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Medical marijuana in Nebraska faces setback at the 8th Circuit

Organizers are determined to proceed with the effort in the Cornhusker State in the face of repeated setbacks.

OMAHA, Neb. (CN) — The 8th Circuit Court of Appeals on Wednesday reversed a preliminary injunction barring the Nebraska Secretary of State from enforcing a provision of the Nebraska Constitution that a pro-medical-marijuana organization argues is unconstitutional.

The provision requires someone seeking to place an issue on a ballot to collect supporting petition signatures from at least 5% of registered voters in two-fifths of Nebraska’s 93 counties.

Plaintiffs Nebraskans for Medical Marijuana, also known as NMM, and Crista Eggers of Omaha, a paid contractor and campaign manager for NMM, sought to stop Nebraska Secretary of State Robert Evnen from enforcing the requirement. They filed the suit in the U.S. District Court for Nebraska in May.

Nearly half of Nebraska’s nearly 2 million inhabitants are concentrated in two counties in the eastern third of the state — Douglas and Lancaster — that are home to its two largest cities, Omaha and Lincoln. The organization argued that the requirement gives disproportionate influence to the state’s sparsely populated counties. Twelve counties in the Cornhusker State have fewer than 1,000 residents.

The lawsuit is still in progress.

"The Secretary of State’s office will continue to enforce that Nebraska Constitutional provision pending the final outcome of the case,” Evnen said in an emailed statement Wednesday.

But the results of the petition drive were not promising. Last week the Secretary of State’s Office announced it did not qualify and would not appear on Nebraska’s November ballot. There were two initiatives on the issue, each falling short of both in the number of valid signatures and the number of counties the 5% threshold was met in.

The office agreed two days later to review some of the disqualified signatures but predicted to supporters that the outcome would not change. Cindi Allen, a spokesperson for the Secretary of State’s Office, said Wednesday the review was still in progress.

Plaintiffs say a similar ballot initiative in 2020 garnered support from 48 counties, but the Nebraska Supreme Court found it violated the state’s single-subject rule, so medical marijuana was not on the ballot that year.

For Eggers, the ruling by the St. Louis based court was yet another setback for the cause. But she said Nebraskans for Medical Marijuana will keep fighting.

 “We respectfully disagree with most of the opinion,” Eggers told Courthouse News on Wednesday. “As to what happens in the future, I’m not certain. But for today this is another challenge that we are up against. We are continuing to move forward and we don’t give up.”

In the opinion, U.S. Circuit Judge Raymond W. Gruender, a George W. Bush appointee, wrote the plaintiffs needed to show the signature requirement could not survive a rational-basis scrutiny.

“The weight of the State’s interest in lawfully managing its elections and the fact that the signature distribution requirement appears not to violate the plaintiffs’ legal rights tip the balance of the equities in the Secretary’s favor and render an injunction contrary to the public interest,” Gruender wrote.

Daniel Gutman, a contract attorney for the ACLU representing NMM on this case, said NMM believes the same protections for voting also apply to initiative petitions. In an election it wouldn’t matter what counties in Nebraska the votes came from. If enough people voted for something, it would get enacted.

 “The 8th Circuit disagreed with that and they said, basically, that the federal Constitution does not apply with as much force when you are signing an initiative petition as when you are voting in a voting booth,” Gutman told Courthouse News on Wednesday.

The way the provision is written, he said, organizers could qualify Arthur County, with a population of 428, with only 18 signatures. Whereas Douglas County, the state’s most populous, would take more like 18,000, Gutman said. Two or three people withdrawing their signatures in Arthur County could switch it from qualified to unqualified.  

“It puts immense power in the hands of a very small handful of people in rural areas. Their signatures are worth so much more than people in urban areas,” he said. “Our point is that everybody’s signature should be worth the same.”

Gutman said organizers believe the provision is unconstitutional for everyone, not just NMM. On Wednesday supporters filed an amended complaint that lists State Sen. Terrell McKinney as a plaintiff. McKinney is a sponsor of a ballot initiative that seeks to gradually boost Nebraska's minimum wage to $15 per hour.

U.S. Circuit Judge Jane Kelly, a Barack Obama appointee, dissented from Wednesday's ruling, writing, “…any harm to the Secretary in having to accept a petition that satisfies all conditions but the signature distribution requirement is minimal. Overall, the factors strongly support the district court’s ruling.”

What’s next for the NMM effort wasn’t clear Wednesday. Gutman said they may ask for an en banc review of the decision.

Eggers, who got into the medical marijuana effort after her now-8-year-old son Colton was diagnosed with a form of epilepsy with seizures that cannot be controlled with traditional medicine, vowed to persist in what has proved a long and difficult fight.

“We have not been successful, but I can tell you that is not for lack of support,” she said. “There’s a lot of stories just like ours out there. So I’ll keep on going no matter what.”

U.S. Circuit Judge David Stras, a Donald Trump appointee, rounded out the panel.

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Categories / Appeals, Government, Health, Law

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