Nebraska Supreme Court Hears Case Seeking To Overturn Medical Marijuana Law Approved By Voters

*“They cannot undo the will of the voters. Every lawsuit, every delay,
every political maneuver is confirmation that we are winning.”*

*By Zach Wendling, Nebraska Examiner*

The Nebraska Supreme Court appeared skeptical Wednesday about a case
alleging fraud in and seeking invalidation of last year’s medical cannabis
petition campaign, which voters widely supported.

Former State Sen. John Kuehn (R) of Heartwell, a longtime opponent of
medical marijuana, continues to allege widespread “fraud” in the 2024
medical cannabis petitions.

His lawsuit argues a district judge incorrectly ruled last November that
the measures had enough signatures to reach the ballot despite allegations
from Kuehn and two top state officials, largely based on questions about
notaries.

Kuehn sued Secretary of State Bob Evnen (R) and the ballot sponsors, but
Evnen and Attorney General Mike Hilgers (R) largely joined forces with
Kuehn. Together, they argued that at least enough signatures would lose a
“presumption of validity” to force the trial into a second phase involving
greater scrutiny of signatures.

“Notaries are, in effect, walking stamps of approval,” Zach Pohlman, state
deputy solicitor general, said Wednesday. “They are professional truth
tellers. And so when they lie, that presumption of truth…gets pierced, and
they become just like every other witness.”

If the justices reverse, the 2024 medical cannabis ballot sponsors might
need to rehabilitate enough signatures to show at least 86,499 valid
signatures on two petitions apiece for the voter-approved laws to stand, or
172,998.

The campaign had 6,822 more signatures validated than it needed.

No other court in the country has adopted such a legal argument that would
extend or “impute” one instance of notarial fraud to other documents that
person had notarized, Daniel Gutman, attorney for the ballot sponsors, has
repeatedly said.

*Timing of election case*

Some justices probed how a ruling would fit more than a year after the 2024
election.

“What impact does it have that the signatures have already been verified?”
asked Justice Stephanie Stacy, referring to county-level verification in
summer 2024, before the ballot was certified.

“We know how the election turned out. What effect does that have?” asked
Justice William Cassel.

Pohlman and former State Sen. Andrew La Grone of Dunbar, for Kuehn, said
the Supreme Court could still legally invalidate the petitions. La Grone
noted local election officials are not handwriting experts and can’t catch
everything.

“When there are bad acts related to the affidavit…the value of the
verification is destroyed, and the petition must fall unless the
genuineness of the signature is permanently shown,” La Grone said.

Pohlman said the state’s highest court has invalidated a notary’s actions
before, citing a 1944 case about a mail-in ballot. He said some other
documents have also been invalidated.

“Of that document. But other documents notarized by the notary, have we
invalidated those types of situations?” asked Chief Justice Jeffrey Funke.

“Not in Nebraska, your honor,” Pohlman responded.

*A new legal theory*

Justice Jonathan Papik pressed whether the arguments from Pohlman and La
Grone have ever been used in other states. Pohlman pointed to Oklahoma,
where he said that because a notary failed to post a notary bond, 7,000
signatures the person had notarized were tossed.

Attorney Daniel Gutman, for the ballot sponsors, pointed to a case from
North Dakota where the state supreme court declined a “wholesale rejection”
of signatures and chose not to “impute” one bad act to other notarizations.

La Grone and Pohlman said the cases are different, in part because they’re
not seeking “wholesale” invalidation, just a second trial phase. Gutman
said the result is the same.

“The remedy the appellants seek in this case—which is the mass invalidation
of petition signatures—is inconsistent with the high value this court
places on the initiative right,” Gutman said. “It is inconsistent with the
Election Act, which facilitates, not undermines, the initiative process.
And it is inconsistent with common sense.”

State attorneys had previously asked the trial judge to toss the petitions
without a second phase last year, a position that appears to have narrowed.

*Circulators and notaries*

Wednesday’s arguments largely revolve around a 1919 Nebraska Supreme Court
case—Barkley v. Pool—in which the court said a circulator’s fraudulent
behavior could be extended to other actions. In that case, three men
against women’s suffrage forged signatures in a petition campaign seeking
to force a vote to overturn a 1917 law giving women some voting rights.

One circulator for the medical cannabis petitions from Grand Island pleaded
guilty last year to forging signatures, including by using a phone book.
Campaign officials maintain he worked alone and agree any signatures he
gathered should not be counted.

Lancaster County District Judge Susan Strong ruled last year that there
were some signatures she said lost a “presumption of validity” and would
need to be rehabilitated, identifying 711 signatures on the legalization
petition and 826 on the regulatory petition.

However, Strong ruled that the challenges still fell “well short” of
affecting access to the ballot.

Pohlman said Strong should have extended the wrongdoing she found to all
other signatures the people touched, potentially tens of thousands of
signatures. He said county-level verification is “some evidence on the
front end” but that circulator oaths are critical.

Justice Jason Bergevin asked La Grone whether there was any evidence that
electors who purportedly signed the petitions, outside of the Grand Island
case, didn’t actually sign. La Grone said that’s a “very open question,”
one which Kuehn wants to get to in the second trial phase.

Funke asked La Grone whether he was asking the court to transition Barkley
to notaries. La Grone said the “focal point” is a circulator’s “oath,” one
which requires a notary.

“We think it is merely an application of the rule to the notary context,”
La Grone said.

Funke also asked whether, under Barkley, a trial judge must extend
fraudulent acts to all other actions, or whether there is judicial
discretion. La Grone told Funke it is “slightly unclear.” Strong ruled
that, either way, the ballot sponsors would survive the Evnen-Kuehn
challenge.

*Future of petition law*

Gutman said the medical cannabis and women’s suffrage cases are different,
and he asked the high court to consider whether the century-old case law is
still good. He pointed to technological advancements and county officials
now being part of the signature verification process.

For example, only the secretary of state verified signatures in 1919,
Gutman said, so Barkley relied on a circulator’s oath more as “the only
evidence of the genuineness of the signature.”

“Every expansion of the scope of wrongdoing that may be imputed increases
the risk of unjustly depriving an honest [signer] of the right to have his
or her signature counted,” a legal brief from the ballot sponsors reads.

The AG’s Office has sought to frame the case as protecting the integrity of
the ballot measure process. Pohlman said Wednesday that if the “proven
fraud” in this case didn’t require a second phase of trial, “then the
public’s confidence and the precious power of initiative may be shaken.”

Many medical cannabis supporters and campaign attorneys have said the
opposite, arguing that continued attacks from top officials against the
medical cannabis petitions and laws are more harmful. Gutman has said
ballot litigation is also made “extremely difficult” when the secretary of
state certifies an initiative but “tries to pull the plug at the last
minute.”

*A case about ‘numbers’*

Gutman said the Kuehn-Evnen case is about “numbers,” specifically at least
3,464 signatures on the campaign’s petition to legalize up to 5 ounces of
medical cannabis with a physician’s recommendation and at least 3,358
signatures on a petition to set a framework for regulating the new medicine.

The legalization law received 71 percent support statewide, including a
majority in all 49 legislative districts. The regulatory law received 67
percent support, including a majority in all but three legislative
districts.

Gutman said that if the one bad notary act invalidates all others, those
arguments could mean wills, real estate documents and more are
“presumptively invalid right now.” Some targeted notaries have helped other
petition drives in the state. La Grone said he was not asking to extend
notarial wrongdoing on petitions to unrelated documents.

Of the notaries named in the Kuehn-Evnen challenges, just one—Jacy Todd of
York—faces a criminal case in Grand Island. He is believed to be the first
notary to face charges, with a trial set to begin December 15. He is also
running a 2026 GOP campaign for governor.

According to the Secretary of State’s Office, no notaries have had their
notary commissions administratively canceled in 2025. According to a
state-run database of notaries, all named notaries retain active notary
licenses except Todd, whose commission expired July 29.

*What would a second phase look like?*

Funke asked what a second phase would look like, to which Gutman said he
doesn’t imagine doing anything more than local election officials.

“If we go back to a second trial, there’s nobody we can hire, nothing we
can do, nothing I can say, that is better than what the election officials
have already done to verify the signatures,” Gutman said.

Pohlman said a second phase would mean sponsors have to prove “by a
preponderance” that they have enough signatures. He said the Supreme Court
would need to require the trial move forward “as quickly as possible” and
could prohibit circulator affidavits from being repaired by “self-serving
testimony.”

“So does that mean they’d call 86,000 signatories to testify that the
petition was read to them, they understood what they were signing and they
actually signed it?” Funke asked.

“And do that quickly?” Papik added.

Pohlman said he doesn’t think the sponsors would need to call that many
people, just circulators, notaries and enough voters to clear the
threshold, if possible. Some of the notaries targeted in the case also
served as circulators.

The 2024 campaign marked the third attempt for Nebraskans for Medical
Marijuana to reach a statewide vote. In 2020, a divided Supreme Court, 5-2,
said the first attempt was too broad. Papik wrote the dissent and would
have let voters weigh in. In 2022, the campaign did not garner enough
signatures.

Some campaign volunteers have privately worried about issue fatigue for
voters or campaign workers. Some have also expressed concern about whether
some circulators, notaries or voters would come forward as the state
continues to pursue civil, criminal and political penalties against some
medical cannabis supporters.

In a Wednesday statement, Nebraskans for Medical Marijuana, which ran the
2024 campaign, said: “They cannot undo the will of the voters. Every
lawsuit, every delay, every political maneuver is confirmation that we are
winning.”

The Supreme Court will issue a ruling in the coming months on the case.

*This story was first published by Nebraska Examiner.*

*Photo elements courtesy of rawpixel and Philip Steffan.*

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