(Picture credit Matt Johnson)
One day after it put Lincoln charter amendments on the November ballot, the Nebraska Supreme Court sided with Secretary of State Bob Evnen to keep Protect Nebraska Voters’ Initiative and Referendum Powers off the ballot.
Since a 1998 amendment, the Nebraska Constitution has stated that initiatives may only address a single subject, defined as the “primary purpose” by Nebraska courts. To test whether that purpose is too broadly construed, Nebraska courts apply a “necessary and natural connection” test between the distinct provisions in an initiative. This is to prevent “logrolling,” wherein a popular provision with little to no relation to an initiative is added to increase its chances of passing.
The Protect Nebraska Voters’ Initiative and Referendum Powers petition, the product of Respect Nebraska Voters, sought to restrict the Unicameral’s ability to modify the ballot initiative process, and would also have affected the body’s power to legislate on certain issues once initiatives had been passed. It garnered 186,000 signatures.
Enven argued that this was a restriction on both the regulatory and plenary power of the Legislature, deciding in favor of a single subject complaint from the law firm La Grone Slama on behalf of Democratic State Senator Machala Cavanaugh and former GOP state senator Curt Freisen. Former state attorney general Don Stenberg had similarly had argued similarly in February.
The court agreed with Enven’s ruling in an unsigned 6-1 decision.
“The Initiative would not only strengthen the requirement of a Legislative supermajority necessary to ‘amend, repeal, modify, or impair a law,’ it would fundamentally change the balance of legislative powers between the people, through the reserved powers, and the Legislature,” the court stated.
Installing a supermajority threshold to modify initiative-enacted laws, it found, was not necessarily and naturally connected with installing a supermajority threshold to modify the initiative process, let alone a requirement that such modifications pass strict scrutiny.
“By doing so, the Initiative injects the judicial branch into matters of legislative policy,” the court said. “Although a strict scrutiny review would restrict the Legislature’s ability to alter a law affecting the initiative or referendum process, it has no connection to protecting initiative-enacted law.”
Justice Jonathan Papik was the sole dissenting vote, arguing the state was yet to clearly define the point at which a single subject becomes “too general,” and its prior rulings had allowed for purposes no broader than this one when determining single subject complaints against bills from the legislature. He stated that the tests ought to be consistent between Unicameral and initiative – and thus, he dissented.
“The relevant question is not whether a measure ‘does two things’; it is whether those ‘things’ are sufficiently related to each other as to fall under a single subject… and I do not perceive a single subject problem,” he concluded.
Respect Nebraska Voters said they were deeply disappointed with the court’s ruling.
“In the face of increased and sustained attacks on the initiative process and the undermining of both voter-passed legislation and the process itself, this issue is more critical than ever,” they said on Thursday afternoon.
Respect Nebraska Voters committed to continuing their work to “ensure that community voices are heard and respected by lawmakers,” but did not say whether that may entail bringing a new or similar initiative in the coming years.
— Lewis Thune is a College Fix writing fellow with The Plains Sentinel.