Nebraska’s requirement that ballot initiatives receive support from 5% of voters in 38 of the state’s 93 counties will remain in place after the Eighth Circuit Court of Appeals reversed a lower court’s decision on Wednesday.
The decision stems from a lawsuit filed by Nebraskans for Medical Marijuana arguing the multicounty requirement violated the Equal Protection Clause of the 14th Amendment because it diluted the voting power of individuals in the state’s most populous counties.
In its lawsuit, filed by the ACLU of Nebraska, Nebraskans for Medical Marijuana said a single person in Arthur County had the same voting power as nearly 1,000 residents of Douglas County when it came to qualifying petitions for the ballot.
Two of the three judges who considered the appeal — Judges Raymond Gruender of St. Louis and David Stras of Minneapolis — rejected that argument, however, writing that the Equal Protection Clause did not apply to rights granted by states.
“No right can qualify as ‘fundamental’ for purposes of equal-protection analysis unless it is guaranteed by the U.S. Constitution,” the majority wrote. “And we have repeatedly stated that the right to place initiatives on the state ballot ‘is not a right guaranteed by the United States Constitution, but is a right created by state law.’”
Because Nebraska’s requirement for petitions to find support across two-fifths of counties did not restrict a fundamental right, according to Gruender and Stras, Nebraskans for Medical Marijuana’s claim that its rights had been violated would not survive scrutiny.
The appeals court sided with Secretary of State Bob Evnen, writing the multicounty requirement serves a “legitimate interest” for the state by limiting initiatives that appear on the ballot to “those with a reasonable chance of success.”
That provides clear guidance for circulators; prevents initiatives with a small, concentrated base of support from overcrowding a ballot; and allows the state to efficiently manage its elections; they wrote.
“Whether the distribution clause in article III, section 2 of the Nebraska constitution is the best solution to this problem is not for us to decide,” Gruender and Stras wrote. “What matters is that it is at least a rational solution.”
The ruling reverses a temporary injunction put in place by U.S. District Judge John Gerrard, who sided with Nebraskans for Medical Marijuana campaign coordinator Crista Eggers over Evnen in June, finding the requirement was unconstitutional.
Appeals Court Judge Jane Kelly of Cedar Rapids, Iowa, said she did not find fault with Gerrard’s decision and disagreed with the majority’s view that the multicounty requirement did not violate the constitutional rights of petition circulators, saying the answer in case law “is not so clear-cut.”
One of the cases used by the court said that the ballot initiative was not guaranteed by the U.S. Constitution, Kelly wrote, but “certain rules and requirements related to the (initiative) process may nevertheless implicate the Federal Constitution.”
Kelly pointed to Moore v. Ogilvie, a 1969 case that found an Illinois rule requiring candidates to gather signatures from a certain number of counties was found to discriminate against residents of the most populous counties. That case was later reaffirmed in 1979.
While the challenge to Nebraska’s multicounty requirement was related to a ballot initiative and not qualifying a candidate, Kelly said it was similar to the “integral part of the election process” as discussed in the Moore case.
“When access to the ballot is circumscribed by a discriminatory rule, the right of voters to express their political preferences is damaged,” she wrote, adding other states have also applied the Moore case to their state initiative requirements.
Kelly also noted that the U.S. Supreme Court “has not expressly limited the ‘right to vote’ in the way” the appeals court did in its decision Wednesday and will hear an argument in the upcoming term concerning the state’s regulation of elections.
She said in the meantime, there was little evidence that preventing the multicounty requirement from being enforced would place a hardship on Evnen’s office.
“(A)ny harm to the Secretary in having to accept a petition that satisfies all conditions but the signature distribution requirement is minimal,” Kelly wrote. “Overall, the factors strongly support the district court’s ruling.”
In a statement Wednesday, Jane Seu of ACLU of Nebraska, who represented Nebraskans for Medical Marijuana, said the majority’s “dismissal of a constitutional safeguard in Nebraska’s petition process is troubling.”
“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,” Seu said. “As the dissenting opinion recognizes, the ability to petition our government for change is foundational to our democracy.”
The ACLU said it was continuing to study the decision and discuss its options: “We are not giving up.”
Neither of the two petitions circulated by Nebraskans for Medical Marijuana — the first to protect doctors and patients, and the second to protect suppliers and distributors of medical cannabis — met the raw number of signatures needed to qualify for the ballot.
Last week, Evnen said the pair of petitions also did not qualify the requisite number of counties as required under the state constitution, but agreed to review the petitions circulated.