Nebraska's high court hears arguments in case seeking to invalidate medical marijuana signatures

The legal battle over the validity of tens of thousands of signatures on medical marijuana ballot initiative petitions reached the Nebraska Supreme Court on Wednesday.

Wednesday’s hearing was the latest development in a series of legal challenges against Nebraska’s newly enacted medical marijuana law. Nebraska voters overwhelmingly voted in favor of two ballot initiatives to legalize and regulate medical marijuana in 2024.

John Kuehn, a former state senator and medical marijuana opponent, brought the initial lawsuit seeking to have the medical marijuana ballot question removed from the ballot prior to the November 2024 election. Kuehn contended that there was widespread fraud and malfeasance on the part of notaries and petition gatherers involved in the Nebraskans for Medical Marijuana campaign.

Even though Secretary of State Bob Evnen certified the ballot initiatives in September 2024, Evnen later filed a cross-claim in Kuehn’s lawsuit seeking for the initiative to be removed from the ballot if a sufficient number of signatures were found to be invalid.

Part one of a two-phase trial was held in Lancaster County in October and November of 2024. That phase of the trial required Kuehn and Evnen to prove that enough signatures were invalid to make the total number of signatures fall below the threshold for ballot access. If that was proven, the trial would have progressed to phase two, and the defendants would have been able to present evidence to support the validity of signatures.

Lancaster County District Court Judge Susan Strong found that a total of 711 signatures were invalid, but that fell short of the number required to invalidate the petition. The case was dismissed after the first phase of trial.

Attorneys for Kuehn and Evnen appealed the dismissal and said the case should be remanded to the lower court for phase two of trial. Though their arguments differ somewhat, both Kuehn and Evnen contend that tens of thousands of signatures are invalid.

“The relief we are seeking is modest,” Zachary Pohlman, an attorney representing Evnen, said on Wednesday. “We are not asking this court to toss the petitions in their entirety. All we're asking is that this court reverse and remand for a second phase of trial, where the sponsors will have a chance to prove that they gathered enough valid signatures.”

Justices pressed Puhlman on what a second phase of trial would look like.

“Does that mean they call 86,000 signatories in to testify that the petition was read to them, they understood what they were signing, and they actually signed it?” Chief Justice Jeffrey Funke asked.

“And do that quickly?” Justice Jonathan Papik added.

Pohlman said it wouldn’t be necessary to call all signatories to testify at trial. Instead, he said, it would “probably be sufficient to call some combination of circulators, notaries and individual signers.”

Attorney Daniel Gutman implored the court to find that Evnen did not have standing to bring the cross-claim in the first place. Strong also expressed skepticism about Evnen’s standing in her decision, but she never fully addressed the issue.

Some members of the Nebraska Supreme Court previously expressed skepticism about Evnen’s ability to change his mind about the validity of a ballot initiative after he already certified it. A similar issue unfolded around a school funding referendum initiative in 2024, in which Evnen certified the initiative before asking the court to remove it from the ballot.

“We’re in this rare circumstance where we have time,” Gutman said. “This is not a decision that needs to be written in two days, which this court is used to. We ask as a practical matter – for the benefit of the parties, for the benefit of the lawyers, and most importantly, for the benefit of the public – can Secretary Evnen certify an initiative, pull the plug at the last minute, admit he has no standing under the exclusive statutory provision, and then circumvent that through the declaratory judgement act?”

An attorney for Evnen told the court that it did not need to address the standing question.

There is no set timeline for the court to issue a decision. The case was taken under advisement.

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