A lawyer representing opponents of a ballot question asking voters to cap payday loan rates told a judge more time is needed to investigate how many signatures on the petition drive were from voters who didn't know what they were signing.
Attorneys representing Secretary of State Bob Evnen and the sponsors of the petition drive — Nebraskans for Responsible Lending — said the deadline for removing signatures from the petition drive had passed and that the claims by Brian Chaney of "fraud or misbehavior" against circulators were unfounded.
The challenge to the measure lowering the cap on payday loan rates from 400% to 36% — the third filed to stop the initiative from going before voters on Nov. 3 — comes days before Friday's deadline for certifying ballots for the general election.
In the lawsuit, Chaney, who worked in the payday loan industry, alleged circulators did not read the petition's object statement to registered voters in at least 10 counties, leading at least 188 people to sign it without understanding the initiative's goals.
Those individuals, after learning more about what the measure would do, later filed sworn and notarized affidavits requesting their signatures be removed from the petition.
Doing so would mean Nebraskans for Responsible Lending failed to obtain 5% of the registered signatures in the requisite 38 counties across the state, Chaney's attorney, Scott Lautenbaugh, told Lancaster County District Court Judge Robert B. Otte on Tuesday.
"Whatever the circulator said must not have been in any way a fair summary," Lautenbaugh said. "If the statement that is printed on the petition changes minds, then they could not have been given a reasonable summary of what it does."
Lautenbaugh said the hundreds of people willing to swear they were not informed about what it was they were signing indicated "a pattern of fraud or misbehavior" on the part of circulators, adding many more — potentially thousands — of voters could be affected.
He asked the court to issue a temporary injunction preventing Evnen from including the measure on this fall's ballot so that a more thorough investigation could be done.
But attorneys representing Evnen and the sponsors of the ballot initiative — former state Sen. Al Davis, Thomas Wagoner, and the Rev. Damian Zuerlein — said the request to remove names from the petition came after the legal deadline for doing so.
Ryan Post, an assistant attorney general representing Evnen in his capacity as secretary of state, said the deadline imposed by state statute requires requests for signatures to be removed to be submitted before the petition is turned into the state's top election leader.
And even if the court agreed to strike the 188 names submitted with Chaney's lawsuit from the petition drive, Post added, there are tens of thousands of signatures submitted by Nebraskans for Responsible Lending waiting to be verified.
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State statute allows the secretary of state's office to stop counting once 110% of the needed signatures are verified. In the payday lending ballot initiative's case, the secretary of state stopped counting after more than 95,000 signatures were verified of the roughly 120,000 submitted.
"There are a number of counties in dispute where there are outstanding signatures out there that could be counted," Post said.
Mark Laughlin, an Omaha attorney who represents the petition drive's lead sponsors, said case law from a 2008 legal challenge to a ballot initiative states circulators aren't required to read "in full, word-for-word" the object statement, as the affidavits included in Chaney's lawsuit seemed to imply.
"The circulator did not read to me the statement regarding the object of the petition that I now know was printed on the petition page," reads one of the items on the 188 uniform affidavits submitted to the court. "I did not see the object statement before signing."
"They've alleged that the entire object clause wasn't read, and there's absolutely no legal requirement that that's the case," Laughlin said, who added there was also no particular charge of fraud outlined in the lawsuit.
Lautenbaugh countered that those who signed the affidavits to remove their name had signaled they were not given a comprehensive summary of the object statement, or were misled entirely.
But Laughlin also said multiple people who had initially signed the petition and later filed an affidavit to withdraw their name have once again changed their position.
He said that raised questions about how opponents to the payday lending ballot initiative obtained the affidavits from people who originally supported the measure, and said the court should have a chance to hear from those who went door-to-door finding people to remove their names before it rendered a judgment.
Otte said he'll have to weigh the credibility of the petition's circulators with the individuals who, months later, said they put their signature on something they did not remember signing or supporting.
He likened the matter to a waiter who records the payment at a restaurant only to be confronted by a customer months later that they didn't remember ordering what was on their receipt.
"The law presumes that somebody that signs something does so with the full knowledge of the content," Otte said before taking the case under advisement. "Tell me how I get over that presumption?"