Split appeals panel rejects Nebraska marijuana injunction

OMAHA, Neb. (AP) — The 8th U.S. Circuit Court of Appeals on Wednesday rejected a request to temporarily block part of Nebraska’s ballot initiative petition process sought by a group trying to legalize medical marijuana in the state.

Nebraska’s ballot petition law, which is enshrined in the state constitution, requires petitioners to collect signatures of 7% of registered voters in the state to enact a statute. Additionally, it requires signatures be gathered from at least 5% of voters in at least 38 of the state’s 93 counties.

Nebraskans for Medical Marijuana and the American Civil Liberties Union of Nebraska sued, arguing that the requirement violates free speech and equal protection rights by making some voters’ signatures more valuable than others. The requirement, they said, makes the signature of one voter in sparsely populated Arthur County equal to that of 1,216 voters in Douglas County, which includes Omaha.

In June, U.S. District Judge John Gerrard agreed, saying that while the state can require statewide voter support for a ballot initiative, it “may not do so based on units of dramatically differing population, resulting in discrimination among voters.” Gerrard issued an order temporarily blocking the 5% requirement.

State officials appealed, and the 8th Circuit quickly put a hold on the federal judge’s order until it could rule on the state’s appeal A split panel of the 8th Circuit did so Wednesday.

U.S. Circuit Judges Raymond Gruender and David Stras found that the lawsuit is not likely to succeed.

“On balance, the preliminary-injunction factors clearly weigh in the Secretary’s favor,” Gruender wrote in the decision. “The district court abused its discretion by granting the plaintiffs’ request for a preliminary injunction.”

In a dissent, Judge Jane Kelly wrote that “if the right to vote is fundamental, I see no reason why it should not apply equally to the initiative process at the heart of Nebraska’s electoral and legislative system.”

Nebraska Secretary of State Bob Evnen issued a statement saying his office “will continue to enforce that Nebraska constitutional provision pending the final outcome of the case.”

The ACLU said in a statement: “We are not giving up.”

Daniel Gutman, an Omaha attorney representing the marijuana petition group, agreed that the effort to protect voters’ rights would continue and that the group might ask the full 8th Circuit to weigh in on the issue.

“This issue has obviously divided judges,” Gutman said. “So we’ve put up a pretty strong fight so far.”

The medical marijuana effort failed to gather the 87,000 valid signatures it needed by the July 7 deadline to get to get the proposal on the November ballot. It also reached the 5% threshold in only 27 states.