Lawsuit filed to change Nebraska petition laws -
Published Wednesday, July 31, 2013 at 12:00 am / Updated at 2:38 am
Lawsuit filed to change Nebraska petition laws

LINCOLN — A veteran of multiple petition drives and lawsuits is taking on the state's petition law once again.

Kent Bernbeck of Omaha filed a federal lawsuit Tuesday challenging two petition requirements as violations of his constitutional rights.

The first is a provision in the Nebraska Constitution requiring a geographic distribution of petition signers.

To make the ballot, an initiative petition must have signatures from at least 5 percent of voters in at least two-fifths, or 38, of Nebraska's 93 counties.

The requirement is in addition to constitutional provisions governing the total number of signatures that must be collected.

The second is a 2008 state law banning payment of petition circulators by the signature.

Bernbeck claims, in the lawsuit (PDF), that the two requirements have prevented him from getting petitions on the ballot. Both increase the time and cost of exercising his rights, he said.

Bernbeck's attorney, David Domina of Norfolk, said Bernbeck filed the suit to protect rights for all Nebraskans.

“He is bringing this challenge to guarantee all Nebraskans can participate in this core democratic process,” Domina said, “a process so important that the founders of our nation called out the right as fundamental and to be preserved without intrusion.”

The lawsuit marks the second time Bernbeck has challenged the per-signature payment ban, but his first time to challenge the geographic distribution requirements for signatures.

Nebraska Secretary of State John Gale, who was named as a defendant, said he could not comment on the lawsuit.

“The area of initiative petitions is quite subject to litigation, so there are regularly new lawsuits and new decisions across the country,” he said. “We have had our share, and this is just the most recent one.”

In the lawsuit, he argues that the distribution requirement dilutes the voices and votes of people living in Nebraska's most populous counties.

He notes that the five counties nearest to his home — Douglas, Sarpy, Dodge, Saunders and Washington — contain 41.56 percent of the state population.

Meanwhile, the 64 least populated counties combined have fewer people than Douglas and Sarpy Counties.

Three years ago, Bernbeck was part of another lawsuit challenging the per-signature payment ban, as well as restrictions on who could circulate petitions.

U.S. District Judge Joseph Bataillon threw out a restriction on out-of-state circulators but upheld the per-signature payment ban and age limits on circulators. Bataillon said the payment ban had been upheld in three federal appeals courts.

In the current lawsuit, Bernbeck said the ban is similar to a Colorado law that was recently thrown out in federal court.

He said the requirement kept him from succeeding last year with a petition drive in Denton, a Lancaster County village. He used a circulator who was paid per signature.

Denton Village Clerk Charlotte TeBrink refused to accept the petition and a Lancaster County court upheld her decision. The court ruled the three signatures from the paid circulator were invalid and the 13 remaining signatures were not enough to qualify the petition for the ballot.

The suit also named TeBrink as a defendant.

The lawsuit claimed that paying circulators by the hour increases costs because circulators do not have enough incentive to produce.

Backers of the per-signature payment ban said it was needed to prevent problems seen in past state petition drives.

Bernbeck argues in his suit that the number of petitions making the ballot has dropped in states that enacted per-signature payment bans.

Bernbeck has had mixed success with past petition law challenges. He was part of a 1996 lawsuit that overturned several circulator restrictions.

Contact the writer: Martha Stoddard    |   402-473-9583    |  

Martha covers the Nebraska Legislature, the governor, state agencies, and health, education and budget issues out of our Lincoln bureau.

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