Measure to repeal Nebraska's private school funding law should appear on the ballot, court rules

A ballot measure seeking to repeal a new conservative-backed law that provides taxpayer money for private school tuition should appear on the state's November ballot, the state Supreme Court ruled Friday.

The court found that the ballot measure does not illegally target a government appropriation, which was what lawyers who sought to pull the repeal measure from the ballot had argued.

An order to strip the repeal measure from the ballot “would frustrate the fundamental purpose of the referendum provision to give the people the right to vote on specific legislation,” the unanimous ruling read.

The ruling came just days after 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. Her lawsuit argued that the referendum initiative violates the state constitution’s prohibition on voter initiatives to revoke legislative appropriations for government functions.

An 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, and the court agreed.

Republican Nebraska Secretary of State Bob 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.

But in an eleventh-hour brief submitted to the state Supreme Court before Tuesday's arguments, Evnen indicated that he believed he made a mistake and that “the referendum is not legally sufficient.”

The brief went on to say that Evnen intended to rescind his certification and keep the repeal effort off the ballot unless the high court specifically ordered that it remain.

If Evnen were to follow through with that declaration, it would have left only hours for repeal organizers to sue to try to get the measure back on the ballot. The deadline for Evnen to certify the general election ballot is Friday.

An attorney for repeal organizers, Daniel Gutman, had argued before the high court that there is nothing written in state law that allows the secretary of state to revoke legal certification of a voter initiative measure once issued.

Chief Justice Mike Heavican, writing in a concurring opinion, agreed with Gutman's assessment.

“The Secretary concedes that he made a determination that the referendum was valid and sufficient and met legal sufficiency requirements.' Once done, I am aware of no process by which the Secretary can change his mind and ‘rescind his legal sufficiency determination and not place the referendum on the ballot,’” Heavican wrote.

A similar threat by a Republican secretary of state played out in another GOP-controlled state this week. Last month, Missouri Secretary of State Jay Ashcroft certified a ballot measure that asks voters to undo the state’s near-total abortion ban. But 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 return the measure to the ballot.

Public school advocates who organized the Nebraska repeal ballot effort lauded Friday's ruling, but they warned that school choice advocates plan to spend millions in ads to get the proposed repeal voted down in November.

“At every turn, those wanting to use public funds to pay for their private schools have fought against the right of Nebraskans to vote on this issue,” said Jenni Benson, who serves on the board of the group Support Our Schools Nebraska and is president of the state's largest teachers union. “But Nebraskans support public education -– they know their local public schools are the heart of their communities.”

The state attorney general's office, which had argued for the removal of the repeal measure, thanked the court for its consideration but declined to comment on the ruling.

The Nebraska Supreme Court's ruling 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.