LINCOLN, Neb. – Today, the American Civil Liberties Union (ACLU) of Nebraska and Nebraskans for Medical Marijuana (NMM) filed a federal civil rights lawsuit challenging Nebraska’s requirement that a ballot initiative or referendum needs signatures from 5% of registered voters in 38 counties to qualify for placement on a statewide ballot.
The ACLU of Nebraska and NMM are requesting a judicial decision on the constitutionality of the law and a court order to preliminarily suspend the requirement before July 7, the deadline for petitioners to submit collected signatures.
In Nebraska, people who want to add, change or repeal laws can do so by collecting a certain amount of signatures in support of such change. The required amount varies based on whether it’s a constitutional amendment, initiative or referendum. Petitioners must also meet a geographical requirement — without 5% of registered voters in at least 38 counties represented, the question won’t make it on the ballot. The new lawsuit argues this multicounty distribution requirement is an unconstitutional roadblock that violates the U.S. Constitution’s First and 14th Amendments.
The lawsuit states that current law treats ballot signatures as unequal based on geography, violating the principle of one person, one vote that’s protected under the 14th Amendment. Although each voter has equal say under the total vote count requirement, a voter in a high population county has significantly less power when it comes to meeting the multicounty distribution requirement. For example, a single voter in Arthur County has about as much power as 1,216 Douglas County voters when it comes to influencing whether their respective counties will meet the signature threshold.
The lawsuit also raises a First Amendment claim that focuses on the extra burdens of cost and complexity that the county requirement puts on campaigns, saying that the requirement infringes on the First Amendment right to free political speech.
Crista Eggers, plaintiff and statewide campaign coordinator for NMM, said the county requirement is hurting efforts to get a winning issue on the ballot.
“This unconstitutional roadblock makes it so prohibitive for Nebraskans without massive bank accounts to change our laws, even on incredibly popular issues like bringing access to medical cannabis to people who are suffering in Nebraska. It also impacts rural engagement by forcing grassroots campaigns like ours to move resources out of a community as soon as a specific threshold is reached instead of continuing efforts to collect signatures and build support. We have a real shot at qualifying. I am hopeful this case will remove a barrier to Nebraskans’ constitutional right to petition their government and help us put the issue to voters.”
Nebraska State Senator Adam Morfeld, campaign co-chair of NMM, said the case involves all Nebraskans’ rights, not just the campaign.
“One of the most important rights in our Constitution is the right of Nebraskans to petition our government and change laws by the vote of the people. The current county qualification requirement is clearly an unconstitutional roadblock to that sacred right that silences the will of the people.”
Today’s filing comes more than 50 years after the U.S. Supreme Court determined a similar Illinois multicounty distribution requirement for ballot qualification violated residents’ rights. Courts have struck down these requirements in other states, including Idaho, Utah and Wyoming. A Federal District Court Judge ruled Nebraska’s requirement was unconstitutional in 2014, but the U.S. Court of Appeals for the Eight Circuit later overturned the decision on a procedural matter without ruling on the merits of the case.
Daniel Gutman, a contract attorney for the ACLU of Nebraska, said Nebraskans have a right to a more democratic process.
“Nebraskans have a right to an unencumbered petition process. States can require that petitions must have support from certain geographic areas, but the Constitution is clear that it has to be done in a way in which everyone has equal say. The current system violates Nebraskans’ rights and hurts everyone by making it harder for Nebraskans to engage in direct democracy. This case is about not just our clients, but all Nebraskans who remain Nebraska’s second legislative house. ”
NMM is collecting signatures for two complementary petitions. The campaign has collected more than 50,000 signatures total and needs roughly 87,000 signatures per petition by July 7 to qualify for the ballot.
NMM’s leaders are asking supporters to continue to volunteer and collect signatures across the state while the case proceeds. So far, the campaign has reached the 5% threshold in four of the required 38 counties.