Suit challenging petition goes to trial

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By LORI PILGER / Lincoln Journal Star

An initiative to ban affirmative action should not appear on the Nov. 4 ballot because petition circulators misled signers, opponents of the ban said during a trial that started Monday in Lancaster County District Court.

“At the core of all that, the very core is that the process should be devoid of fraud,” said attorney J.L. Spray, who represents University of Nebraska-Lincoln student Jeffrey Hall and 2008 UNL graduate Eva Sohl.

But those who favor the ban argue the proper way to handle petition circulation violations is to prosecute individual circulators, not  throw out thousands of signatures.

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Kathy Abbott (right) stands in front of the Lancaster Event Center and has Gary Brakhage sign a petition designed to end affirmative action and promote equal opportunity for everyone. (LJS File)

Kathy Abbott (right) stands in front of the Lancaster Event Center and has Gary Brakhage sign a petition designed to end affirmative action and promote equal opportunity for everyone. (LJS File)

“The plaintiff’s interpretation would defeat, not promote, the democratic process,” argued Don Stenberg, attorney for the Nebraska Civil Rights Initiative Committee.

Judge Karen Flowers has set aside two more days, and a third if necessary, to hear the lawsuit, which was filed last month by  Hall and Sohl and challenges the validity of thousands of petition signatures.

In Spray’s opening statement, he said opponents would prove petition circulators had a pattern of misleading signers.

Circulators in Nebraska must give signers a fair, complete statement of what the petition does. But, Spray said, there were examples of circulators who did not do that, despite swearing they did so on the forms.

“The act of not doing that is fraud because you’re not telling them what they’re signing,” Spray said.

He said he will focus on 12 or 15 specific circulators.

But he argued that the system itself, of circulators being paid per signature, is “in and of itself a pool for fraud to be created” — if not by the circulators, by the entire process.

What prevented it, he asked, then said, “From what I can tell nothing.”

Stenberg argued that the validity of 136,589 signatures was proven by an independent review of county elected officials.

“Despite that, the plaintiff asks you to strike over 24,000 valid signatures,” he said.

Supporters of the initiative to end race- and gender-based affirmative action in Nebraska needed 112,152 valid signatures to get the measure on the ballot.

If some circulators did violate laws, Stenberg argued, the proper remedy is not to disqualify otherwise valid signatures.

As for allegations that circulators sometimes left petitions unattended, he argued that that only violated the law if someone signed in a circulator’s absence and the circulator claimed to have witnessed the signature.

“That’s not the basis for disqualifying even one signature, let alone 24,000,” Stenberg said.

As for some signers not understanding what they were signing, he noted that even senators can sign off on laws that lead to unintended consequences — Nebraska’s Safe Haven law, for example — but that does not invalidate the law.

Citizen legislators should be held to the same standard, he argued.

Regardless, he said, “This court cannot read the minds of over 136,000 Nebraskans who validly signed the petitions.”

Dale Comer, assistant Nebraska Attorney General, representing Secretary of State John Gale in the suit, said he will leave issues of fraud to the other parties.

“Basically we just want to run a timely and fair election,” he said.

Following opening statements, Spray called Brigitte Eisenkeit of Scottsdale, Ariz., to the stand.

Eisenkeit, who was hired by anti-petition group Nebraskans United, testified that she saw some circulators in June and July in Omaha describe the petition as an equal rights initiative.

And none, she said, read the object clause to her.

Eisenkeit said one woman told her she’d give her a phone number to look into collecting signatures herself — if Eisenkeit would sign the petition. Then the circulator laughed.

Reach Lori Pilger at 473-7237 or lpilger@journalstar.com.