The Nebraska Supreme Court appears determined to decide whether voters should have a choice about whether to reject a new law pushed by largely Republican lawmakers that provides taxpayer money for private school tuition. But depending on how they rule, Nebraska’s secretary of state could unilaterally deprive voters of that choice.
The state Supreme Court heard arguments Tuesday in a lawsuit brought by an eastern Nebraska woman whose child received one of the first private school scholarships available under the new law. Tom Venzor, an attorney for the woman, argued that the referendum initiative to repeal the funding violates the state constitution’s ban on voter initiatives to repeal statutory appropriations.
Daniel Gutman, the attorney who led the referendum campaign, countered that the ballot question correctly focuses on the creation of the private school tuition program, not the $10 million budget bill that came with it.
But what drew more attention was the claim by lawyers on both sides that Nebraska’s Republican Secretary of State, Bob Evnen, plans to decertify the ballot question — just days after he certifies it — unless the Supreme Court specifically orders it to remain on the ballot.
Also the withdrawal measure certified last week after discovering that petition organizers had collected thousands more valid signatures than the nearly 62,000 needed to get the recall question on the ballot. He apparently changed his mind, according to a letter filed late Monday afternoon by the Nebraska attorney general’s office, which said that after reviewing the court challenge to it, “Secretary Evnen is convinced that the referendum is legally insufficient.”
The summary judgment adds that if the Supreme Court does not rule on the merits of the challenge and simply dismisses the case on procedural grounds, “Secretary Evnen will immediately withdraw his finding of legal sufficiency and will not place the referendum on the ballot.”
Asked whether state law allows a secretary of state to overturn a ballot measure that has already been certified, Gutman said there is “nothing in the statute that we are aware of that allows him to overturn that decision.”
The problem, according to him, is that the law stipulates that the November ballot must be determined by Friday at the latest.
“I think his threat to vacate the decision threatens the credibility of certification in general,” Gutman said. “Our real concern is that if this court dismisses this case for lack of jurisdiction, or basically on procedural grounds, that there will be a decertification issued Friday afternoon and there simply won’t be time.
“We don’t have any story.”
Evnen declined Tuesday to confirm or deny whether he plans to remove the private school tuition repeal measure from the ballot unless the court orders him to leave it in place, saying 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 last month approved a ballot measure asking voters to overturn the state’s near-total abortion ban. Monday, Ashcroft reversed coursein which he indicated that he would no longer certify the measure and remove 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 battle over the issue of private school funding. Public school advocates conducted a successful signature campaign this summer asking voters to reverse the use of public money for private school tuition.
It was their second successful petition drive. The first was last year, when Republicans who dominate Nebraska’s officially nonpartisan legislature a bill passed to allow businesses and individuals to divert millions of dollars they owe in state income taxes to nonprofits. Those organizations would then award the money as scholarships to private schools.
Support Our Schools gathered far more signatures than needed last summer to ask voters to repeal that law. But lawmakers who support the private school funding bill took a roundabout way to bypass the ballot initiative when they repealed the original law and replaced it with another funding bill earlier this year. The new law ditches the tax credit funding system and simply funds private school scholarships directly from the state treasury.
Because this measure repealed the first law, the successful petition from last year was no longer applicable. Organizers had to collect signatures again to try to stop the funding program.
Nebraska’s new law follows that of several other conservative Republican states, including Arkansas, Iowa And South Carolina — by introducing some form of free choice for private schools, from vouchers to education savings accounts.