Appointed or elected? FAQs on the county election commissioner issue

Attorney General Doug Peterson is asking the Nebraska Supreme Court to rule whether appointing county election commissioners violates the state Constitution. Here's our primer on the issue, with links to important documents.

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On Oct. 8, Nebraska Attorney General Doug Peterson filed a lawsuit asking the Nebraska Supreme Court to declare unconstitutional the state’s method of selecting certain county election commissioners. Here is more context about this issue, as well as some of the steps and documents that led to this lawsuit.

First, what is Civic Nebraska’s position on the lawsuit?

Civic Nebraska has maintained that all county election commissioners, including those in the state’s most populous counties, be accountable to the voters and be elected in accordance with the Nebraska Constitution.

“We applaud this decisive action by the attorney general. This is a serious Constitutional issue that is meant to be resolved, once and for all, by the Court. Civic Nebraska will keep all legal options on the table as we continue to seek a definitive Constitutional resolution,” Civic Nebraska Director of Voting Rights John Cartier said, following the lawsuit’s filing.

What is the issue at hand?

The statutes in question (1, 2) 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.

Which counties are affected?

Election commissioners in three counties – Douglas, Lancaster, and Sarpy – are currently appointed by the governor, while county commissioners do the appointing in Buffalo, Cass, Hall, and Platte counties. All told, these seven counties make up more than 60 percent of the state’s voting population.

How old are these state laws, and why were they passed in the first place?

The laws were enacted in 1913. At the time, they were instituted to keep elections in Nebraska’s most populous counties honest.

What are the details of this lawsuit?

The Nebraska attorney general is on one side of the legal action, and the Nebraska secretary of state – the office that oversees elections – the other. The AG is asking the Nebraska Supreme Court to 1) claim jurisdiction over the matter, and 2) rule that these state statutes are, in fact, in violation of our state Constitution. Read those documents here.

What created the need for this legal action?

Officially, the suit was triggered by a Sept. 30 letter from the governor to the AG, serving notice that he would not be making an appointment this year for the position of Douglas County Election Commissioner. The governor’s decision was based on a Sept. 24 Attorney General’s Opinion agreeing with Civic Nebraska’s contention that appointing the officials violated the state Constitution. “It is my belief that this issue should be decided by our judicial system before a legislative change is undertaken … my refusal is necessary in order to have this matter determined by the courts in a timely manner,” the governor’s letter states.

The constitutional question of appointing certain county election commissioners goes back several years. Previous attorney generals have issued official opinions regarding the matter (1,2). And, Civic Nebraska first supported legislation to change the practice in 2013. In June 2019, we wrote the AG’s office to lay out our legal position. Then, later this summer, State Sen. Matt Hansen of Lincoln officially asked the attorney general for a legal analysis. Here is our reaction to the AG’s Sept. 24 written opinion, which again states our reasoning to bring the issue before Nebraska state officials.

What’s next?

The Nebraska Supreme Court has agreed to hear the matter. After that, it will issue a ruling at some point in the future. Depending on what the Court decides, state officials will then address whatever changes are necessary.

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