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Nebraska Initiative Rule Violates US Constitution

OMAHA (CN) - Nebraska's threshold for placing initiatives and referendums on the ballot violates the Firsts Amendment in giving preference to voters in rural counties, a federal judge ruled.

At issue is a stipulation in the Nebraska Constitution that requires petitioners to acquire signatures from "5 percent of the registered voters of each of two-fifths of the counties of the state."

According to this math, an initiative or referendum petition must be circulated in at least 38 of Nebraska's 93 counties.

Plaintiff Kent Bernbeck, took issue with the requirement on the grounds of free speech and equal protection.

In his lawsuit, Bernbeck notes that 41 percent of Nebraska's 1.8 million people live in one of five contiguous counties at the state's far eastern border. This includes Omaha but not the second-largest city, Lincoln, although Lincoln is also in the eastern quarter of the state.

Senior U.S. District Judge Joseph F. Bataillon ruled on Monday that the geographic threshold requirement did violate the due process and equal protection clauses of the U.S. Constitution.

"The court finds that the facts presented in this case show clearly that urban votes are diluted under the Nebraska Constitution," Bataillon wrote. "The Nebraska Constitution does not yield equality among citizens, but instead it gives more weight to the power of rural votes."

As enforced, a voter from an urban area effectively saw her vote count less than a vote from a rural area.

Bataillon issued a permanent injunction enjoining defendant Secretary of State John Gale from enforcing the distribution requirement when validating petitions.

The initiative and referendum powers became part of the Nebraska Constitution in 1912 after approval by state voters.

Despite the restrictions, several ballot initiatives have made it onto state ballots in recent years, though seldom were they successful. However, state voters last week approved an initiative that will raise the state minimum wage to $9 an hour by 2016.

This was the third time Bernbeck has brought suit to ease restrictions on the ballot petition process, including cases in 1997 and 2010. An Omaha resident, he's been a part of five statewide initiative petition drives and worked as a consultant on several others.

Bernbeck was represented David Domina of Omaha, who unsuccessfully ran for U.S. Senate this year.


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