Appeals court, in split decision, reinstates requirement that initiative petitions must qualify in 38 counties

By: - August 31, 2022 1:33 pm

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LINCOLN — In a split decision, the 8th U.S. Circuit Court of Appeals has reinstated the requirement in Nebraska that initiative petition drives must collect signatures of at least 5% of registered voters in two-fifths of the state’s counties to qualify for the ballot.

The 2-1 decision on Wednesday came in a lawsuit brought by the ACLU of Nebraska on behalf of Nebraskans for Medical Marijuana. The lawsuit argued that the 38-county requirement gave too much power to the state’s less populated counties, diminishing the power of voters in heavily populated counties, thus violating the equal protection clause of the Constitution.

The marijuana group is seeking to qualify two initiatives for the November ballot to legalize marijuana products to treat epileptic seizures, pain and other maladies.

Petitions failed to qualify

Earlier in August, the Nebraska Secretary of State determined that Nebraskans for Medical Marijuana had failed to collect enough signatures statewide to qualify, as well as falling short in the 38-state requirement. Last week, the Secretary of State agreed to reconsider validating more petition signatures but said that still wouldn’t be enough to qualify for the ballot.

In Wednesday’s ruling, the court’s majority said it was already established precedence in the 8th Circuit that the right to place initiatives on the ballot is a matter of state law and is not specifically guaranteed in the U.S. Constitution.

Thus states have the power to determine how many signatures are needed and where the signatures should be gathered, wrote Appeals Court Judges Raymond Gruender and David Stras.

Dissent says precedent not ‘clear cut’

Appeals Court Judge Jane Kelly dissented, saying that past precedence wasn’t quite that “clear cut” and that the right to vote on ballot initiatives was an “integral part” of the election process.

“If the right to vote is fundamental, I see no reason why it should not apply equally to the initiative process at the heart of Nebraska’s electoral and legislative system,” Kelly wrote in dissent.

U.S. District Judge John Gerrard ruled in June that the marijuana group’s challenge was likely to succeed. He issued an injunction against enforcement of the 38-county requirement, which the Appeals Court reversed Wednesday.

Jane Seu, an ACLU of Nebraska attorney, called the ruling “troubling.”

“As the dissenting opinion recognizes, the ability to petition our government for change is foundational to our democracy,” Seu said in a press release. “For now, we will be taking time to carefully read through the decision and discuss our options. We are not giving up.”

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Paul Hammel
Paul Hammel

Senior Reporter Paul Hammel has covered the Nebraska Legislature and Nebraska state government for decades. A native of Ralston, Nebraska, he is vice president of the John G. Neihardt Foundation, a member of the Nebraska Hop Growers and a volunteer caretaker of Irvingdale Park in Lincoln.