Nebraska medical marijuana advocates aren’t going down without a fight. Following a state Supreme Court ruling on Thursday that removed their initiative from the November ballot, the campaign announced on Friday that it will be creating a new committee to roll out a revised citizen petition for 2022.
The court determined that the measure violated Nebraska’s single-subject rule that limits the scope of what can be placed on the ballot before voters. The campaign strongly disputed the decision but said it will take lessons from the case to put together a new initiative that satisfies the court’s interpretation of state law by being “simple and broad” and has “no limitations.”
That means that while the measure that voters were prevented from deciding on this year had a carefully crafted system of licensing and regulations, the next version could allow the supply chain for medical cannabis to roll out with virtually no limitations on caregivers and patients—a situation that the prohibitionist activists who succeed this week will probably like even less.
“The Court has taken an already confusing and muddled single subject test and left Nebraska with no clear standard or test,” Nebraskans for Medical Marijuana said in a blog post. “We are left with an inference that if you do propose an initiative, it better be simple and broad and have no limitations, even if they are natural and necessary to the single subject. So that is exactly what we will do.”
All of this comes after the reform campaign submitted nearly 200,000 signatures in July to qualify the measure. But last month, Lancaster County Sheriff Terry Wagner filed a challenge against the secretary of state’s office, making the single-subject objection.
While the state rejected that argument, the local police official took it up in court. Lawyers for both the sheriff and supporters of the measure—including state Sens. Adam Morfeld (D) and Anna Wishart (D)—made their respective arguments during a hearing last week.
The attorney for the plaintiff contended that the various provisions in the measure on patient access, retail sale and distribution constitute multiple issues that a single ballot initiative is not legally able to cover. But the defendants’ counsel made the case that this initiative’s scope is consistent with others that have been presented to voters and the single-subject matter is not at issue.
The court released its final opinion Thursday, determining that the proposal does in fact violate the single-subject rule and cannot proceed to the ballot.
“With their ruling, the Court has made less clear an already confusing single subject legal standard,” Morfeld said in a press release. “We are left with the conclusion that if you do propose an initiative, it must be simple and broad and have no limitations, even if they are natural and necessary to the single subject. We will take this all into account when looking into drafting new language.”
Next week we will be launching a new medical marijuana ballot initiative! In addition, @NebraskaAnna will be introducing legislation, and we will be partnering with orgs that will be tracking and holding your elected officials accountable for their positions on Medical Marijuana.
— Senator Adam Morfeld (@Adam_Morfeld) September 11, 2020
The senator also speculated in a tweet on Friday that anti-cannabis Gov. Pete Ricketts (R) was behind the legal challenge.
“Lawsuits to strike down initiatives like medical marijuana that require highly paid attorneys do not just simply pop up out of nowhere,” he said. “It is coordinated and funded by the guy in the Northeast corner of the capitol. I have seen it played out time after time.”
Lawsuits to strike down initiatives like medical marijuana that require highly paid attorneys do not just simply pop up out of nowhere. It is coordinated and funded by the guy in the Northeast corner of the capitol. I have seen it played out time after time.
— Senator Adam Morfeld (@Adam_Morfeld) September 11, 2020
“Here’s the bottom line: You cannot have a right to medical marijuana for medical purposes if you do not have access to a supply,” the campaign said. “There is a natural and necessary connection and thus a singular purpose, and this does not violate the single subject rule.”
The committee that’s being formed to push for a 2022 petition plans to partner with other advocacy groups to encourage candidates and elected officials to adopt a pro-reform position. They will also be creating a scorecard tracking where lawmakers stand on the policy change.
“If anyone thinks we are going to pack our bags and go home, they’re wrong and don’t understand why we fight so hard to legalize medical cannabis,” Wishart, a state senator and cochair of the campaign, said. “Our home is Nebraska, and we are here to stay and advocate for parents and families who are watching their loved ones needlessly suffer. We will not rest until Nebraska enacts a compassionate medical cannabis law that provides relief to the people who desperately need it.”
Wishart has previously introduced cannabis reform legislation, but it’s stalled in the legislature. As the committee pursues another ballot initiative, it’s possible that activists and the lawmakers will continue the policy change push legislatively in the interim.
While the activists suspended signature gathering amid the COVID-19 outbreak, they relaunched its efforts in May with new social distancing safety protocols in place. They overcame those obstacles, but the court challenge ended the fight to legalize medical cannabis in the state for the year.
Nebraska’s attorney general said in an opinion last year that efforts to legalize medical marijuana in the state would be preempted by federal law and “would be, therefore, unconstitutional.”
Here’s a status update on other 2020 drug policy reform campaigns across the country:
A measure to legalize marijuana in Arizona officially qualified for the November ballot last month.
Montana’s secretary of state also announced in August that cannabis activists collected more than enough signatures to qualify two legalization measures.
The Washington, D.C. Board of Elections certified last month that activists submitted enough valid signatures to place a measure to decriminalize plant- and fungi-based psychedelics in the nation’s capital.
Oregon’s secretary of state confirmed in July that separate measures to legalize psilocybin therapy and decriminalize possession of all drugs while expanding treatment services will appear on the November ballot.
Prior to the COVID-19 outbreak and stay-at-home mandates, separate measures to legalize marijuana for medical and recreational purposes qualified for South Dakota’s November ballot.
The New Jersey legislature approved putting a cannabis legalization referendum before voters as well.
And in Mississippi, activists gathered enough signatures to qualify a medical cannabis legalization initiative for the ballot—though lawmakers also approved a competing (and from advocates’ standpoint, less desirable) medical marijuana proposal that will appear alongside the campaign-backed initiative.
Idaho activists behind a medical marijuana legalization initiative were hoping to get a second wind after a federal judge said recently that the state must make accommodations for a separate ballot campaign due to signature gathering complications caused by the coronavirus pandemic. But following a U.S. Supreme Court ruling against the other group, hopes are dashed.
A campaign to legalize cannabis in Missouri officially gave up its effort for 2020 due to signature collection being virtually impossible in the face of social distancing measures.
North Dakota marijuana legalization activists are shifting focus and will seek qualification for the 2022 ballot.
Washington State activists had planned to pursue a drug decriminalization and treatment measure through the ballot, but citing concerns about the COVID-19 outbreak, they announced in July that they will be targeting the legislature instead.
Photo courtesy of Brian Shamblen.