Judge issues injunction in medical marijuana lawsuit blocking state from enforcing ballot requirement | Regional Government

A federal judge has entered a preliminary injunction barring the state’s top election official from rejecting proposed ballot initiatives for failing to gather support from 5% of voters in 38 of Nebraska’s 93 counties, which has been required for more than 100 years.

The decision came less than a month before the July 7 deadline for submitting petition signatures to Secretary of State Bob Evnen’s office to appear on the ballot in November.

Crista Eggers, campaign coordinator for Nebraskans for Medical Marijuana, sued Evnen last month, arguing the requirement was unconstitutional because it diluted the votes of residents who live in the state’s more populated urban areas.

In a 46-page decision Monday, U.S. District Judge John Gerrard agreed.

“The plaintiffs in this case argue, among other things, that the 38-county rule violates the Equal Protection Clause of the U.S. Constitution, because it gives more power to voters in rural counties than in urban counties. And it does,” he said.

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The Fourteenth Amendment requires states to treat individuals the same way as others in similar conditions and circumstances.

Gerrard said Eggers and Nebraskans for Medical Marijuana are “more likely than not to succeed” on their equal protection claim and will be irreparably harmed by continued enforcement of the 38-county rule.

“The state’s interest in enforcing its election laws is outweighed by the ongoing injury to constitutional rights,” Gerrard said.

The judge blocked the state from taking any action to enforce its county distribution requirement for the qualification of proposed ballot initiatives.

The Nebraska Attorney General’s Office, which is representing Evnen, had taken the position that requiring a petition be signed by 10% of legal voters, including 5% in two-fifths of the state’s 93 counties, could not be severed from the right to initiative granted in the state constitution because they have been linked since the 1912 origin.

In other words, if the 38-county rule treats voters differently, then Nebraska’s entire initiative and referendum process should be struck down.

Gerrard called the argument that the baby must go with the bathwater “eyebrow-raising” and said the right of initiative is a “fundamental right” that the citizens of Nebraska possess.

“So the state may not discriminate against them in their exercise of that right,” he said. “And, the court finds, the power of initiative can be effectively exercised without discrimination.”

He said Nebraska is free to require a showing of statewide support for a ballot initiative, but it cannot do so based on units of dramatically differing population, “resulting in discrimination among voters.”

Under the state’s constitution, a petition to enact a law needs signatures from 7% of Nebraska’s registered voters, and a petition to amend the state constitution requires signatures from 10% of registered voters.

In addition to gathering signatures of roughly 87,000 registered voters, proponents of an initiative also have been required to gather signatures from at least 5% of the registered voters in at least 38 of the 93 counties in Nebraska.

Eggers’ attorney, Daniel Gutman and the ACLU of Nebraska, argued that the 38-county rule violates the U.S. Constitution by making the signature and vote of a registered voter in a more populous county “less meaningful than the signature and vote of other Nebraska residents in more sparsely populated counties.”

And, they argued, it forces petition circulators to curtail their efforts in more populous counties in order to get signatures from other counties, limiting the number of people they can reach and making it more difficult to get their proposals on the ballot.

Solicitor General James Campbell argued that before doing anything, the federal judge should ask the Nebraska Supreme Court to weigh in on whether the 38-county rule could be severed from the rest of Article III, Section 2 and what would happen if that part were ultimately stricken.

But Gerrard said given the preliminary nature of the case, the only conclusion he could draw at this point “is that the plaintiffs are likely to succeed on that claim — not that they have.”

So it wasn’t an appropriate question to certify, “and the court seriously doubts that the Nebraska Supreme Court would entertain it.”

In response to Monday’s decision, Attorney General Doug Peterson said in an email: “This case raises important legal questions concerning the initiative process in Nebraska. Therefore we will take the steps necessary to get the matter before the Eighth Circuit Court of Appeals as soon as possible.”

On the other side, Jane Seu, an ACLU of Nebraska attorney, said it will help protect democracy in Nebraska.

“Whether you live in Hall County, Sarpy County, Lancaster County or Scotts Bluff County, your signature on a petition ought to have just as much power as a signature in some of our state’s least populated counties,” she said. “We’re proud of our progress in safeguarding Nebraskans’ rights to petition our government for change and we believe we are on track to earn a permanent victory in this case. The bottom line is that Nebraskans have equal rights to constitutional processes.”

Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger

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