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 target an appropriation, which is prohibited by law

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.

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.

RELATED COVERAGE Nebraska ballot can include competing measures to expand or limit abortion rights, high court rules No. 23 Nebraska enters game vs. Northern Iowa as a ranked team for the first time in 5 years No. 23 Nebraska closes nonconference play with matchup against Northern Iowa of the FCS

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 leave 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.

A similar scenario played out this week in Missouri, where Republican Secretary of State Jay Ashcroft had certified in August a ballot measure 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 return the measure to the ballot.

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.