Nebraska's top election official might try to remove a ballot measure to repeal school funding law

The Nebraska Supreme Court appears set to decide if voters get to determine whether to reject a new law pushed through largely by Republican lawmakers to provide taxpayer money for private school tuition. But depending on how they rule, the Nebraska Secretary of State could unilaterally deprive voters of that choice.

The state's high court heard arguments Tuesday in a lawsuit brought by an eastern Nebraska woman whose child received one of the first private school tuition scholarships available through the new law. Tom Venzor, a lawyer for the woman, argued that the referendum initiative to repeal the funding violates the state constitution's prohibition on voter initiatives to revoke legislative appropriations.

Daniel Gutman, the attorney for the referendum effort, countered that the ballot question appropriately targets the creation of the private school tuition program — not the $10 million appropriations bill that accompanied it.

But what drew more attention was the assertion by lawyers on both sides that Republican Nebraska Secretary of State Bob Evnen intends to decertify the ballot question — only days after certifying it — unless specifically ordered by the high court to keep it on the ballot.

Evnen certified the repeal measure last week after finding that organizers of the petition effort had gathered thousands more valid signatures than the nearly 62,000 needed to get the repeal question on the ballot. He apparently changed his mind, according to a brief filed late Monday afternoon by the Nebraska Attorney General's office, which states that after reviewing the court challenge to it, “Secretary Evnen is convinced that the referendum is not legally sufficient.”

The brief adds that if the high court fails to rule on the merits of the challenge and simply dismisses the case for procedural reasons, “Secretary Evnen will immediately rescind his legal sufficiency determination and not place the referendum on the ballot.”

Asked whether state law allows for a secretary of state to decertify an already certified ballot measure, Gutman said there is “nothing in the statutes that we’re aware of that says that he can revoke that decision.”

The problem, he said, is that the law requires the November ballot to be set by Friday.

“I think that his threat of revoking the decision threatens the credibility of certification generally,” Gutman said. “Our frank concern is that if this court dismisses this case for lack of jurisdiction, or basically on a procedural ground, that there will be a decertification issued on Friday afternoon and there simply will be no time.

"We will have no recourse.”

Evnen declined to confirm or deny Tuesday that he plans to remove the private school tuition repeal measure off the ballot unless ordered to keep it on by the court, offering only, “What we need now is a decision on the merits from the Nebraska Supreme Court.”

A similar scenario played out Monday in Missouri, where Republican Secretary of State Jay Ashcroft had certified a ballot measure last month that asks voters to undo the state's near-total abortion ban. On Monday, Ashcroft reversed course, declaring he was decertifying the measure and removing it from the ballot.

The Missouri Supreme Court on Tuesday ordered Ashcroft to put the measure back on the ballot.

The development comes after a long fight over the private school funding issue. Public school advocates carried out a successful signature-gathering effort this summer to ask voters to reverse the use of public money for private school tuition.

It was their second successful petition drive. The first came last year, when Republicans who dominate the officially nonpartisan Nebraska Legislature passed a bill to allow corporations and individuals to divert millions of dollars they owe in state income taxes to nonprofit organizations. Those organizations, in turn, would award that money as private school tuition scholarships.

Support Our Schools collected far more signatures last summer than was needed to ask voters to repeal that law. But lawmakers who support the private school funding bill carried out an end-run around the ballot initiative when they repealed the original law and replaced it earlier this year with another funding law. The new law dumped the tax credit funding system and simply funds private school scholarships directly from state coffers.

Because the move repealed the first law, it rendered last year’s successful petition effort moot, requiring organizers to again collect signatures to try to stop the funding scheme.

Nebraska’s new law follows several other conservative Republican states — including Arkansas, Iowa and South Carolina — in enacting some form of private school choice, from vouchers to education savings account programs.