Judge hears final arguments in challenge to Nebraska medical marijuana petitions

Nebraskans will learn whether initiatives to legalize and regulate medical marijuana in the state passed Tuesday night after votes for each are counted.

But the ultimate fate of the medical marijuana legalization initiatives will be determined at a later date by a Lancaster County District Court judge following a legal challenge brought by a former state senator and Secretary of State Bob Evnen.

Judge Susan Strong took the case under advisement Monday afternoon following closing arguments, hours after election workers began tabulating early ballots cast ahead of Tuesday's general election.

The judge previously declined to issue an order preventing the votes from being counted .

Strong will accept briefs from the parties in the case in mid-November, and indicated she planned to hand down a decision before the election is certified on Dec. 2.

She added she anticipated the case will be appealed to the Nebraska Supreme Court, and hoped to set a briefing schedule that gave justices "enough time to have a meaningful review before that date."

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

For nearly three hours, Assistant Attorney General Justin Hall peppered Eggers with questions about text message conversations she had with others working on the campaign, as well as her activities as a notary for the medical marijuana petitions.

In one exchange shown in court, Eggers directed a circulator to stop filling in blank areas on the petitions, telling the circulator: "If they catch that they may throw all that (circulator's signatures) out if they could prove it."

"Even a little zip code added will toss it," Eggers followed up in the text message exchange. "We can't add anything for people anymore. We anticipate they will scan and analyze them all."

Hall also asked if Eggers had notarized petitions outside of the presence of a circulator, or directed others to do so, too.

But, like other campaign staff who have not been criminally charged, Eggers, through her personal attorney, Renee Mathias, invoked her Fifth Amendment right against self-incrimination to nearly every question.

Following Eggers' testimony, during closing statements, Steven Guenzel, an attorney representing former state Sen. John Kuehn, who sued Evnen to stop the petitions from being certified or counted, said Nebraskans for Medical Marijuana engaged in "extensive notary malfeasance."

Led by "very zealous people who cared very much about their cause," Guenzel told Strong: "That zeal gave way to ends justify the means."

Guenzel said a third-party contractor hired by Kuehn demonstrated the vast extent of the efforts 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 more than 30,000 signatures could potentially have been tainted by fraud or malfeasance, Guenzel said.

The number of potential signatures Arizona attorney Kory Langhofer identified should be removed from the initiative aligned with the attorney general's investigations, he added.

Zach Viglianco of the Nebraska Attorney General's Office, echoed Guenzel, saying Nebraskans for Medical Marijuana operated under a "win at all cost" mentality in its 2024 campaign after failing two previous times.

In a lengthy review of the evidence, Viglianco said the state found copious instances of petition pages 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 to engaging in those activities at the behest of Eggers and other campaign leaders, he said.

All of those efforts were part of what Viglianco described as a "there are no rules" ethos expressed by Eggers in a text message to Henning.

While the text message in question urged Henning to continue collecting signatures at a concert venue in Omaha and to deal with the consequences later, attorneys for the state insisted it demonstrated Eggers' drive to succeed no matter what.

"They weren't following the rules because they didn't care about the rules," Viglianco said. "They were told that there are no rules and they could just disregard them and hope for the best."

But Daniel Gutman, an attorney representing the ballot sponsors, said no evidence had been introduced at trial that proved thousands of names were signed fraudulently.

Instead, Gutman argued the state was using Egbert, the Grand Island man accused of forging dozens of signatures onto petition pages "as a means of obtaining a political end" to stop Nebraskans from having their say on the initiatives.

After it was determined that Egbert's alleged fraud would not prevent the initiatives from being certified to go before voters this fall, however, Gutman said the attorney general's office launched its own investigation, but found only a few hundred instances of what it called "direct malfeasance."

"Even with this scrutiny — scrutiny intended to reach an intended result — the secretary of state could not come up with enough signatures or petitions to invalidate the initiatives," Gutman said.

Adding another wrinkle to the investigation, Gutman said the attorney general asked the court to find that wrongdoing or a mistake made by one circulator or notary on one petition page should disqualify any petitions touched by those individuals.

If that legal theory were allowed to succeed — it's "something no other court in this country has ever done" — it could have wide-ranging implications that go beyond elections, Gutman said, potentially rendering other legal documents void if a notary was found to have acted improperly even once.

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

Egbert admitted to the court he had an agreement with the attorney general's office and Hall County Attorney to testify against the campaign, while Henning has been rebuffed in courts for offering fraudulent evidence and is currently serving probation for insurance fraud.

To close, Gutman quoted from deposition testimony given by Garrett Connely, a grassroots coordinator on the Nebraskans for Medical Marijuana campaign, who attributed the wrongdoing alleged by the state as "human error."

"Whenever you have people working, you're going to have human error," Gutman read from Connely's deposition transcript. "You would like to think better of your government than to go after people for human error."

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Higher education/statehouse reporter