The Nebraska Supreme Court’s recent decision marks a significant milestone in the ongoing legal battles surrounding the state’s medical marijuana initiatives. By unanimously upholding the dismissal of a lawsuit that questioned the integrity of the petition process, the court has effectively reaffirmed the voters’ choice in favor of legalization.
Former State Senator John Kuehn, a vocal critic of marijuana legalization, initiated the legal challenges. The Nebraska Supreme Court’s 47-page opinion concluded that Kuehn and Secretary of State Bob Evnen had not substantiated their claims of “widespread, pervasive” fraud in signature gathering and notarization. Chief Justice Jeffrey Funke noted, “The number of signatures affected by these alleged instances of improper notarization were relatively small.” Even with the exclusion of disputed signatures, the petitions still met the required threshold.
The journey to legalize medical marijuana in Nebraska has been fraught with challenges. In 2020, a ballot initiative was thrown out by the state’s Supreme Court for addressing multiple subjects. By 2024, supporters had successfully submitted signatures for two separate initiatives, both of which received strong voter support. However, the process was shadowed by fraud allegations before reaching the polls.
Kuehn’s initial lawsuit aimed to remove the initiatives from the ballot, citing alleged signature fraud among other reasons. Despite certifying the initiatives, Evnen later sought their invalidation through a cross-claim. Lancaster County District Judge Susan Strong divided the trial into two stages, with the first focusing on proving fraudulent signatures. Judge Strong found that the evidence was insufficient to undermine the petitions’ validity.
The Nebraska Supreme Court concurred with the district court’s findings, asserting that the improper notarization of some petition pages did not invalidate all signatures notarized by the same individuals. The court also addressed the argument by Kuehn and Evnen regarding the Fifth Amendment invocations by some petition circulators and notaries, affirming Judge Strong’s discretion in not drawing adverse inferences.
Nebraska Attorney General Mike Hilgers expressed dissatisfaction with the ruling, labeling it “a sad day for election integrity in Nebraska.” He stated, “The medical marijuana petition effort used fraud to get on the ballot and abused the notary process and the laws of the state.” Despite disagreeing with the court’s decision, Hilgers confirmed compliance with the current legal standing.
Conversely, the Nebraskans for Medical Marijuana campaign celebrated the ruling as a triumph for democracy and the people of Nebraska. Crista Eggers, the campaign director, emphasized that the case was about resisting attempts by a few officials to undermine public will. “It was about whether a handful of elected officials could use the courts to override the will of the people,” she stated. “Today, our state’s highest court stated the obvious: They cannot.”
In a concurring opinion, Justice William Cassel, joined by Justice John Freudenberg, acknowledged the lower court’s correct decision but cautioned that notary misconduct could warrant different outcomes in other scenarios. Justice Stephanie Stacy separately called for a comprehensive review of when pre-election challenges to initiative petitions’ legal sufficiency can be raised and who holds the standing to bring such actions.
