Nebraska Loses Marijuana Vote on November Ballot

Lori Ann Reese

Posted by Lori Ann Reese on 09/29/2020 in News

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The language used to draft legislation (particularly for medical cannabis laws) can make or break the potential to legalize cannabis at the state level. That is what lawmakers in Nebraska have learned, as the Supreme Court ruled against adding medical cannabis to the November 2020 election ballot.

Other states have struggled with similar legislative obstacles. Each state question that appears on an electoral ballot must specify a single issue. It’s like going to the doctor’s office with multiple conditions. The doctor, in most cases, will only address one of your problems at one appointment. And the legislative process works much the same way.

Many Nebraskan patients (who are waiting for legalized medical cannabis) are frustrated that three gambling laws will appear on the ballot. At the same time, the launch of the medical cannabis program for Nebraska will be delayed, as lawmakers rewrite the legislation. Good news for casinos but bad news for patients with chronic health conditions.

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Gathering Signatures and Momentum for Medical Marijuana Legalization in Nebraska

When the House cannot agree on a measure or proposed new law, the next step is to determine if the law has public support. When you hear about signatures being gathered in support of medical marijuana legalization, it becomes a grassroots effort by advocates to collect signatures. 

Only eleven (11) states have laws that prohibit payment for signatures on state questions or petition circulators. Private companies can be paid as much as $1 to $3 per signature by advocate organizations, lobbyists, and non-profits that support the proposed legislation. And each state has a set number of signatures that must be collected before a proposed law may appear on an election ballot.

Nebraskans for Medical Marijuana is an organization that is championing the legalization of medical marijuana in the state. In July, the group collected enough signatures to ensure that the state question of medical marijuana would appear on the November 2020 election ballot. Despite oppositional legal challenges seeking to remove the ballot’s vote, the signature collection’s constitutional requirements were met. Senator Anna Wishart (D) and Senator Adam Morfeld (D) were co-chairs of the campaign.

Lancaster County Sheriff Challenge Trumped Ballot Signatures

Efforts to stop the signatures were made. Mass advertising against the legalization of medical cannabis was paid for by a well-funded opposition. And it looked like Nebraska residents would have the opportunity to decide by vote if medical cannabis should be legalized in their state.

And then, the Lancaster County Sheriff, Terry Wagner, stepped in. Sheriff Terry Wagner filed a complaint that the proposed legislation violated the Nebraska constitution. 

Terms of the Proposed Medical Marijuana Law in Nebraska Disputed

Ultimately community groups that opposed the legalization of medical marijuana in Nebraska had concerns about addictions to Article XV of the Nebraska Constitution. The constitution would be changed under the context of the new cannabis laws in four key areas.

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1) Any person in the State of Nebraska has the right to use any plant in the genus Cannabis L. and any parts of such plant in the State of Nebraska.

2) The right to use any plant in the genus Cannabis L. and any of the parts of such plant shall include (a) non-commercial personal possession, consumption, production, and distribution by persons twenty-one years of age and older, (b) commercial possession, consumption, production, and distribution, and (c) non-commercial personal possession and consumption by a person under twenty-one years of age with written permission from a parent or legal guardian and a written recommendation from a licensed health care provider.

3) Any laws and ordinances in the State and all other ordinance-making bodies or political subdivisions in this State that conflicts with this section’s application will be considered null and void. Nothing in this section shall allow a person to engage in conduct that endangers others.

4) If any portion, clause, or phrase of this section is, for any reason, held to be invalid or unconstitutional by a court of competent jurisdiction, the remaining portions, clauses, and phrases shall not be affected but shall remain in full force.

The points of opposition are articles (1) and (2). The concern over the wording of the state question addressed too many variables in the proposed legal changes. It discusses private citizen use of cannabis in broad terms. And it also concerned law enforcement agencies in the state, regarding the format of permission to distribute cannabis without legal consequence.

Sweeping Immunity to Prosecution for Cannabis Charges Another Source of Contention

It was the language around immunity that presented the most significant concern to lawmakers and law enforcement. The terms of the proposed law did not offer law enforcement any power to prosecute illicit criminal production or distribution of cannabis in Nebraska.

Like other states, the iteration of the medical cannabis legislation was written to protect Nebraska patients from prosecution for possession for medical use. And to allow patients to grow their cannabis for medical use if they are registered with the state. 

Law enforcement organizations and advocates felt that it would offer total protection for illegal use or retailing. Employers were also concerned it would mean protection for employees who used cannabis during working hours. And would prevent employers from the right to random drug test employees and dismiss on the grounds of positive testing for THC.

In all, the petition by Lancaster County Sheriff Terry Wagner identified that there were eight (8) total clauses in the state question. Each state question must have only one clause. 

The Nebraska Supreme Court Response to Remove the Medical Marijuana Vote in 2020

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The Supreme Court of Nebraska stripped the cannabis initiative from the November ballot with this decision and statement:

“As proposed, the NMCCA contains more than one subject–by our count, it contains at least eight subjects. In addition to enshrining in our constitution a right of certain persons to produce and medicinally use cannabis under subsections (1) and (2), in subsections (3) and (4), the NMCCA would enshrine a right and immunity for entities to grow and sell cannabis; and in subsections (6), (7), and (8), it would regulate the role of cannabis in at least six areas of public life. These secondary purposes are not naturally and necessarily connected to the NMCCA’s primary purpose. As such, they constitute logrolling… The decision of the Secretary of State is reversed. We issue a writ of mandamus directing him to withhold the NMCCA from the November 2020 general election ballot.”

What this means for advocates of medical cannabis in Nebraska is a do-over from scratch. The proposed legislation will need to be rewritten and then brought back through the House for review and approval. 

The new legislation will have to ask the state question first, to determine if the majority of Nebraska residents want to legalize medical cannabis. Then, other conditions such as the ability to grow cannabis for personal use, limitations to the amount patients can purchase (and potency caps), and other issues will be presented as separate petitions.

It is interesting to note that lawmakers also criticized the legislation written regarding the legalization of gambling in Nebraska. The Secretary of State Bob Evnen stated that the gambling measure was “misleading and confusing.” It will still appear on the November ballot for Nebraska voters. 

There are three proposed measures in the gambling legislation (not one as constitutionally required).

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