The Nebraska Constitution firmly underscores the power of the people.
In language adopted in 1912, the Constitution states clearly that the public has direct power to decide statewide policies through ballot issues. Nebraskans over the decades have asserted that power more than 60 times.
Through the initiative power, voters can enact state statutes or add amendments to the Constitution. The public, using its referendum power, can overturn actions taken by the Legislature. The Constitution, in turn, places a steep obstacle if state senators try to reverse the public’s ballot-measure decisions: A two-thirds majority of the Legislature is required.
A series of federal court decisions has confirmed Nebraskans’ initiative power, and the State Supreme Court recently stated: “We have repeatedly said that the right of initiative is precious to the people and one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter.”
And yet, this year an unusual degree of confusion has arisen about the requirements for Nebraska ballot measures.
Secretary of State Robert Evnen, an attorney with deep experience, approved placement of a medical marijuana legalization on the November ballot and found that a casino legalization proposal fell short of requirements. But the Nebraska Supreme Court overturned those two decisions.
The court itself was badly split on the casino proposal, however, delivering a 4-3 decision. In the marijuana case, decided 5-2, the two dissenting judges expressed concern that the majority opinion threatened to undercut the people’s power to place initiative measures on the ballot.
True, the case law on Nebraska ballot initiatives is considerable, extending back decades. Those past decisions have set general parameters, and the individuals and organizations developing ballot proposals have an all-important responsibility to craft their ballot language carefully to fit within the requirements.
Still, the lack of common understanding on these matters this year between the Secretary of State’s Office and the Nebraska Supreme Court raises concern, not least since the court itself was divided on the proper interpretations.
Mounting ballot initiative campaigns is a tremendously expensive and complicated endeavor requiring far-ranging preparation and organizing. It’s clearly in the public interest for sponsoring organizations to have clarity up front on the specific requirements under law, so that their efforts aren’t short-circuited due to a faulty understanding of their obligations.
The point isn’t that ballot proposals deserve automatic support. On the contrary, rigorous debate is vital for any proposal put forward through citizen initiative, scrutinizing the details and long-term ramifications. Great care is needed, for example, whenever any addition is proposed to the state Constitution, given the difficulty in modifying any part of it.
All that said, the fact remains that the Constitution puts particular emphasis on people power. So it’s imperative that that authority be safeguarded and the state provide citizens with as much clarity as possible on the proper requirements.
The Legislature can help on that score by addressing this issue next year. “Encouraging a legislative review of the petition process is in order,” State Sen. Steve Lathrop of Omaha, chairman of the Judiciary Committee, told The World-Herald. The public “deserves clear guidance on how to exercise the first right reserved by the people in our state Constitution.”
Nebraska law stands out for the great prominence it gives to people power. The state must take responsible steps to provide needed clarity so Nebraskans can keep that power secure and functioning into the future.