Nebraska Judge Upholds Voter-Approved Medical Marijuana Ballot Measures

Nebraska is officially the 39th state to legalize medical cannabis following a Nov. 26 court ruling—well, as long as no appeals are made. 

Lancaster County District Court Judge Susan Strong dismissed prohibitionist John Kuehn’s legal challenge to a pair of complementary legalization initiatives that Nebraska voters passed with decisive supermajorities during the Nov. 5 election.

The statutory measures to legalize medical cannabis and provide for a regulated commercial marketplace attracted 71% and 67% support at the polls, respectively.

“We are grateful that the vote of the people will be upheld, and Nebraska patients will soon have access to safe and regulated medical cannabis treatment,” Nebraskans for Medical Marijuana (NMM) Campaign Manager Crista Eggers said in a public statement.

Eggers co-led the NMM legalization committee with Democratic state Sen. Anna Wishart and former Democratic state Sen. Adam Morfeld. 

“We have long been committed to seeing this day through, and we are pleased with Judge Strong’s decision,” Eggers said. “Many years of hard work have gone into this effort—from volunteers, patients and families across the state. Knowing that another mother will soon have an option for her suffering child makes it all worthwhile.”

Eggers’ son, Colton, battles severe epileptic seizures.

While Nebraska voters left little doubt on Election Day regarding their stance on medical cannabis legalization, Kuehn’s legal challenge in Lancaster County left the election results in peril until now.

RELATED: Nebraska Voters Pass Medical Cannabis Legalization Measures; Litigation Remains Ongoing

A former Republican state senator, Kuehn filed the lawsuit on Sept. 12, the day before Nebraska Secretary of State Bob Evnen certified NMM’s collected signatures for the ballot measures. Kuehn argued that numerous signatures were “invalid and were unlawfully accepted,” claiming certain signers were not registered voters, duplicated their signatures, or did not provide proper information, among other claims.

Although Strong found that 711 signatures for the legalization measure and 826 signatures for the regulatory measure lost their presumption of validity, that wasn’t enough to fall below the state’s threshold of 7% of registered voters to appear on the ballot. The Nebraska Examiner first reported on the judge’s decision.

“It is now clear that the plaintiff and secretary have fallen short in this lawsuit,” Strong wrote in Tuesday’s order. “They needed to disqualify at least 3,464 signatures on the legalization petition. They have stripped the presumptive validity of only 711 signatures. They needed to disqualify at least 3,358 signatures on the regulatory petition. They have stripped the presumptive validity of only 826 signatures.”

Overall, each petition needed 86,499 valid signatures to appear on the ballot. After Strong’s ruling, the legalization petition still had 89,251 valid signatures and the regulatory petition still had 89,030 valid signatures.

“Perhaps recognizing that he does not have the numbers, [Evnen] has raised a new claim,” Strong wrote. “Now, he argues that both initiatives should be thrown out whether or not they have enough genuine signatures because they are tainted by ‘[w]idespread, coordinated fraud.’”

Specifically, the Nebraska secretary of state argued that he and Kuehn don’t necessarily have to show that the petitions have fewer valid signatures than state law requires; rather, they can show that the entire process was infected to some degree of wrongdoing. In making this argument, Evnen relied “heavily” on an Oklahoma Supreme Court ruling from 2006, according to Strong.

The judge rejected the alternative claim for three reasons:

1. The secretary of state did not plead this claim in his amended cross-claim;
2. The court does not believe that the Nebraska Constitution allows courts to declare that initiatives are invalid whether or not they have enough genuine signatures; and
3. Even if the court considered the secretary’s claim on the merits, it would find that the evidence is insufficient to invalidate the petitions.

“This case was about numbers,” Strong wrote. “The plaintiff and secretary are well short.”

Furthermore, the judge indicated that even if all the signatures identified in a pair of exhibits for the case lost their presumption of validity, Kuehn and Evnen would still fall short of showing that cannabis legalization advocates failed to collect the needed signatures to place their petitions on the ballot.

“The petitions fulfill all constitutional and statutory requirements and are thus legally sufficient under Nebraska law,” Strong wrote.

She further ordered that Kuehn’s complaint and petition for expedited declaratory and injunctive relief be dismissed along with the secretary of state’s cross-claim. 

A spokesperson for Nebraska Attorney General Mike Hilgers told The Associated Press that the office’s lawyers were reviewing the ruling and considering whether to file an appeal.