Fate of two ballot initiatives may be decided by Nebraska Supreme Court

The fate of two ballot initiatives could be decided by the Nebraska Supreme Court after challenges were filed directly with the high court on Monday.

Sponsors of the Respect Nebraska Voters initiative sued Secretary of State Bob Evnen after he announced Monday morning that he would not certify the petition after finding it violated Nebraska’s single-subject rule. A voter separately sued Evnen to challenge the certification of the Fairness for Girls petition effort, alleging the object statement provided on the petition was insufficient.

The Nebraska Supreme Court has not yet indicated whether it will accept the cases. The final deadline to certify petitions for the November ballot is Sept. 11.

The Fairness for Girls petition initiative was certified on Aug. 28 after Evnen announced it had gathered enough signatures for ballot access. The initiative seeks to amend the Nebraska constitution to require schools to expressly designate sports teams based on biological sex. Athletic teams or sports designated for "females, women, or girls" would "not be open to students of the male sex" under the proposed amendment, though there is no similar language for students of the female sex.

The object statement listed on the petition reads: “The object of this petition is to amend the Nebraska Constitution to establish constitutional protections for sex-separate athletics to ensure equal access to athletic opportunities for females.”

Under Nebraska law, the object statement provided by petition sponsors must be “a concise statement… of the legal effect of the filing of the petition and the object sought to be secured by submitting the measure to the voters.”

In the lawsuit, Nebraska voter Cara Ullman said the object statement was vague because it “does not inform voters that the Initiative applies to public schools, colleges, and universities, as well as private schools, colleges, and universities that compete athletically against public schools.”

Ullman herself signed the petition “because she was not informed of the true contents of the proposed law,” the lawsuit said. She later “took steps to remove her name” from the petition. The lawsuit seeks an order to force Evnen to deny the certification of the petition and withhold it from the November ballot.

Respect Nebraska Voters challenge

The Respect Nebraska Voters initiative seeks to make it more difficult for the Legislature to modify voter-approved laws. It would amend the state constitution to raise the vote threshold required for lawmakers to change or repeal voter passed laws from two-thirds to four-fifths of the 49-member body. It would also require a four-fifths majority to pass any new legislation impacting the initiative process.

Evnen announced Monday that the Respect Nebraska Voters initiative violated the single-subject rule and would not be included on the November ballot. Petition sponsors Al Davis, Dawn Essink and JoVanora Galbreath filed the lawsuit in response.

That decision came about a week after two lawmakers – current State Sen. Machaela Cavanaugh, a Democrat, and former State Sen. Curt Friesen, a Republican – submitted an objection claiming that the initiative violates a Nebraska law requiring ballot initiatives to address only one subject. Other Nebraska ballot initiatives have been thrown out in the past for violating the single-subject requirement.

Petition sponsors disagree with the objection and Evnen’s decision. They are seeking a court order reversing Evnen’s decision and ordering him to place the measure on the November ballot.

“The Initiative contains a single subject and meets all applicable constitutional and statutory requirements to place an initiative measure on the ballot,” the lawsuit said.

If the Nebraska Supreme Court decides to take up either case, it will first issue an order called an “alternative writ of mandamus,” which would require Evnen to either do what the petitioners ask or explain why he will not do so. A briefing schedule would then likely follow.