Eggers v. Evnen

• Docket Number: 4:22-CV-3089
• Decision Date: 13 June 2022
• Parties: CRISTA EGGERS and NMM, Plaintiffs, v. ROBERT EVNEN, Nebraska Secretary of State, Defendant.
• Court: U.S. District Court — District of Nebraska

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CRISTA EGGERS and NMM, Plaintiffs, v. ROBERT EVNEN, Nebraska Secretary of State, Defendant.

No. 4:22-CV-3089

United States District Court, D. Nebraska

June 13, 2022

PRELIMINARY INJUNCTION

John M. Gerrard, United States District Judge

I. INTRODUCTION

Under Nebraska law, a petitioner seeking to place an initiative on the ballot must collect valid signatures from at least five percent of the registered voters in at least 38 of Nebraska's 93 counties. The plaintiffs in this case argue, among other things, that the 38-county rule violates the Equal Protection Clause of the U.S. Constitution, because it gives more power to voters in rural counties than in urban counties. And it does.

The Secretary of State's arguments to the contrary have significant implications. The Secretary takes the position that the right of initiative-the "first power reserved by the people" under the state constitution-is not part of Nebraskans' fundamental right to vote. The Secretary argues that the State can, in fact, abridge that right so long as "there is any reasonably conceivable state of facts that could provide a rational basis for it." And the Nebraska Secretary of State and Nebraska Attorney General's Office take the position that the 38-county rule is inseverable from the general initiative power-in other words, if the 38-county rule treats voters differently then the entirety of Nebraska's initiative and referendum process should be struck down. For the State to argue that the baby must go with the bathwater is eyebrow-raising.

The Court disagrees with the Secretary: The right of initiative is, the Court finds, a fundamental right that the citizens of Nebraska possess, so the State may not discriminate against them in their exercise of that right. And, the Court finds the power of initiative can be effectively exercised without discrimination. The State of Nebraska is absolutely free to require a showing of statewide support for a ballot initiative-but it may not do so based on units of dramatically differing population, resulting in discrimination among voters. Accordingly, the Court will grant the plaintiffs' motion (filing 2) to enjoin the Secretary of State from enforcing the 38-county rule.

II. BACKGROUND

The Nebraska Constitution provides that "[t]he first power reserved by the people is the initiative whereby laws may be enacted and constitutional amendments adopted by the people independently of the Legislature." Neb. Const. art. III, § 2. That power is "invoked by petition," requiring the proponent of an initiative to gather signatures from registered voters to place the proposed initiative on the general election ballot. Id.

A petition to enact a law needs signatures from seven percent of Nebraska's registered voters, and a petition to amend the state constitution requires signatures from ten percent of registered voters. Id. And, central to this dispute: "In all cases the registered voters signing such petition shall be so distributed as to include five percent of the registered voters of each of two-fifths of the counties of the state. . . ." Id. In other words, in addition to gathering the signatures of approximately 87, 000 registered voters, proponents of an initiative must gather signatures from at least five percent of the registered voters in at least 38 of the 93 counties in Nebraska. Id.; see Nebraska Secretary of State, 2022 Eligible Voter Statistics: Statewide, June 2022, https://sos.nebraska.gov/files/doc/elections/vrstats/2022VR/Statewide-June-2022.pdf.

The population differences among those counties are marked. Douglas County is the most populous, with 584, 526 residents in the 2020 census, and also has the most registered voters with 357, 489. See id.; University of Nebraska Omaha, 2020 Census in Nebraska: Counties, Population from 1860 to 2020, https://www.unomaha.edu/college-of-public-affairs-and-community-service/center-for-public-affairs-research/documents/data-county-pop-1860-to-2020census.xlsx. The least populous is McPherson County, with 399 residents and 346 voters, although it still has a few more voters than Arthur County, with 434 residents but only 337 voters. See id. Even were a petitioner to focus attention on the 38 most populous counties, the 38th-Merrick County-has only 7, 668 residents and 5, 086 registered voters. See id.

Those disparities are the basis for this challenge brought by the plaintiffs, Crista Eggers and the organization she works for, NMM (also known as Nebraskans for Medical Marijuana). Filing 1 at 1-2. Eggers is a registered voter in Sarpy County (190, 604 residents and 121, 653 registered voters) and is also a paid contractor, volunteer, and sponsor of NMM. Filing 1 at 1-2. NMM has filed paperwork with the defendant, the Nebraska Secretary of State, to place two initiative petitions on the November 2022 general election ballot, both generally intended to legalize cannabis for medical purposes in Nebraska. See filing 1 at 2; filing 4-1 at 9-12, 15-19.^[1] They are gathering signatures for submission before this year's deadline of July 7, 2022. (Signatures are due "not less than four months" before the general election, see art. III, § 2, which this year is November 8, 2022, see Neb. Rev. Stat. § 32-403.)

The plaintiffs allege that the 38-county rule violates the U.S. Constitution in two ways. First, they allege that the 38-county rule makes the signature and vote of a registered voter in a more populous county "less meaningful than the signature and vote of other Nebraska residents in more sparsely populated counties." Filing 1 at 10-11. This, they say, is a violation of Eggers' rights under the Equal Protection Clause. Filing 1 at 11. Second, the plaintiffs allege that the 38-county requirement forces petition circulators to curtail their efforts in more populous counties in order to obtain the required signatures from other counties, limiting the number of people they can reach and making it more difficult to get their proposals on the ballot. Filing 1 at 12. This, they say, violates their First Amendment rights. Filing 1 at 13.

The plaintiffs seek a declaration that the 38-county rule is unenforceable and a permanent injunction barring the Secretary from enforcing it. Filing 1 at 13. And, because the signature-gathering process is ongoing and their deadline is looming, they also want a preliminary injunction barring enforcement of the 38-county rule immediately. See filing 2. The Secretary disagrees. Filing 10 at 1. The Secretary also thinks that before doing anything, this Court should ask the Nebraska Supreme Court whether the 38-county rule is severable from the remainder of art. III, § 2. Filing 12.

III. DISCUSSION

It's important to clarify, at the outset, that although Eggers is only one person, she's a plaintiff in two very different capacities. As a petition sponsor, Eggers and NMM are in the same position: They are working to get a particular initiative on the ballot, and their interests involve the difficulty and feasibility of successfully getting that done. Eggers, however, is also registered to vote in Sarpy County-one of Nebraska's most populous counties. So, as a petition signatory, she's personally affected by the alleged dilution of the value of her signature. To somewhat oversimplify, then: Eggers (wearing her petition-circulating hat) and NMM are asserting First Amendment rights associated with promulgating their initiative petitions, but Eggers (wearing her "I Voted" sticker) is also asserting her Equal Protection rights as a registered voter.

1. STANDING

But before directly addressing the merits of the plaintiffs' claims, the Court must address the issue of standing, because the Secretary says the plaintiffs lack it. Filing 10 at 2. The Constitution gives federal courts the power to adjudicate only genuine "Cases" and "Controversies," U.S. Const., art. III, § 2, and that power includes the requirement that litigants have standing, California v. Texas, 141 S.Ct. 2104, 2113 (2021). To satisfy the "irreducible constitutional minimum" of Article III standing, a plaintiff must not only establish (1) an injury in fact (2) that is fairly traceable to the challenged conduct, but must also seek (3) a remedy that is likely to redress that injury. Uzuegbunam v. Preczewski, 141 S.Ct. 792, 797 (2021). It is redressability that the Secretary questions here. Filing 10 at 9-17.

(a) Redressability

The Secretary's argument goes like this: The 38-county rule the Secretary says, isn't severable from the remainder of art. III, § 2. As a result, according to the Secretary, if the 38-county rule is constitutionally defective, Nebraska's entire initiative process falls with it. But the plaintiffs support an initiative! So, the Secretary concludes, their injury isn't redressable-at least, not in the way they'd like, because they would end up killing the initiative they're trying to support. See filing 10 at 9. For their part, the plaintiffs suggest that the Court need not consider severability at all: Instead, they say that severability is a "post-merits relief determination" that's appropriately weighed only after a determination that the challenged provision is actually unconstitutional. Filing 16 at 5.

Neither position is entirely persuasive. To begin with, the Secretary's reasoning is circular: He asks the Court to assume the unconstitutionality of the 38-county rule, and then determine based on that hypothesis whether it's severable from art. III, § 2 . . . all to work around to the conclusion that the Court didn't have jurisdiction to make any of those decisions in the first place. The Secretary is conflating standing with the merits of the plaintiffs' case.

Moreover the Court is unpersuaded by the Secretary's suggestion that redressability...