15 states back Nebraska AG’s effort to protect petition process from federal courts

OMAHA, Nebraska — Attorneys general from 15 conservative-led states filed a brief this week backing Nebraska’s legal fight to save a state constitutional requirement that people petitioning a measure onto the ballot must gather signatures from much of the state.

The brief was filed in a federal civil rights lawsuit brought May 16 by Nebraskans for Medical Marijuana and ACLU Nebraska against Secretary of State Bob Evnen, arguing that the state’s geographic requirement dilutes the “one man, one vote” value of signatures of urban Nebraskans by giving more weight to signatures from rural Nebraskans.

The 15 states argue that federal judges have a limited role in reviewing “state-created systems” governing elections. States make similar arguments to defend gerrymandering, the ability of states to draw political boundaries to political advantage.

The states in the brief argue that Nebraska’s requirement can be met legally. The brief questions whether a lower court had the legal right to enjoin the requirement without showing practical difficulties that the requirement created for the initiative process.

“The Constitution protects the right to vote for one’s representatives in the republican form of government it guarantees,” the attorneys general wrote. “It does not regulate an entirely state-created right to direct democracy via ballot measures.”

The Nebraska Constitution requires people circulating petitions for ballot initiatives to gather signatures from 5% of registered voters in 38 of the state’s 93 counties. A state appeal restored the requirement while the federal lawsuit against it progresses.

“No matter what county we live in, our signatures on a petition should carry equal weight,” ACLU Nebraska attorney Jane Seu said. “Nothing in this new amicus brief offers a compelling argument as to why Nebraskans should continue to be deprived of equal power.”

The states backing Nebraska’s case are Arkansas, Alabama, Alaska, Florida, Idaho, Indiana, Louisiana, Missouri, Montana, North Dakota, Ohio, Oklahoma, South Carolina, Utah and West Virginia.

Nebraska Attorney General Doug Peterson said the brief from other states “demonstrates that the district court’s decision threatens to give federal courts the power to micromanage states’ initiative processes.”

“We appreciate their efforts to bring these concerns to the Eighth Circuit’s attention,” Peterson said.

State Sen. Adam Morfeld of Lincoln, co-chair of the effort to let voters choose whether to legalize medical marijuana, described the other states’ brief as “an unprecedented attack” on “Nebraskans’ right to have a constitutional ballot initiative process.”

“We won’t be intimidated and we will not back down,” he said.

The petition group turned in 93,000 and 91,000 signatures July 7 for two ballot initiatives needed to legalize medical marijuana. About 87,000 valid signatures are needed.

The Nebraska Secretary of State’s Office said Thursday it expects to finish verifying the petition signatures in August.

New briefs are due soon in the appeal of an 8th U.S. Circuit Court of Appeals ruling to pause or stay the temporary injunction that a lower court granted against the state’s geographic requirement.

Nebraska Examiner is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Nebraska Examiner maintains editorial independence. Contact Editor Cate Folsom for questions: [email protected]. Follow Nebraska Examiner on Facebook and Twitter.

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