trial confirmed the accuracy and expertise of Nebraska’s county election officials, who validated the signatures in the first place,” the attorneys wrote in a post-trial brief submitted Friday.
Investigators ‘assumed the worst’
John Kuehn, a former Republican state senator and former member of the State Board of Health, filed the lawsuit September 12 against the campaign sponsors and Nebraska Secretary of State Bob Evnen (R). Kuehn alleged that not enough valid signatures were collected for ballot access.
Evnen certified the measures for the ballot on September 13, based on the information at the time and after weeks of signature verification in all 93 counties by local officials.
Weeks later, Evnen joined Kuehn in challenging tens of thousands of signatures, alleging there was enough fraud and malfeasance to reduce the number of valid voter signatures below the minimum requirement of 86,499 this election cycle, set under the Nebraska Constitution.
The core of the legal challenges hinges on alleged circulator fraud and notary malfeasance that Kuehn’s attorneys and the Nebraska Attorney General’s Office, representing Evnen, argue should be extended to all related signatures that the notaries or circulators touched:
- 49,187 previously accepted signatures for Measure 437, to legalize the drug.
- 30,610 previously accepted signatures for Measure 438, to regulate the drug.
When the state’s “numbers guy”—John “Jake” Brennan—gave his deposition on October 22, he identified 706 instances of direct “malfeasance” on the legalization petition and 394 instances on the regulatory petitions, far short of the tens of thousands of possible invalidities previously claimed.
After talking with one of the state’s key witnesses, Jennifer Henning of Omaha, Brennan later challenged about another 1,000 on each petition that Henning had gathered.
The ballot sponsors’ attorneys wrote that those challenges “rely on inferences and assumptions,” and said Evnen and his attorneys, including Brennan, “assumed the worst” of every person involved in the case.
“If a notary forgot their notary stamp: Fraud. If a notary wrote down the wrong date: Malfeasance. If a notary crossed out their notary stamp in conformity with the Secretary of State’s own guidance: Malfeasance per se,” the ballot sponsors’ attorneys wrote.
The importance of the rules
The notary requirement is one created by law but not the Nebraska Constitution, the brief argues, and comes in a single section of law that requires “substantial” but not “perfect” compliance.
The attorneys add that it “defies common sense” that a constitutional right to initiative, which exists in about two dozen states, should be infringed upon by third-party notaries, some of whom might never interact with voters.
“There is not a single statute or case in Nebraska that supports the wholesale invalidation of otherwise valid signatures based on purported notarial errors,” the sponsors’ brief states.
Evnen and Kuehn summarized their cases last week in their own briefs, breaking down the case as a question of following the rules. The AG’s Office framed it as “Cheating is a choice.”
“Intentional wrongful conduct permeated the campaign from top to bottom,” the AG’s Office brief stated. “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.”
The Evnen and Kuehn briefs pointed to states, including Nebraska, that have tossed election measures or results because of general widespread wrongdoing or fraud.
However, the ballot sponsors wrote, no court has extended those arguments to notaries, rejecting specific claims in North Dakota, Pennsylvania, Illinois and Nebraska.
The sponsors’ attorneys said that if accepted, a “malfeasant” notarization on one petition could extend to challenging other legal documents involving the notaries, such as wills, mortgages, affidavits and purchase agreements.
If 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.
No matter the outcome, Strong and attorneys involved in the case have signaled the ruling would likely be appealed to the Nebraska Supreme Court.
Credibility of key witnesses
The sponsors’ post-trial brief criticized Evnen and the AG’s Office for accusing the campaign of a “militarized conspiracy” that relies upon and “dramatically misconstrues” texts.
One such text message was between Crista Eggers, a ballot sponsor and the campaign manager, and Jennifer Henning, a paid circulator who took the stand against the petitions. Eggers told Henning in the text, “There are no rules.” That phase was a critical piece of evidence from the AG’s Office.
In another text message from Eggers to Garrett Connely, a key volunteer and top notary for the campaign, she said, “There is no more nice campaign. We don’t follow the rules anymore. And we just pay the consequences and hope it’s OK.”
The sponsors’ attorneys said that the Henning text came in relation to collecting signatures at a concert venue and that no texts suggested volunteers should violate the law.
Henning and Michael Egbert, another paid petition circulator, were key witnesses for the state. Both testified that they committed fraud: Egbert testified that he used a phone book to add voters’ names and forge their signatures, while Henning said she picked up and signed off on petition pages in Seward County that she had not circulated and delivered them to Eggers to be notarized.
Egbert, who testified that he has memory problems, pleaded guilty to a Class I misdemeanor and $250 fine on November 8, down from a Class IV felony. He said that he acted alone and that law enforcement promised him his testimony would not be held against him.
The ballot sponsors’ attorneys directly criticized the Henning–Seward case, which relied upon her testimony and texts and assumptions that the pages were not circulated or notarized when Henning picked them up and that Eggers knew they were unsigned.
The brief added that another assumption would be to believe Henning’s allegation that Eggers instructed her to sign the petitions, which was allegedly said in a phone call. Henning also alleged that Eggers instructed volunteers at a meeting in Omaha to intentionally delete messages. No evidence was presented to corroborate those specific allegations.
Henning is currently on probation for two counts of felony insurance fraud and has been sanctioned by a Nebraska judge for a history of “perpetrating fraud and engaging in misconduct in court proceedings.” Henning has said those episodes occurred when she was not being medicated for her mental health concerns.
“Put generously, neither Egbert nor Henning are credible witnesses, and their testimony should not be used to invalidate the voices and votes of hundreds of thousands of Nebraskans across the state,” the ballot sponsors’ attorneys wrote.
‘A sword and a shield’
Multiple witnesses in the case, including Eggers and Connely, invoked their Fifth Amendment right against self-incrimination on the stand, noting that a dual criminal investigation from the AG’s Office continues.
Kuehn and Evnen have asked Strong to make an “adverse inference” against any witness who invoked the Fifth Amendment.
Criminal charges against Nebraska notaries for “official misconduct” to this degree are rare, if not unprecedented, the sponsors’ attorneys argued, which created some fear about potential allegations that are “serious—even life changing—particularly coming from the State’s highest election official.”
The ballot sponsors’ attorneys said the AG’s Office was on both sides of the criminal and civil investigations, impacting who could and couldn’t invoke the privilege, as evidenced by Egbert, who said he was promised his testimony would not be used against him, and Henning, who has not been charged and must cooperate with law enforcement as part of her probation.
“The government cannot use its dual representation as a sword and a shield,” the attorneys wrote.
The brief states that the adverse inferences would be “fundamentally unfair” as Kuehn and Evnen repeatedly rejected attempts to slow down the trial but are now using the compressed timeline to boost their case.
The ballot sponsors concluded that “despite the expended resources” and critical state officials who “left no stone unturned in the effort to invalidate a policy with which they personally disagree,” Evnen and Kuehn “have come up short.”
“Instead,” the sponsors’ attorneys wrote,” their investigation confirmed what has been true all along: The constitutional minimum of signatures was met, and Secretary Evnen properly certified the measures for the ballot before he changed his mind.”
Nebraska’s state constitutional officers are scheduled to meet Dec. 2 to certify the election. Legal arguments can continue after that date.
That Board of State Canvassers consists of Evnen, Attorney General Mike Hilgers, State Auditor Mike Foley, State Treasurer Tom Briese and Gov. Jim Pillen (R). Foley and Pillen have criticized the medical marijuana petition campaign. Briese and Hilgers voted against the most recent legislation while serving in the Legislature.
This story was first published by Nebraska Examiner.
Photo elements courtesy of rawpixel and Philip Steffan.
