Nebraska Attorney General Doug Peterson has filed a lawsuit asking the Nebraska Supreme Court to declare unconstitutional the state’s method of selecting certain county election commissioners. The case was sent to Lancaster County District Court in November. In December, a Hall County resident filed a separate suit challenging the appointment practices.
Here is more context about this issue.
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. This has been our position since at least 2012, when we first brought it to legislators’ and state officials’ attention.
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 asked 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. On Nov. 5, because both sides could not agree on specific facts of the case, the high court moved the case to Lancaster County District Court.
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.
The Nebraska Supreme Court agreed to hear the case but then moved it to Lancaster County District Court after the two sides could not agree upon a common set of facts by a Nov. 5 deadline. Sen. Hansen also introduced LB1022 in the 2020 session of the Nebraska Legislature.
1913: The Nebraska Legislature, in an effort to keep the administration of elections in the state’s largest counties honest, passes statutes that require counties over certain population thresholds to have appointed election commissioners.
1994: Then-Attorney General Don Stenberg issues an Attorney General’s Opinion on LB76, which sought to reform election law in Nebraska, describes county election commissioners in counties over 50,000 residents as “county officers.”
1996: Stenberg issues a second Attorney General’s Opinion, this time regarding whether a constitutional amendment would be needed to alter counties’ form of governance. In part, it concluded, “While the Legislature is vested with broad authority to determine which county offices will exist, once those offices have been established, the people have retained the right to elect the individuals who will occupy those offices.”
June 7, 2019: Civic Nebraska writes Attorney General Doug Peterson’s office to lay out a legal argument for why the practice of appointing county election commissioners is unconstitutional. It asks the AG to work with the Legislature or to take legal action to alleviate this constitutional concern.
Late June 2019: State Sen. Matt Hansen officially requests the Attorney General’s Office for an opinion on the matter.
Sept. 24, 2019: In a seven-page opinion, the AG’s office says the practice of appointment of county election officials is “constitutionally suspect” and predicted that, if brought to the Nebraska Supreme Court, it would be found unconstitutional.
Sept. 30, 2019: Gov. Pete Ricketts notifies the AG he will not re-appoint Douglas County’s election commissioner, requiring the AG’s office to file a legal action to resolve the matter.
Oct. 8, 2019: Peterson challenges the statutes with the Nebraska Supreme Court. Secretary of State Robert Evnen and the relevant county election commissioners are named as defendants. The court sets a Nov. 5 deadline for the two sides to agree upon shared facts of the case.
Nov. 6, 2019: The deadline having expired with resolution, the Nebraska Supreme Court sends the case to Lancaster County District Court.
Nov. 26, 2019: Civic Nebraska assists a voter in Lancaster County who asks to intervene in the case to ensure Nebraska voters are represented in the legal action.
Dec. 5, 2019: Civic Nebraska assists a voter in Hall County in filing a separate lawsuit challenging the specific appointment practices in Hall, Buffalo, Cass, and Platte counties. A judge subsequently rules to delay the case until the Lancaster County case is reconciled.
Jan. 16, 2020: Sen. Hansen introduces LB1022, which would provide for the election of all election commissioners in Nebraska.