Defendant and Cross-Claimant, Secretary of State Robert B. Evnen, submits this Post-Trial Brief in support of his request for declaratory relief.
INTRODUCTION
Cheating is a choice. A choice that comes with consequences. Here, the decision to cheat came from the very top of the Nebraskans for Medical Marijuana (NMM) initiative campaign, from Sponsor and campaign manager Crista Eggers, and was then carried out by a host of petition circulators and notaries, all following her lead. Adhering to Eggers’ declaration that “We don’t follow the rules anymore,” supporters of the petitions knowingly engaged in widespread wrongful conduct. Circulators engaged in fraud, notaries in malfeasance, and the upper echelons of the campaign hierarchy undertook efforts to sweep this pervasive wrongdoing under the rug and prevent its full extent from ever being revealed. The evidence presented by the Secretary establishes that tens of thousands of signatures submitted by NMM were either collected or notarized by dishonest actors. Far from just one or two isolated individuals, the dishonesty permeated the entire campaign. At least a dozen individuals—Crista Eggers, Garrett Connely, Michael Egbert, Jacy Todd, Jennifer Henning, Shari Lawlor, Shannon Coryell, Marcie Reed, Timothy Bell, Morgan Rye-Craft, Kimberly Bowling-Martin, and Patricia Petersen—all engaged in either circulator fraud, notarial malfeasance, or both. These names include individuals at the very top of the campaign and who, collectively, did the bulk of the work. Nor can their misconduct be dismissed as mere technical mishaps or unintentional mistakes. The evidence encompasses at least five categories of circulator fraud (including forgery) and at least four categories of notarial malfeasance, all of which require intentional misaction. In short, these twelve willfully disregarded and flagrantly violated the rules governing the initiative process. In so doing, their fraud and malfeasance has tainted over 77,000 signatures across both petitions.
Furthermore, the sheer scope of their misconduct has made it practically impossible to determine how many genuine signatures were actually submitted by the Sponsors. The evidence before this Court is overwhelming. So overwhelming that a second phase of trial is entirely unnecessary. Intentional wrongful conduct permeated the campaign from top to bottom. In rare cases such as this, where an initiative campaign is completely riddled with fraud and tainted by malfeasance, “the only effective way to protect the integrity of the initiative process and to uphold the constitutional and statutory rights and restrictions associated therewith is to strike the . . . petition in its entirety.” In re Initiative Petition No. 379, State Question No. 726, 155 P.3d 32, 34 (Okla. 2006); see also Brousseau v. Fitzgerald, 675 P.2d 713, 716 (Ariz. 1984) (“The only way to protect the [signature collection] process from fraud and falsehood is to make such conduct unprofitable.”). This consequence is severe, but it is justified. “[F]raud in invoking the initiative process is fraud perpetrated on Nebraska’s Secretary of State and other public officials, who must determine the validity of the signatures on a petition, and ultimately on the people of Nebraska.” State v. Monastero, 228 Neb. 818, 826 (1988). This Court cannot turn a blind eye to the Sponsors and NMM campaign members’ willful disregard of the Nebraska Constitution and the statutory scheme that regulates the initiative process. See Barkley v. Pool, 102 Neb. 799, 169 N.W. 730, 731 (1918). When an initiative petition “not in compliance with the requirements of the law”—such as one that is “invalid for fraud”—is submitted to public officials, it presents a “judicial question[.]” Id. When faced with this sort of fraud, malfeasance, and wrongdoing, only the judiciary can protect the integrity of the initiative process. Wrongdoing of this magnitude cannot be ignored. It is the perpetrators of that wrongdoing, the twelve individuals listed above (along with any others whose misconduct may have slipped by unnoticed), who are responsible for the consequence the law demands. Their abuse of the public trust, their willful disregard for the law, their willingness to let the ends justify the means have brought us here.
This case is not about the subject matter of the petitions. The merits (or lack thereof) of medical marijuana are not on trial. This case is about the evidence, staggering in its scope, that reveals the unprecedented degree of blatant wrongdoing engaged in by NMM, the Sponsors, and those under the Sponsors’ direction and control as they undertook the campaign. The majority—nearly all—of that evidence presented by the Secretary sits before the Court entirely uncontradicted. The Sponsors had the opportunity to present countervailing evidence. They could have called co-Sponsors Adam Morfeld and Anna Wishart to rebut the evidence suggesting that NMM’s campaign was built on a foundation of tolerating, encouraging, and engaging in fraud, malfeasance, and other wrongdoing. The decision not to do so is telling. The Sponsors put forth no affirmative evidence that they conducted a clean campaign because that evidence does not exist. It does not exist because that is not the campaign that was run. In light of the breadth and scope of the fraud, malfeasance, and other intentional wrongful conduct before the Court, only one remedy is appropriate. This Court should issue the declaration sought by the Secretary: That an insufficient number of genuine signatures have been submitted in support of these petitions. That declaration would render both initiatives legally insufficient, which, in turn, would require the results of the election (as to these petitions) be declared void. Duggan v. Beermann, 245 Neb. 907, 916 (1994). In the alternative, the Court should hold that the Secretary has met the burden of production set forth in Barkley v. Pool. 103 Neb. 629, 173 N.W. 600 (1919). Having put forth substantial evidence of fraud, malfeasance, and other wrongdoing, the presumption of validity that normally attaches to submitted signatures is lost and the burden flips to the Sponsors to “affirmatively prove[]” that the tainted signatures they have submitted are genuine. Id. at 600 (syllabus by the Court).
Here, given the magnitude of the fraud and malfeasance involved, any effort to rehabilitate would almost certainly be futile. That said, the Secretary acknowledges that Pool suggests (and this Court’s bifurcation order contemplates) affording the Sponsors the opportunity to try. At bottom, the Secretary urges this Court to act to protect the integrity of the petition process. The right of initiative is precious. The wrongdoing engaged in here threatens that right. Nebraskans deserve to have confidence that any initiative that appears on the general election ballot obtained its place in compliance with the law. Because of NMM’s pervasive wrongdoing, that confidence is absent here. This Court should act to restore what has been lost. Issuing the declaration requested by the Secretary will accomplish that worthy goal.
Original source can be found here.