‘Constitutionally suspect’: Civic Nebraska applauds AG opinion on appointed election commissioners

Civic Nebraska looks forward to discussing potential remedies with state legislators with the upcoming session of the Nebraska Legislature in mind. If a legislative solution is unattainable Civic Nebraska would be prepared to file a legal challenge to the standing of the unelected officials.

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Civic Nebraska applauded an opinion issued Sept. 24 by Attorney General Doug Peterson that said the appointment of election commissioners in several of the state’s largest counties was “constitutionally suspect.”

In a seven-page opinion, the attorney general supported Civic Nebraska’s assertion that county election officials and chief deputy election commissioners are county officers, and therefore must be elected and not appointed.

Election commissioners in three counties – Douglas, Lancaster and Sarpy – are appointed by the governor, while county commissioners do the appointing in Buffalo, Cass, Hall, and Platte counties. All told, the seven counties make up a majority of the state’s voting population.

John Cartier, Civic Nebraska’s director of voting rights, said the organization looks forward to working with the Legislature to find a remedy in the 2020 legislative session.

“With the 2020 elections approaching, this matter should be addressed in a pragmatic way that will give citizens back their right to elect those who conduct elections in their counties,” he said.

If a legislative solution is unattainable, Cartier said, Civic Nebraska would be prepared to file a legal challenge to the standing of the unelected officials.

Known as a quo warranto action, that challenge is used to resolve a dispute over whether a specific person has the legal right to hold a particular public office. Quo warranto tests the legal right to hold an office, not an official’s performance in that office, Cartier said.

“It has always been the right of Nebraska citizens to choose the officials who run their elections,” Cartier said. “And it is vital that all of Nebraska’s elections are administered by officers that are chosen in accordance with the Nebraska Constitution.”

The statutes in question require counties that reach certain population thresholds to allow the governor or county boards to appoint county election commissioners. Civic Nebraska has asserted that these statutes are in violation of Article IX, Section 4 of the Nebraska Constitution, which defines “necessary county officers” and plainly states that those officers are to be chosen by voters.

Cartier thanked State Sen. Matt Hansen of Lincoln for requesting a formal opinion on the matter in June. Civic Nebraska originally raised the constitutional issue in a May letter to the attorney general. In that letter, it cited two previous state attorney general positions as well as established case law to justify the constitutional concern.

“It is our view that the statutes providing for the appointment of election commissioners and chief deputy election commissioners would, if challenged, be held unconstitutional by the Nebraska Supreme Court,” the opinion reads.

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