Nebraska could see a spike in its number of initiative petition drives as a result of a Monday order by a federal judge in Omaha.
The order, signed by Senior U.S. District Judge Joseph F. Bataillon, does away with the requirement that petitions be signed by at least 5 percent of the registered voters in 38 of the state's 93 counties.
It could put more issues on the ballot that haven't found success in the Legislature but that are supported by chunks of the state's voters — such as Medicaid expansion.
"This will make that simpler," said attorney Dave Domina, who challenged the rule on behalf of Kent Bernbeck of Omaha.
The decision will allow petition circulators to focus their efforts on the state's most populous areas, where they can get more bang for their buck, or wherever they might find more widespread support.
In the future, to place an initiative or referendum on the ballot by petition, circulators will need only obtain signatures from an overall percentage of the state's voters: 5 percent for a referendum to repeal a law, 7 percent for an initiative to propose a law and 10 percent for a constitutional amendment.
"The geographic component is stricken," Domina said.
Secretary of State John Gale is named as defendant in the lawsuit. His spokeswoman declined to comment and said Gale's office was still reviewing the case with the state attorney general's office.
The county rule is written into the state constitution, meaning Bataillon found a portion of the Nebraska State Constitution to be in violation of the Equal Protection and Due Process clauses of the U.S. Constitution.
In effect, it placed more weight on signatures from voters in some counties than those from voters in other counties, said Domina, who ran unsuccessfully for U.S. Senate this year.
About 16,000 signatures would be required to meet the 5 percent requirement in Douglas County, the state's most populous county. In Arthur County — which had just 325 registered voters as of April, according to Gale's office — 17 signatures would be needed.
Based on Domina's logic, that means a signature in Arthur County was worth close to 1,000 times more than one in Douglas County.
"The math makes clear the inequality and disproportionality that renders the state constitutional provision invalid," Domina said in a news release.
The law does not affect petition candidates for statewide offices, who are required to obtain at least 750 signatures in each of the state’s congressional districts, which are evenly weighted by population.
Attorneys for Gale's office countered that the success of initiative petition drives during recent years shows the county requirement is constitutional.
Since Nebraska enabled statewide initiatives and referendums in 1912, 48 petition initiatives have appeared on the ballot, along with a handful of referendums, according to Gale's office and the Initiative & Referendum Institute at the University of Southern California.
Those measures pass less often than they fail, but the most recent initiative — to increase Nebraska's minimum wage to $9 an hour by 2016 — was supported by more than 59 percent of voters in last week's election.
That initiative was supported by a seven-figure campaign organized by a pair of state senators who had attempted to raise the minimum wage through an act of the Legislature earlier in the year.
Since the ballot measure passed, said state Sen. Danielle Conrad, "I’ve heard all kinds of rumblings from folks" about other possible petition initiatives.
Conrad, the minimum wage campaign director, said even without the county requirement for petitions, it "would be sage advice for any campaign to go above and beyond" what is required under state law to qualify for the ballot.
"I think the geographical component is important because it ensures balance overall," Conrad said. Plus, it provides a “baseline for support in the general election campaign.
"I think that what matters most is the issue and whether or not it enjoys broad support among the citizenry.”
Bernbeck, the plaintiff in the petition lawsuit, has been very interested in the initiative process, Domina said. Bernbeck tried to eliminate the county requirement by petition but found the process "to be prohibitively expensive."
“I really think that it’s very important that citizens be able to make laws when their legislature lets them down," Domina said. "And they need to be able to correct things when their legislatures go overboard.”