COMMENTARY: A Petition with Too Many Subjects
by Don Stenberg
The new ballot petition “Protect Nebraskans’ Initiative and Referendum Powers,” which seeks to limit the Legislature’s ability to modify ballot initiatives, presents an important legal issue.
That issue is, does the petition have more than one subject, in violation of Article III, Section 2, of the Nebraska Constitution? In my opinion, the Nebraska Supreme Court would likely rule that it does have more than one subject and is therefore unconstitutional.
The petition contains two amendments to the Nebraska Constitution.
The first amendment is to Article III, Section 2. That amendment changes the number of votes required for the Legislature to amend or repeal a law enacted through the initiative process from 2/3 to 4/5 of all the members of the Legislature.
The second amendment in the petition is to a different section of the Nebraska Constitution – Article III, Section 4. This amendment applies to both initiative and referendum petitions (the first amendment only applies to initiative petitions).
The second amendment requires a vote of at least 4/5 of the Legislature to make any change in existing law that facilitates the operation of the initiative and referendum process, and requires that to be valid, such legislation must “advance a compelling state interest achieved by the least restrictive means.”
The legal test the Nebraska Supreme Court uses to determine whether proposed amendments to the Constitution have only one subject is the “natural and necessary” test.
The Nebraska Supreme Court explained this test in Planned Parenthood of the Heartland, Inc. vs. Hilgers, 317 Neb. 217, 229 (2024) as follows:
“Where the limits of a proposed law, having natural and necessary connection with each other, and, together, are part of one general subject, the proposal is a single and not a dual proposition… The controlling factors in this inquiry are the initiative’s singleness of purpose and the relationship of other details to its general subject. An initiative’s general subject is defined as its primary purpose.”
In my opinion, there are two primary purposes contained in the initiative petition. One purpose is to require the vote of 4/5 of the members of the Legislature to amend or repeal a law enacted by initiative. This is the amendment to Article III, Section 2 of the Nebraska Constitution.
The other primary purpose, found in Article III, section 4, is to make it extremely difficult for the Legislature to change any law (including those enacted by the Legislature itself) concerning the operation of the initiative and referendum process.
It can be argued, as the object of the petition states, that the purpose of both amendments is to “protect the people’s reserved initiative and referendum powers.” But the Nebraska Supreme Court will likely find that this alleged purpose is too broad a statement of the general subject.
As then Chief Justice Heavican stated in State ex rel. McNally vs. Evnen, 307 Neb. 103, 138 (2020): “courts cannot allow the general subject of a voter initiative measure to be defined at such a high level of abstraction that the primary purpose of the single subject requirement – logrolling – is frustrated.”
There are several factors that suggest there are at least two different subjects in the petition:
(1) The petition amends two different sections of the Constitution;
(2) One of the amendments applies only to initiatives, while the other amendment applies to both initiatives and referendums;
(3) A law enacted by initiative can be amended or repealed by the Legislature in any way with a 4/5 vote, but a law enacted by the Legislature concerning initiative and referendum procedures has an additional restriction that for any amendment, there must be a compelling state interest achieved by the least restrictive means.
(4) And finally, in order to achieve the object of making it more difficult for the Legislature to amend or repeal laws enacted by initiative, it is neither natural nor necessary to restrict the Legislature’s ability to amend laws enacted by the Legislature itself for the operation of the initiative and referendum process.
Taken together, these facts make a compelling case that the Protect Nebraskans’ Initiative and Referendum Powers petition contains at least two subjects, in violation of Article III, Section 2, of the Nebraska Constitution.
Former Nebraska Attorney General Don Stenberg is an honors graduate of Harvard Law School and the author of a Christian novel, Eavesdropping on Lucifer, available on Amazon.com.
