A day after the requirement for ballot initiatives to gather signatures from 5% of voters in 38 of Nebraska's 93 counties was deemed unconstitutional, a federal judge denied a motion to keep the requirement in place until an appeals court can take up the matter.
U.S. District Court John Gerrard denied the Nebraska Attorney General's request for a stay on a preliminary injunction against Secretary of State Bob Evnen on Tuesday, saying the state failed to meet the standard to grant one.
The ruling follows a 46-page decision on Monday, also from Gerrard, siding with Nebraskans for Medical Marijuana, who asked for the court to stop Evnen from enforcing the multicounty requirement ahead of the July 7 deadline for submitting signatures.
Crista Eggers, a campaign coordinator for the ballot initiatives seeking to allow doctors to recommend cannabis to their patients, and providing patients access to cannabis, said the multicounty requirement diluted the voting power of individuals in the state's most populous counties.
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That, Nebraskans for Medical Marijuana and the ACLU of Nebraska argued, violated the Equal Protection Clause of the Fourteenth Amendment.
On Tuesday morning, the attorney general's office, which is representing Evnen as the state's chief election officer, asked Gerrard for a stay while an appeal of the decision can be decided by the Eighth Circuit Court. Later in the day, Gerrard denied it.
Solicitor General James Campbell, writing to the court in support of the motion to stay the preliminary injunction, said the attorney general's office believes it will succeed on the merits of the constitutional claims during the appeal.
"Just last year, a judge on this court granted a stay pending appeal even though it did not think that the appellants were likely to prevail," Campbell wrote.
Without an appeal, the state would be “irreparably harmed” by being prevented from performing its duty under the current law, the attorney general’s office added, and Nebraskans for Medical Marijuana would not be harmed.
In the brief, the state says it is “quite possible” Nebraskans for Medical Marijuana will qualify for the 2022 ballot under the current multicounty requirement.
Eggers, in a phone interview Tuesday, said Nebraskans for Medical Marijuana is pleased with the injunction even as the campaign continues to gather signatures as if it would need to qualify 38 counties.
To date, the pair of petitions being circulated by Nebraskans for Medical Marijuana have been signed by more than 100,000 registered voters in the state, Eggers said, and the campaign has qualified 22 counties with 23 days remaining before the deadline.
“Yesterday was a big day for us, but we still have a long road ahead of us,” Eggers said. “We will continue to do what we have been doing.”
Lincoln Sen. Anna Wishart, who is co-sponsoring the pair of petitions to legalize medical marijuana, said the campaign has built “a large infrastructure” of grassroots supporters across the state, and will continue to rely upon the efforts of its volunteers.
“We do recognize the goal is we need to collect enough statewide to get across the finish line, and we’re focused on doing that,” Wishart said.
Leaders of Voter ID petition say strategy unchanged
Another campaign will also continue its effort to pass the multicounty requirement that was amended into the state constitution in 1912.
Citizens for Voter ID, which is seeking to enact a constitutional amendment requiring voters to show a photographic identification before they cast their ballot, will continue on as planned, said co-sponsor state Sen. Julie Slama of Dunbar.
“Yesterday’s ruling does not change our strategy, as we’re on track to exceed the threshold number of counties already,” Slama said in a text message. “Voter ID has the support of both rural and urban Nebraska, so we’ve had no trouble in achieving the county threshold.”
Slama said Citizens for Voter ID, which needs roughly 124,000 signatures, would not disclose how many it has collected before the July 7 deadline for submitting them to Evnen’s office, however.
In recent weeks, circulators of the voter ID petition have been accused of misleading potential signers about its intent or telling voters they are employed by the state; Slama has dismissed the complaints as coming from Sen. Carol Blood of Bellevue, the Democratic nominee for governor, and other “liberal operatives” who oppose the initiative.
Campbell, in his brief supporting a motion to stay the injunction ordered by Gerrard, said without the multicounty rules, as many as 16 total initiatives or referendum measures could be put before voters in November.
If those petitions qualify for the November ballot and the preliminary injunction is later overturned, those measures could be invalidated, Campbell wrote.
“This harms not only initiative petitions but also the voters presented with initiatives that might be erased," he wrote. “Asking Nebraskans to vote on a full slate of initiatives with a cloud of uncertainty surrounding them is not in the public interest. That undermines voter trust in the process.”
Of the 13 remaining petitions (excluding the pair of medical marijuana petitions as well as the voter ID petition), at least two are defunct, including a previous medical marijuana petition sponsored by Wishart and Sen. Adam Morfeld, also of Lincoln.
Other petitions see mixed success
Bill Hawkins of the Nebraska Hemp Company said he had “taken a step back” from pushing a proposed constitutional amendment granting all persons “the right to use all plants in the genus cannabis.”
The proponent of full legalization said he agreed with the rule that petitions be signed by 5% of voters in two-fifths of Nebraska’s counties, however, even if it makes it more difficult for grassroots campaigns to find support for their issue.
“I believe central and western Nebraska count as much or more than urban Lincoln and Omaha,” Hawkins said. “We are a rural state. It needs some geographic distribution.”
“The people reserve the right to the petition, not just the people of Douglas, Sarpy and Lancaster,” he added.
Other initiative and constitutional amendment petitions are also in circulation at events across the state, but it’s unlikely they will reach the signature threshold ahead of the deadline.
Robert Rhodes, of Elkhorn, the sponsor of an initiative to repeal Nebraska’s motorcycle helmet laws, said the campaign “wasn’t doing very well,” but is still alive, having been handed off to several motorcycle clubs to gather signatures.
A slew of proposed constitutional amendments from Michael Connely of York, including creating rights to so-called “constitutional carry” of firearms and eliminating the Nebraska Department of Education, have also been registered with the secretary of state’s office.
Connely did not return an email seeking comment.
On Tuesday afternoon, however, Gerrard denied the state’s motion to stay the injunction, writing in a three-page order Evnen's attorneys did not provide any additional arguments to change his mind.
"(T)he court finds nothing here to change its mind about its findings, yesterday, that the plaintiffs are likely to succeed and that any harm to the defendant and the public interest is outweighed by the harm to the plaintiffs," he wrote.