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Lincoln judge upholds law requiring appointment of election commissioners
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Lincoln judge upholds law requiring appointment of election commissioners

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A Lincoln judge has upheld the constitutionality of the law requiring election commissioners in Lancaster, Douglas and Sarpy counties to be appointed to their posts rather than elected, as they are in most other counties in Nebraska.

"The Court ... places great weight on the fact that for more than a century the Legislature, the executive officers, and the residents of counties with election commissioners have acquiesced in the appointment of election officials," Lancaster County District Judge Lori Maret wrote in a 14-page decision released Thursday.

The ruling ran counter to a nonbinding 2019 opinion by the Nebraska Attorney General's Office, which had called the law, which says the governor shall appoint election commissioners in counties of more than 100,000 people, "constitutionally suspect."

At the time, Civic Nebraska hailed the opinion for giving "citizens back their right to elect those who conduct elections in their counties," and Gov. Pete Ricketts said he would hold off on making appointments based on the guidance. 

Meanwhile, the Nebraska Association of County Officials expressed concern that a host of other county officials also could be required to be elected if the courts agreed with the interpretation.

The AG's office took the question to the Nebraska Supreme Court. But when the parties couldn't agree to stipulated facts, the case was dismissed and raised in Lancaster County District Court.

AG takes argument over appointed election commissioners to state's high court

In Thursday's decision, Maret said the issue was whether election commissioners and their chief deputies are county officers under Article 4 of the Nebraska Constitution. 

And, while the case deals specifically with election commissioners and their chief deputies, she said she must consider whether their interpretation would carry out the framers' intent. For instance, would they have intended for matrons at the county jail to be elected?

"The Attorney General does not acknowledge how broadly his position would sweep," Maret said.

She said the office cited Ohio case law to suggest "officers" generally should take an oath and give a bond, which might pare down the number of county workers who must be elected. 

"But the court is skeptical that these considerations would meaningfully refine the definition of 'officers,'" the judge said.

She said the Legislature could amend the statutes to no longer require an oath or bond for a county job. 

Appointment of election commissioners may be unconstitutional, Nebraska AG says

"In this way, a constitutional provision meant to empower the people to choose their county officers could leave them with nonelected officers performing the same job, now without oaths or bonds," Maret said.

Election commissioners have been appointed by the governor for more than 100 years, she said.

"This history is relevant not because it is how things have always been done, or even because it has worked well. Rather, this history is important under the well-established rule that legislative interpretation of a statutory or constitutional provision, long acquiesced in, is relevant to construing the meaning of doubtful constitutional provisions," the judge wrote.

Asked about the court ruling, state-Sen. Matt Hansen of Lincoln, who sought the initial Attorney General opinion, said he still agrees with the analysis by the Attorney General that our constitution requires these officials to be elected.

"I am interested to see what the next steps in this case will be, if any," he said in an email.

Hansen has introduced LB43, which would require election commissioners to be elected, intended as an option to solve this in the Legislature. But he said he doesn't plan on asking the committee to take any action on it until after the court process is finished.

Suzanne Gage, a spokeswoman for the Attorney General's Office, said: “Now that the district court has ruled, we will be asking the Nebraska Supreme Court to decide the constitutionality of the statute."

She said the Nebraska Constitution requires a supermajority of the Nebraska Supreme Court to agree before the court can strike down a statute as unconstitutional.

Lincoln judge hears arguments over whether election commissioners should be elected

Reach the writer at 402-473-7237 or

On Twitter @LJSpilger


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Public safety reporter

Lori Pilger is a Norfolk native and University of Nebraska-Lincoln graduate who has been a public safety reporter for the Journal Star since 2005.

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