Nebraska Supreme Court: Respect Nebraska Voters ballot measure violates single-subject rule, won’t appear on November ballot

The Nebraska Supreme Court on Thursday ruled against a ballot measure seeking to make it more difficult for the Legislature to change or repeal voter-enacted laws.

The court found that the ballot measure, known as the Respect Nebraska Voters initiative, violates the single-subject rule because it would limit the Legislature’s authority to regulate the initiative process itself in addition to raising the vote threshold for legislators to modify voter-enacted laws.

Sponsors of the initiative filed a lawsuit against Secretary of State Bob Evnen in late August after Evnen announced that the initiative would not appear on the November ballot because it contained more than one subject. Under the Nebraska Constitution, initiative measures “shall contain only one subject.”

The initiative sought to amend two sections of the Nebraska Constitution. Under Article III Section 2, the Legislature can “amend, repeal, modify, or impair a law enacted by the people by initiative” with a two-thirds majority of the 49-member body. The amendment would change that threshold to four-fifths of the Legislature.

Article III Section 4 would also see changes under the proposal. Currently, the Constitution establishes that the Legislature can enact legislation to “facilitate the operation” of voter-enacted initiatives and referendums.

The amendment would subject any legislation to “facilitate and safeguard” the initiative and referendum process to the four-fifths threshold, and would make invalid any legislation that “conditions, restricts, burdens or otherwise impairs” that process. Legislation would be valid “only to advance a compelling state interest achieved by the least restrictive means.”

In its single-subject analysis, the Nebraska Supreme Court agreed with Evnen that those changes constitute “at least two subjects.”

“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 wrote in its opinion.

In a statement, the Respect Nebraska Voters campaign said it was “deeply disappointed” in the ruling.

“The Respect Nebraska Voters campaign was born out of statewide frustration at recent attempts by lawmakers to weaken the ballot initiative process and dilute the voices of everyday Nebraska voters, seen most recently with the undercutting of the minimum wage increase and a rollback of earned paid sick leave that took coverage away from 140,000 hardworking Nebraskans,” the statement said.

One justice, Jonathan Papik, dissented from the majority opinion. He said the components of the initiative fall under a single subject: “The Legislature’s authority over the people’s reserved power to make laws.”

“I do not dispute that the initiative proposal before us amends the state constitution in more than one way,” Papik wrote. “It both makes it more difficult for the Legislature to amend statutes that have been passed by initiative and makes it more difficult for the Legislature to pass statutes that regulate the initiative and referendum process. But, as I understand our single subject law, 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.”

In this case, Papik said, the components of the Respect Nebraska Voters initiative are sufficiently related. He also said the court’s approach to reviewing single-subject challenges should be revisited.