State ex rel. Stenberg v. Moore
| Citation | 602 N.W.2d 465,258 Neb. 199 |
| Decision Date | 19 November 1999 |
| Docket Number | No. S-98-983.,S-98-983. |
| Parties | STATE of Nebraska ex rel. Don STENBERG, Attorney General of the State of Nebraska, appellant, v. Scott MOORE, Secretary of State of the State of Nebraska, appellee. |
| Court | Supreme Court of Nebraska |
Don Stenberg, Attorney General, L. Steven Grasz, and Dale Comer, Lincoln, for appellant.
Michael F. Coyle, Special Assistant Attorney General, and Michael L. Schleich, of Fraser, Stryker, Vaughn, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellee.
The Attorney General, Don Stenberg, appeals a decision of the district court which upheld the constitutionality of Neb. Rev.Stat. § 32-1409(1) (Reissue 1998). Section 32-1409(1) provides that signatures on initiative petitions will not be presumed to be valid unless the printed name, date of birth, street and number or voting precinct, and city, village, or post office address match the voter registration records. Under Neb. Const. art. III, § 4, the initiative and referendum process is self-executing, but legislation may be enacted to facilitate its operation. We conclude that on its face, § 32-1409(1) does not facilitate the operation of the initiative process and thus is unconstitutional. Accordingly, we reverse.
The appellee, Secretary of State Scott Moore, serves as the state's chief election officer and administers the election laws of the state. When Nebraska citizens seek to change the law or the state Constitution through the initiative or referendum process, they are required to submit the proposed language for the change to Moore's office, which assists the petitioners in preparing a form to be circulated. In order to place a proposed change on the ballot, the petitioners must obtain signatures of 10 percent of the registered voters in the state as of the date the petition is due to be returned to Moore's office. See Neb. Const. art. III, § 2; Duggan v. Beermann, 245 Neb. 907, 515 N.W.2d 788 (1994). Moore then begins a process of verifying the signatures on the petition pursuant to § 32-1409(1).
Before September 9, 1995, § 32-1409(1) (Cum.Supp.1994) provided:
Upon the receipt of the petitions, the Secretary of State, with the aid and assistance of the election commissioner or county clerk, shall determine the validity and sufficiency of signatures on the pages of the filed petition. The Secretary of State shall deliver the various pages of the filed petition to the election commissioner or county clerk.... The election commissioner or county clerk shall compare the signature of each person signing and the circulator upon each of the pages of the petition with the voter registration records to determine if the circulator was a registered voter on the date of signing the petition and to determine if each signer was a registered voter on or before the date on which the petition was required to be filed with the Secretary of State. The election commissioner or county clerk shall also compare the signer's street and number or voting precinct and city, village, or post office address with the voter registration records to determine whether the signer was a registered voter. All signatures and addresses shall be presumed to be valid signatures and addresses if the election commissioner or county clerk has found the signers to be registered voters on or before the date on which the petition was required to be filed with the Secretary of State, except that such presumption shall not be conclusive and may be rebutted by any credible evidence which the election commissioner or county clerk finds sufficient. The express purpose of the comparison of names and addresses with the voter registration records, in addition to helping to determine the validity of such petition, the sufficiency of such petition, and the qualifications of the signer, shall be to prevent fraud, deception, and misrepresentation in the petition process.
(Emphasis supplied.) The Legislature subsequently passed 1995 Neb. Laws, L.B. 337, effective September 9, 1995. Following L.B. 337, the Legislature passed 1997 Neb. Laws, L.B. 460, effective September 13, 1997, which slightly modified § 32-1409(1). Thus, the changed language of § 32-1409(1) emphasized above, as amended by L.B. 337 and L.B. 460, now reads:
The election commissioner or county clerk shall also compare the signer's printed name, date of birth, street and number or voting precinct, and city, village, or post office address with the voter registration records to determine whether the signer was a registered voter. The signature, date of birth, and address shall be presumed to be valid only if the election commissioner or county clerk finds the printed name, date of birth, street and number or voting precinct, and city, village, or post office address to match the registration records.... The finding of the election commissioner or county clerk may be rebutted by any credible evidence which the Secretary of State finds sufficient.
Section 32-1409(4) provides that "[t]he Secretary of State may adopt and promulgate rules and regulations for the issuance of all necessary forms and procedural instructions to carry out this section."
Following the change in § 32-1409(1), the Attorney General brought this declaratory judgment action contending that § 32-1409(1) was facially unconstitutional. The Attorney General also sought an injunction enjoining Moore from implementing § 32-1409(1). During the hearing on the issue, Moore offered evidence regarding the manner in which his office administered § 32-1409. According to Moore, once petitions are filed with his office, he sends them to each of the separate counties in the state. Moore also provides the counties with "guidelines" on how to complete the verification process. These guidelines state that the county officials should use their best efforts to verify a signature as opposed to disqualifying a signature.
Under the guidelines, a signature that utilizes a nickname can be counted if it is a shortening of the name or is on a list of approved nicknames. According to Moore, if a registered voter signed a petition using a nickname instead of the full name he or she had registered under, the signature would be presumed to be valid and would be counted if the nickname used was on the list. Moore also testified that if a voter's registration record showed his or her address as a specific rural address, but the voter signed a petition using only a rural route number, the signature should be counted under his guidelines. According to Moore, the guidelines he sent to county officials required them to "find some sort of conversion to make sure that those count." The guidelines also provide that signatures with errors such as a missing or incomplete year for the date or a misspelling of a street or village name should be counted.
Neal Erickson, an employee in Moore's office, testified that under some circumstances, the signature of a registered voter might not be counted. For example, a registered voter who moves within the same county is still qualified to vote without changing his or her registration prior to the election. See Neb.Rev.Stat. § 32-914.02 (Reissue 1998). However, if a person signed a petition using a new address that did not match the address found in the voter registration records, the signature would not be counted. According to Moore, the signature could not be counted in such circumstances because there would be nothing on the record to prove that the signer was a registered voter.
Erickson further testified that if a person used initials or a nickname not found on the list provided by Moore, the signature would not be counted if it did not match the name shown in the registration records. In addition, Moore's testimony indicated that the failure of a person to write down the name of the city or town his or her address was located in or the ZIP code would likely result in the signature not being counted even if all other information matched the registration records. The guidelines Moore provides to the counties clearly states that if the name of the city or village is left blank, the signature may not be counted.
In a memorandum and order on temporary injunction filed on July 29, 1998, the district court applied the proposition of law that it must "`give a statute an interpretation which meets constitutional requirements if it can reasonably be done.'" The court determined that the requirement that each signer be a registered voter was constitutionally mandated and concluded that the requirements of § 32-1409(1) did not interfere with or impede that mandate. In reaching this determination, the court concluded that § 32-1409(1) did not require an "exact match" of information and that there was no constitutional requirement that signatures on a petition be presumed to be valid. The district court then "ordered" as follows: In an order filed on August 13, the district court stated that The Attorney General filed his notice of appeal with the district court on September 8. On October 21, we issued an order to show cause as to why the appeal should not be dismissed for lack of jurisdiction for failure to meet the 30-day requirement of Neb. Rev.Stat. § 25-1912 (Cum.Supp.1998).
The Attorney General assigns that the district court erred in failing to find that § 32-1409(1) violated article III of the Nebraska Constitution and in failing to apply the correct standard of scrutiny when considering a statute that restricts the initiative petition...
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