Nebraska Supreme Court rejects challenge to remove private school scholarship referendum from ballot

The Nebraska Supreme Court rejected a lawsuit to remove a partial referendum seeking to repeal a private school scholarship program from November’s ballot.

In its opinion, the court said the bill at the heart of the referendum, LB1402, is not an appropriation and does not meet an exception for referendums placed in state statute.

NE Supreme Court Opinion on Private Education Referendum

“The second power reserved is the referendum which may be invoked, by petition, against any act or part of an act of the Legislature, except those making appropriations for the expense of the state government or a state institution existing at the time of the passage of such act.," the statute states.

The court stated LB1402 is not an appropriation because it does not specifically tell the government to set aside the money. A separate bill is required to appropriate the money, which was LB1402A that was not the subject of the referendum.

“Instead, as is plainly apparent from the face of the verified petition and the attachments thereto, it was LB1402A—an act against which the power of referendum has not been invoked—that contained the necessary language and made the specific appropriation to carry out the provisions of LB1402,” the court wrote.

Chief Justice Michael Heavican issued a concurring opinion to address the Secretary of State’s opinion change this week that the referendum is unconstitutional.

Secretary of State Bob Evnen certified the petition on Sept. 5, but asked the court to direct him to remove the referendum from the ballot because he now believes it is unconstitutional. Heavican wrote that there is no process to decertify an initiative from the ballot.

“The Secretary concedes that he made a determination that the referendum was valid and sufficient and ‘met legal sufficiency requirements,’ ” Heavican wrote. “Once done, I am aware of no process by which the Secretary can change his mind and ‘rescind his legal sufficiency determination and not place the referendum on the ballot.’”

The Secretary of State verified over 68,000 signatures from at least 5% of voters in 60 counties. Support Our Schools Nebraska released a statement supporting the decision.

“We thank the state Supreme Court for protecting one of the most important rights we have as Nebraska citizens – the right to petition our government for the redress of grievances,” Jenni Benson with Support Our Schools Nebraska said.

The Nebraska Catholic Conference expressed disappointment with the opinion. Tom Venzor, executive director of the Nebraska Catholic Conference, said in a statement that this decision hurts families.

"As always, the Nebraska Catholic Conference stands at the ready to advance school choice programs for our low-income families and other families in need," Venzor said.

The Secretary of State must certify the ballot by Friday, Sept. 13.