District court judge decides current evidence and witnesses didn’t offer ‘overwhelming’ evidence the plaintiff would prevail in the case
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Nebraska’s two medical cannabis ballot measures will indeed be counted and made public this Tuesday, as a district court judge has turned down a request to stop the process.
Lancaster County District Judge Susan Strong sided with Daniel Gutman, the attorney for the ballot sponsors, stating that counting the votes on Election Day is just “status quo.” She also pointed out that Secretary of State Bob Evnen certified the measures for the ballot, and Nebraskans are already casting their votes.
On Friday, Judge Strong also denied a request to postpone the trial.
At the Lancaster County Courthouse on Tuesday, Oct. 29, 2024, both sides questioned witnesses as part of a civil trial over the two medical marijuana ballot measures. One of those attorneys, Anne Mackin from Austin, represents John Kuehn, who filed a lawsuit against these ballot measures. Mackin asked Judge Strong to prevent votes from being counted, arguing that the trial could ultimately invalidate the measures. She noted, “Without a TRO [temporary restraining order] or other injunctive relief before 8 a.m. on Monday, the horse is out of the barn, so to speak.”
County officials could begin counting early and mail-in votes as soon as Monday morning, 24 hours before Election Day.
In response, Judge Strong said she couldn’t find “overwhelming” evidence that would justify halting the vote counting. “I’m not saying Kuehn can’t, or won’t, prevail as the trial continues,” she said on Friday, indicating that the case would need more evidence before she could rule in his favor.
The challenge of reprogramming ballot machines Attorneys from the Nebraska Attorney General’s Office, speaking for Evnen, explained the complexity of nearly 80,000 petition signatures in this case. Deputy Solicitor General Zach Viglianco, speaking on Evnen’s behalf, shared that although he agrees with Mackin that evidence could potentially disqualify the measures, Evnen opposes stopping the vote count, raising concerns over election integrity.
According to Viglianco, the ballot-counting machines have already been set up to tally all items, and reprogramming them just days before the election would be difficult. He mentioned that while it’s “technically feasible” not to release votes publicly, Evnen’s guidance to county officials is only advisory, as county election officials aren’t bound to the case. Judge Strong also questioned whether she even had the authority to issue such a ruling statewide.
‘A travesty of democracy’ Among the state’s witnesses were Jennifer Henning and Michael Egbert, two paid circulators who testified on Thursday and Friday about allegedly breaking the law while gathering petition signatures. Egbert even admitted to using a phone book to forge signatures, a felony for which he’s been criminally charged.
On Thursday, it came out that Henning has her own history; she’s currently on probation for felony insurance fraud and has submitted fraudulent documents in the past. However, she hasn’t been charged in this case.
In response, Gutman, the attorney for the ballot sponsors, defended the ballot measures, telling Judge Strong, “I think it would be a travesty of democracy to halt an election off of the testimony of Michael Egbert or Jennifer Henning, and that’s essentially what the request is.”
A notary takes the stand Assistant Attorney General Justin Hall brought 22-year-old Garrett Connely, a campaign worker for Evnen, to the stand on Friday. On the advice of his lawyer, Molly Burton, Connely invoked the Fifth Amendment against self-incrimination on nearly every question, including those concerning his compliance with the law in notarizing or circulating petitions.
The court reviewed several of Connely’s texts, some with Henning and others with ballot sponsor Crista Eggers, who manages Nebraskans for Medical Marijuana and may also testify. The messages included conversations about Henning asking Connely how to find a notary, and Connely suggested that she could leave her signed petitions at her door for him to pick up.
With Connely pleading the Fifth, neither Mackin nor Gutman questioned him. Gutman also dismissed claims about Connely’s texts, saying, “I will say that, no offense, Mr. Connely, but his text messages are profoundly boring. They pick two or three text messages, construe it out of context, and then come up here and say, ‘Let’s halt an election.’”
Another circulator’s testimony Earlier in the day, Egbert shared that he joined the campaign through a Facebook ad, training briefly by shadowing another circulator. He admitted to signing petitions at home, which he later dropped off at notary Jacy Todd’s business without witnessing her notarize them.
Egbert claimed that he “never signed anything in front of the man,” referring to Todd. But Gutman shared that Todd “vigorously” disputes Egbert’s account and that they spoke often about his memory issues related to a neurological condition. Due to an injury, Todd won’t be testifying.
Later, Judge Strong ruled against Mackin’s attempt to delay the trial until criminal investigations were finished, with Gutman noting that both Mackin and Viglianco had earlier opposed delaying the trial when the ballot sponsors had requested it.
As of now, the trial is expected to conclude Monday, just a day before Election Day on Tuesday.
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