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Tens of thousands of Nebraskans have already cast their vote for or against a pair of initiatives to legalize and regulate medical marijuana in the state ahead of the Nov. 5 election.

On Tuesday, arguments for whether those votes on Initiatives 437 and 438 should be counted got underway in Lancaster County District Court on the first day of a civil trial expected to conclude by the end of the week.

A former state senator and Nebraska's chief election officer asked Judge Susan Strong to rule the initiatives circulated by Nebraskans for Medical Marijuana "legally insufficient," despite Secretary of State Bob Evnen having certified both in September.

"We are asking the court to press pause and enforce the rules before rushing to tabulate and certify the results," said Anne Mackin, a Texas attorney representing former state Sen. John Kuehn in the lawsuit.

Lawyers representing the medical cannabis petitions, meanwhile, asked the court to give voters their say on the initiatives that met the requirements outlined in state law.

Kuehn, a former member of the State Board of Health and opponent to marijuana legalization, sued Evnen on Sept. 12 to prevent the petitions from being certified for the ballot, arguing he believed there would be enough fraudulent signatures to disqualify the initiatives.

The next day, Attorney General Mike Hilgers and Hall County Attorney Martin Klein filed felony charges against a Grand Island man who allegedly forged dozens of signatures onto petitions he circulated earlier this year.

Evnen certified the petitions that same day — Sept. 13 — while noting that further investigation could uncover enough invalid signatures that would allow a court to pull the measures from the ballot.

A week later, the secretary filed a cross-claim against Nebraskans for Medical Marijuana, which had successfully submitted some 86,500 signatures on each of its two ballots, citing evidence uncovered by Hilgers' investigation that could result in tens of thousands of signatures being invalidated.

Mackin said the results of the attorney general's investigation uncovered evidence of potential fraud and malfeasance at "a larger scale than my client ever could have imagined when initially filing this lawsuit."

She said a further review conducted by an Arizona attorney who specializes in political law also found "suspicious patterns" of behavior among circulators and notaries working or volunteering for Nebraskans for Medical Marijuana.

Deputy Solicitor General Zach Viglianco of the attorney general's office said Evnen joined the lawsuit to stop the votes for the medical marijuana initiatives from being counted in order to preserve the integrity of the petition process — the first right reserved to the citizens of Nebraska.

"When individuals cheat, when they flat out disregard those rules, they cannot be allowed to enact a new law that affects all Nebraskans," Viglianco said, telling Strong the state would show widespread fraud and malfeasance.

Viglianco said the state intends to call several petition circulators, notaries and a sponsor — campaign manager Crista Eggers — who he said would prove their case.

Sydney Hayes, an attorney for Nebraskans for Medical Marijuana, said Kuehn and Evnen's case relied upon blaming petition signers for errors made by circulators or notaries.

That has no precedent in Nebraska law, Hayes said. The North Dakota Supreme Court said two years ago there was no precedent to support invalidating signatures based on mistakes made by notaries or circulators, she also told the judge.

"This idea is also fundamentally contrary to the right of the initiative," Hayes said. "Everyone here has talked today about how precious the right of the initiative is to the people, that it must be preserved to the fullest tenable measure in both letter and spirit."

And instead of tens of thousands of signatures being affected, Hayes said an investigation had identified a few hundred that might have been directly impacted.

"They do not have direct evidence to get them to the point of invalidating 3,463 signatures," Hayes said.

Early testimony mostly technical

Much of Tuesday's testimony focused on the technical aspects behind both the petition process and the duties of notaries public, as well as how both Kuehn and Hilgers identified what they say is widespread fraud on Nebraskans for Medical Marijuana's petitions.

Wayne Bena, the deputy secretary of state who oversees the Election Division, said the potential fraud that originated in Hall County was brought to the state's attention in August.

Still, Bena said the secretary of state's office was confident in the work done by county election officials, who are charged with comparing the signatures on the petitions to a digital record that exists online.

Election workers also examine other data points, including birthdates and addresses, which allow them to verify signers if the name signed to the petition doesn't 100% reflect the name on file — what Bena referred to as the "two out of three rule."

The official charged with oversight of Nebraka's notaries public, David Wilson Jr., an associate general counsel and licensing director for the secretary of state's office, said the role of those individuals is important to ensuring documents and the people who sign them are authentic.

Phoebe Lurz, an attorney with the state, asked Wilson to walk through the process required for an incorrect notarization to be fixed — something Evnen and Kuehn's attorneys said was not done properly on many petitions submitted by Nebraskans for Medical Marijuana.

While notaries public are held to high standards and can have their licenses temporarily suspended or permanently revoked if they are found to have engaged in malfeasance or fraud, Wilson said that was uncommon.

Asked whether or not mistakes are always evidence of malfeasance, Wilson, who said there are only a handful of open complaints against notaries, said that wasn't the case.

"No, mistakes are not," he said.

Tuesday's witnesses also included Kory Langhofer, an attorney who led the legal team that challenged former President Donald Trump's 2020 loss in Arizona, as well as the state Senate's discredited audit of that election.

Langhofer, a co-founder of Signafide, which uses artificial intelligence to identify potential defects on initiative or referendum petitions, was hired by Kuehn to review medical marijuana petitions turned over by Evnen as part of the lawsuit.

Instead of a "wet finger in the air analysis" to determine if signatures match names and voter files, Langhofer said his proprietary software compares circulator names, notary names, notarization dates and other points to look for discrepancies.

The results are then checked by humans, he told the court over Zoom.

On the medical marijuana petitions, Langhofer said Signafide did not review the actual signatures of Nebraska voters but focused on the petitions that were circulated and notarized by specific individuals who have been accused of wrongdoing.

Langhofer said the analysis identified tens of thousands of signatures that could possibly be tainted by fraud or malfeasance.

His testimony was echoed by Jake Brennan, a certified fraud examiner with 10 years of experience in the attorney general’s office, who said he was tasked on Oct. 4 with reviewing more than 25,000 petition pages submitted and accepted by Evnen’s office.

“I was looking for anomalies, things that stood out as different than others,” Brennan said, adding he examined the signatures of circulators and notaries, as well as the notary’s stamps.

Viglianco, for nearly an hour Tuesday afternoon, asked Brennan to describe the irregularities he found on the petition pages, as well as how the team of attorneys and law clerks in the attorney general's office compiled them into a spreadsheet potentially implicating tens of thousands of signatures.

Brennan, who admitted he had not previously investigated notary fraud or malfeasance or potential irregularities on initiative petitions, said the team reviewed those documents manually and also used optical character recognition software.

When investigators identified what they believed were discrepancies in signatures, Brennan said those names were sent to a handwriting expert who will testify at trial later this week.

In all, investigators with the attorney general's office identified as many as 50,000 names on each of the two petitions they said could be invalidated.

The court recessed Tuesday before Brennan could face cross-examination from Nebraskans for Medical Marijuana's legal team.

The trial will resume Thursday morning in Lancaster County District Court.