OMAHA, Neb. (CN) — Getting medical marijuana on the ballot this fall in Nebraska will hinge on whether a judge rules that part of the state Constitution violates due process and equal protection rights, according to a federal lawsuit filed Monday.
Plaintiffs Nebraskans for Medical Marijuana, also known as NMM, and Crista Eggers of Omaha, a paid contractor, volunteer and sponsor of NMM, are seeking to enjoin Nebraska Secretary of State Robert Evnen from enforcing what they describe as an unconstitutional provision in the Nebraska Constitution that 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.
“We believe the current requirement to be unconstitutional, and it’s our position we shouldn’t have to go through an unconstitutional process before we can challenge it,” said plaintiffs' attorney Daniel Gutman, explaining why they are seeking an expedited opinion.
The case is based in part on extreme population contrasts that mark the Cornhusker State. Nebraska has a population approaching 2 million, but nearly half of those individuals live in two counties in the eastern part of the state: Douglas County — where the city of Omaha is located — and Lancaster County — home to the state capital and Big Ten university city of Lincoln.
But of the state's 91 other counties,12 have fewer than 1,000 inhabitants.
This means the two-fifths requirement gives voters in the state’s sparsely populated counties disproportionate influence, diluting that of urban voters, violating the equal protection and due process clauses of the U.S. Constitution, the plaintiffs argue in the complaint, adding that it also violates the First Amendment.
“What that does is it provides counties that have much fewer people much more power the ability to qualify a ballot initiative,” Gutman said. “It provides more power to certain counties more than other counties, namely sparsely populated counties.”
The complaint claims the rule forces NMM to deploy its volunteers to rural counties when they could be gathering far more signatures around Omaha and Lincoln.
“For example, as of May 13, 2022, NMM had twenty-five volunteers committed to signature gathering the following day, May 14. Without the signature distribution requirement, NMM would deploy those volunteers in and around Lancaster and Douglas Counties for maximum signature gathering. With the signature requirement, however, NMM is forced to spend precious resources deploying the volunteers to rural areas. NMM must reimburse volunteers for these costs, which include food stipends and gas money," the complaint states.
A volunteer can, on average, gather 400 signatures in a four-hour shift in Douglas County. In Butler County, where not quite 8,000 people live, the same volunteer would collect an average of 50 signatures in the same amount of time, according to the complaint.
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.
The Nebraska Secretary of State office said the two-fifths clause in the state Constitution is more than 100 years old.
Cindi Allen, a spokesperson for the Nebraska Secretary of State, said Evnen would enforce the provision unless the court ordered him to do otherwise. “If it is changed, he will do what the court orders,” she said.
Nebraska is one of five states with provisions like this in their constitutions, said David Bateman, associate professor of government at Cornell University. The other states are Mississippi, Missouri, Montana and Nevada.
“There is a counter-majoritarian quality to it,” he said. “Constitutions in the United States often reward diffuse support rather than majority support.”
But courts have struck down these provisions in some states, including in Nebraska in 2014, when a federal judge found the provision unconstitutional. The Eighth Circuit overturned that decision, but it did not rule on the merit of the case, instead only finding that the plaintiff lacked standing.
“There is a constitutional case to be made here,” Bateman said about the newly filed complaint. “But Nebraska is not alone in having this.”
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