Signed petitions rest in stacks sorted by county.

LINCOLN, Neb. – The 8th U.S. Circuit Court of Appeals released a decision today in an ongoing legal challenge to a requirement that petitioners must collect a certain number of signatures from 38 Nebraska counties to qualify for the statewide ballot. It reverses an earlier district court decision that found the requirement was likely unconstitutional.

The American Civil Liberties Union (ACLU) of Nebraska filed the lawsuit on behalf of Nebraskans for Medical Marijuana and Omahan Crista Eggers in May, arguing that the requirement violates the U.S. Constitution’s 14th Amendment because the current system gives voters drastically different power based on their county population. For example, a single Douglas County voter has less than a thousandth of the power of an Arthur County voter in determining whether their county meets its signature threshold.

A district court judge granted a preliminary injunction blocking enforcement of the requirement in June, which was followed by the 8th Circuit issuing a stayin July.

In today’s decision, U.S. Circuit Judge Raymond Gruender and U.S. Circuit Judge David Stras wrote that the lawsuit’s equal protection argument does not extend to state ballot initiative processes. The order included a dissenting opinion from U.S. Circuit Judge Jane Kelly that took issue with the other judges’ findings, noting “if the right to vote is fundamental, I see no reason why it should not apply equally to the initiative process at the heart of Nebraska’s electoral and legislative system.” 

Jane Seu, an ACLU of Nebraska attorney, issued the following statement in response to today’s order.

“We respectfully disagree with the majority opinion that voters are only guaranteed equal say when we vote, not when we determine what we should be voting on. As the dissenting opinion recognizes, the ability to petition our government for change is foundational to our democracy. Candidly, the majority opinion’s flat dismissal of a constitutional safeguard in Nebraska’s petition process is troubling. For now, we will be taking time to carefully read through the decision and discuss our options. We are not giving up.”