Nebraska Supreme Court to consider single-subject objection to Respect Nebraska Voters initiative

The Nebraska Supreme Court agreed Tuesday to take up a challenge to Secretary of State Bob Evnen’s decision not to place a proposed constitutional amendment curtailing the Legislature's power to amend voter-enacted laws on the ballot.

Also on Tuesday, the state’s high court declined to consider a separate challenge brought by a voter against the Fairness for Girls initiative, which Evnen announced last week had gathered enough signatures for ballot access.

Sponsors of the Respect Nebraska Voters initiative, which aims to make it more difficult for the Legislature to repeal or change voter-enacted laws, filed a lawsuit against Evnen on Monday 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 lawsuit was filed directly with the state’s high court, and on Tuesday, Chief Justice Jeffrey Funke issued an order directing Evnen to either certify the initiative or file a response explaining why he would not do so by noon Tuesday.

The proposed amendment would make changes to 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.”

Two lawmakers – former Republican State Sen. Curt Friesen and current Democratic State Sen. Machaela Cavanaugh – submitted an objection to Evnen last week, claiming the Respect Nebraska Voters effort violated the single-subject requirement for initiatives. On Monday, Evnen agreed, and said he would not certify the initiative despite it being expected to meet the 110% signature threshold.

In a letter released Tuesday, Evnen explained his reasoning and said that the initiative addressed at least three separate subjects because it would regulate the initiative power, the referendum power and the legislative process.

Read Evnen’s letter

Taking a wider view and defining a “subject” as “an initiative’s aim or purpose,” Evnen still found that it contained at least two subjects – and even though the subjects are “potentially related,” he said, they are “fundamentally different.”

“The initiative’s two subjects or purposes are not naturally and necessarily connected,” Evnen wrote. “They amend separate parts of the constitution and follow two completely divergent subjects: One subject applies only to initiatives and restrains only the Legislature’s ability to amend/repeal initiative-enacted laws. The other subject applies both to initiatives and referendums. It restrains the Legislature’s ability to operate against both and its ability to amend/repeal its own laws dealing with both.”

Evnen said this case “closely resembles” another single-subject challenge from 2020, which aimed to legalize, regulate and provide legal protections for users of medical marijuana. In that case, Evnen did not find that the initiative violated the single-subject rule – but on appeal, a divided Nebraska Supreme Court did.

In the medical marijuana case, the Supreme Court outlined the process for establishing if a voter initiative meets the single-subject requirement. First, the “general subject” of the initiative must be identified. That subject cannot be “too broad” and “must be characterized at a level of specificity that allows for meaningful review of the natural and necessary connection between it and the initiative’s other purposes.” Any “secondary purpose” must be “naturally and necessarily connected” to the general subject.

Respect Nebraska Voters said in a statement after Evnen’s decision that the language was “carefully drafted and thoroughly reviewed to conform to single subject constitutional requirements and precedents.” The group said it was “confident” that the initiative will be on the November ballot.

The final deadline to certify the initiative is Sept. 11.