Judge Considers Challenging Medical Marijuana Petitions

Nebraskans will find out whether initiatives to legalize and regulate medical marijuana have passed in the state on Tuesday evening after votes are counted.

However, the ultimate fate of the medical marijuana legalization initiatives will be decided at a later date by a Lancaster County District Court judge following a legal challenge from former Senator and Secretary of State Bob Evnen.

Judge Susan Strong took the case up for consideration Monday afternoon after closing arguments, hours after election workers began recording early ballots ahead of Tuesday's general election.

The judge previously declined to issue an order that would prevent the votes from being counted.

Strong will accept briefs from the parties in the case in mid-November and said she plans to make a decision before the election is certified on Dec. 2.

She added that she expects the case to be appealed to the Nebraska Supreme Court and hopes to set up a briefing schedule that will give the justices “ample time for meaningful consideration before that date.”

On Monday, attorneys representing Evnen questioned Crista Eggers, the Nebraskans for Medical Marijuana campaign manager, about her role in the campaign and what they said was widespread misconduct.

For nearly three hours, Deputy Attorney General Justin Hall peppered Eggers with questions about text message conversations she had with others involved in the campaign and her work as a notary for the medical marijuana petitions.

In an exchange shown in court, Eggers instructed an intermediary to stop filling in blank spaces on the petitions, telling him, “If they notice that, they can throw all that (intermediary signatures) away if they can prove it.”

“Even if you add just a little zip code, it messes up,” Eggers added in the text message exchange. “We can’t add anything more to people. We assume they are scanning and analyzing them all.”

Hall also questioned whether Eggers notarized petitions outside the presence of a circulator or directed others to do the same.

But like other campaign staffers who have not been criminally charged, Eggers, through her personal attorney Renee Mathias, invoked her Fifth Amendment right against self-incrimination on almost every issue.

Following Eggers' testimony, Steven Guenzel, an attorney representing former Sen. John Kuehn, who sued Evnen to prevent the petitions from being certified or counted, said in the closing statement that Medical Marijuana Nebraskans engaged in “extensive notarial misconduct.” had been.

Led by “very zealous people who cared deeply about their cause,” Guenzel told Strong, “That zeal gave way to the end of justifying the means.”

Guenzel said a third-party contractor hired by Kuehn demonstrated the enormity of the effort to qualify the initiative by any means necessary.

Signafide, an Arizona-based firm led by a member of former President Donald Trump's legal team, concluded that more than 30,000 signatures may have been tainted by fraud or misconduct, Guenzel said.

The number of potential signatures identified by Arizona attorney Kory Langhofer should be removed from the initiative related to the attorney general's investigation, he added.

Zach Viglianco of the Nebraska Attorney General's Office echoed Guenzel, saying that Nebraskans for medical marijuana were operating with a “win at all costs” mentality in their 2024 campaign after failing twice before.

In an extensive review of the evidence, Viglianco said the state found numerous instances of petition pages that were signed outside the presence of a notary, notarized by the circulators themselves or left blank.

Two witnesses — former circulators Michael Egbert and Jennifer Henning — testified that they engaged in these activities on behalf of Eggers and other campaign officials, he said.

All of these efforts were part of what Viglianco called a “there are no rules” ethos, which Eggers expressed in a text message to Henning.

While the text message in question urged Henning to continue collecting signatures at an Omaha concert hall and deal with the consequences later, prosecutors insisted it showed Eggers' drive to succeed no matter what.

“They didn’t follow the rules because they didn’t care about the rules,” Viglianco said. “They were told there were no rules and they could just ignore them and hope for the best.”

But Daniel Gutman, a lawyer representing the election sponsors, said no evidence was presented at trial to show that thousands of names were fraudulently signed.

Instead, Gutman argued that the state was using Egbert, the Grand Island man accused of forging dozens of signatures on petition sites, “as a means to achieve a political goal” to prevent Nebraskans from having a say on the initiatives.

But after determining that Egbert's alleged fraud would not prevent the initiatives from going before voters in the fall, Gutman said the attorney general's office launched its own investigation but found only a few hundred cases of “direct misconduct.”

“Even with this review – a review designed to achieve an intended result – the Secretary of State was unable to produce sufficient signatures or petitions to invalidate the initiatives,” Gutman said.

Gutman added another aspect to the investigation, saying the attorney general had asked the court to find that misconduct or error by a circulator or notary on a petition site should result in all petitions touched by those individuals being disqualified.

If this legal theory were allowed to succeed — “something no other court in this country has ever done” — it could have far-reaching implications beyond elections, Gutman said, potentially causing other legal documents to be invalidated , if it turns out that a notary has once acted improperly.

Gutman also reiterated Nebraskans' concerns about Egbert and Henning's credibility.

Egbert admitted in court that he made an agreement with the Attorney General's Office and Hall's District Attorney to testify against the campaign, while Henning was dismissed from court on charges of fraudulent presentation of evidence and is currently serving a suspended sentence for insurance fraud.

Finally, Gutman quoted a deposition from Garrett Connely, a grassroots coordinator for the Nebraskans Campaign for Medical Marijuana, who called the state's alleged misconduct “human error.”

“Whenever people work, human errors happen,” Gutman read from Connely’s deposition transcript. “You would rather your government do better than persecute people for human error.”