"The timing of the court's decision does not impact in any way my certification decision."

By Zach Wendling, Nebraska Examiner

Nebraska Attorney General Mike Hilgers (R) pledged Tuesday that his office's ongoing civil and criminal investigations into two medical cannabis measures won't impact whether he certifies the election results.

Hilgers, commenting at a news conference Tuesday about a different lawsuit, said he will consider certification regardless of the cannabis-related lawsuit or the related timing of an expected judicial ruling after a four-day trial involving the ballot measures in Lancaster County District Court.

Five state constitutional officers, including Hilgers, are scheduled to meet December 2 to determine whether to certify the November 5 election results. That includes Nebraskans' overwhelming support of Initiative Measure 437, to legalize medical cannabis, and Initiative Measure 438, to regulate the drug. Measure 437 passed with 71 percent voter approval, while Measure 438 passed with 67 percent approval.

"I see no reason sitting here today to not certify," Hilgers said Tuesday.

"We know the judge will look at all the arguments and the facts carefully, and so we'll wait for a ruling."

In addition to Hilgers, the Board of State Canvassers includes:

A spokesperson for Evnen said he will certify the election results "unless ordered by the court to do otherwise."

Hilgers said his office's criminal investigation is ongoing. The investigation has already resulted in multiple public criminal charges against a paid petition circulator, who pleaded guilty November 8, and a notary public, whose criminal case is ongoing.

Hilgers's office, in a legal brief filed Monday, described the final plea the ballot sponsors made to District Judge Susan Strong in three ways:

The Attorney General's Office has joined John Kuehn, a former Republican state senator and former member of the State Board of Health, in challenging tens of thousands of signatures, alleging widespread circulator fraud and notary malfeasance that means the petitions never should have been placed on the ballot. Evnen certified the measures September 13, based on current information.

Among the sponsors' attorneys' main defenses are that text messages of a ballot sponsor introduced at trial are being taken out of context and that no court has "imputed" alleged notarial malfeasance or errors on one document to all others the notary touched.

The AG's Office responded that not all text messages were defended and that they together "plainly describe or allude to fraudulent or malfeasant behavior."

Evnen's attorneys also said the requirement that a circulator's oath be signed in front of a notary isn't a "suggestion" but a critical requirement prescribed by the Legislature.

"According to the Sponsors, while dishonest behavior by circulators may be sufficient to invalidate collected signatures, dishonest behavior by notaries is not," the AG's Office wrote. "That myopic view gives the important role notarization plays in the Legislature's anti-fraud scheme far too short a shrift."

Judge Strong has the final briefs from the ballot sponsors, Kuehn and Evnen and can make a ruling at any time. Hilgers said he doesn't want the December 2 election certification to be an "artificial deadline" for a ruling.

"It is not. Period. Full stop," Hilgers said. "The timing of the court's decision does not impact in any way my certification decision, nor would I think, as a matter of law, does it impact whether anyone would or would not vote to certify."

Multiple attorneys in the case, and Strong herself, have acknowledged that no matter the outcome, the case will likely be appealed to the Nebraska Supreme Court.

This story was first published by Nebraska Examiner.