By: Eric Sutton

Background and the Referendum Process

            On Wednesday, May 27th, 2015, the Nebraska Unicameral Legislature eliminated capital punishment through LB 268. The bill was approved over a veto by Governor Pete Ricketts, by a no-votes-to-spare 30-19 margin, and marked the end of State Senator Ernie Chambers’ 39-year effort to end the death penalty in Nebraska. The repeal made Nebraska the first conservative state to eliminate capital punishment in more than 40 years. However, immediately after the repeal, State Senator Beau McCoy, a conservative, expressed his frustration over the vote and announced his intent to pursue a ballot initiative to reinstate the death penalty. Less than one week after the repeal and Sen. McCoy’s statements, a group named Nebraskan’s for the Death Penalty (“NFDP”) filed the appropriate paperwork with the Secretary of State to reinstate the death penalty by referendum.

NFDP seeks to overturn a specific legislative enactment (LB 268), thus qualifying the initiative as a referendum under Nebraska Constitution Art. III, Sect. 3, and not a ballot initiative aimed at passing a new law or constitutional amendment. While the normal referendum process only requires petition signatures amounting to 5 percent of eligible voters, NFDP wishes to halt implementation of LB 268 before the referendum takes place. Therefore, the referendum proponents needed the signatures of 10 percent of registered voters to within 90 days of the end of the legislative session to stop the immediate effect of LB 268.

As the most recent Secretary of State records report that Nebraska has 1,152,180 registered voters, supporters of the death penalty needed 152,180 valid signatures in order to halt implementation until the referendum. After working all summer, supporters of the referendum turned in 166,692 signatures on August 28. The Secretary of State’s office reported that, as of September 13th, NFDP likely submitted enough approved petition signatures to require a referendum, and, as of September 20th, to halt repeal until the referendum. Thus, all signs indicate that the referendum supporters conducted a successful drive to place the issue on the ballot.

Money, Sponsorship, and Lawsuits

            NFDP received several donations of more than $100,000 and raised more than $900,000 in support of its efforts. The largest overall donor is the Washington, D.C.-based Judicial Crisis Network, which gave $300,000. New York billionaire and conservative donor Robert Mercer has given $100,000. Gov. Pete Ricketts gave $200,000 while his father, Joe Ricketts, founder of TD Ameritrade, gave $100,000. Even though over one-third of NFDP’s donations have come from out of state donors, Gov. Ricketts’ donations have caused trouble for the referendum.

Led by ACLU lobbyist Alan Peterson, opponents of the referendum filed a lawsuit to invalidate the referendum because Gov. Ricketts’ was not listed as sponsor of the referendum and, relatedly, that Gov. Ricketts’ relied on his position and title as governor to raise money for the referendum. Gov. Ricketts’ maintains that he is a strong supporter of the NADP’s mission, but is not an official sponsor of the group. This lawsuit could have drastic implications for the referendum as the Nebraska Supreme Court previously struck down a petition drive because the organizers did not include a sworn list of sponsors.

This suit will likely turn on the definition of the word “sponsor,” as opponents of the referendum argue that the referendum proponents failed to list the “true principal and real leader[s].” Nebraska statutes do not provide a clear definition of “sponsor.” However, in 1940, the Nebraska Supreme Court, relying on old statutes, understood “sponsor” to mean any individual or corporation “sponsoring the petition or contributing or pledging contributions to defray the cost of preparation, printing, and circulation of petitions.” State ex rel. Winter v. Swanson (138 Neb. 597, 294 N.W. 200, 201 (1940)). This understanding was valid at least through 1968, but may have been amended by legislative enactment. If this definition is still valid, the timing of Gov. Ricketts’ donations may be of critical importance.

Opponents of the death penalty have also filed a second suit challenging the ballot language of the referendum. This second suit alleges that the proposed language gives the “incorrect impression” that repealing the death penalty provides for a more lenient sentence than life imprisonment. Importantly, unlike the first suit challenging Gov. Ricketts’ involvement, striking down the ballot language would not invalidate the referendum. It would only require a change to the language before Election Day and seems more like fall back should the suit attempting to strike down the referendum fail.

The death penalty referendum is currently scheduled to take place on November 8th, 2016. Still, as the lawsuit over Gov. Ricketts’ sponsorship could end the referendum process, the issue will likely not be far from the public consciousness over the next year. Furthermore, even if the courts invalidate the current initiative, it is no stretch of the imagination to believe that death penalty supporters (64 percent of likely voters, according to NFDP) will again try to present the issue through a statewide referendum or reinstate capital punishment through another legislative enactment.

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