Nebraska’s election chief may attempt to remove ballot on school funding repeal

The Nebraska Supreme Court is on the verge of deciding whether voters will have the opportunity to reject a newly enacted law that allows taxpayer funding for private school tuition. The situation is particularly concerning because the Nebraska Secretary of State could ultimately prevent voters from having that choice, depending on the court’s ruling.

Arguments were presented before the court on Tuesday in a case initiated by a woman from eastern Nebraska. Her child benefited from one of the first scholarships offered under this new law. Lawyer Tom Venzor, representing the woman, argued that the initiative to repeal this funding is in violation of the state constitution, which prohibits voter initiatives from overturning legislative appropriations.

In response, Daniel Gutman, the attorney advocating for the referendum, asserted that the ballot question specifically targets the establishment of the private school tuition program and not the accompanying appropriations bill of $10 million.

However, the focus shifted to a significant claim made by lawyers from both sides regarding the intentions of Republican Secretary of State Bob Evnen. They indicated that Evnen plans to decertify the ballot question shortly after initially certifying it, unless the Supreme Court mandates that it remain on the ballot.

Last week, Evnen certified the measure for repeal after determining that petition organizers collected thousands of valid signatures beyond the required nearly 62,000. Nevertheless, on the afternoon before the court’s hearing, a brief released by the Nebraska Attorney General’s office suggested that Evnen had reassessed the situation, claiming he found the referendum to be “not legally sufficient.”

The brief further noted that if the Nebraska Supreme Court did not address the substance of the challenge and chose to dismiss the case on procedural grounds, Evnen would promptly revoke his determination regarding the legal sufficiency of the referendum and would stop it from appearing on the ballot.

When asked if state law permits a secretary of state to withdraw certification from a previously certified ballot measure, Gutman expressed uncertainty, stating there is “nothing in the statutes that we’re aware of that says that he can revoke that decision.”

He highlighted a pressing concern that the November ballot must be finalized by an approaching Friday.

“I think that his threat of revoking the decision threatens the credibility of certification generally,” Gutman remarked. “Our genuine worry is that if this court dismisses this case on a jurisdictional basis, or solely for procedural reasons, there could be a decertification issued on Friday afternoon, leaving us without recourse.”

Evnen did not confirm or deny his intentions regarding the potential removal of the private school tuition repeal measure from the ballot, instead stating, “What we need now is a decision on the merits from the Nebraska Supreme Court.”

A comparable situation unfolded recently in Missouri, where Republican Secretary of State Jay Ashcroft had approved a ballot measure intended to allow voters to overturn the state’s stringent abortion ban. However, on Monday, Ashcroft retracted his earlier decision, declaring the measure decertified.

The Missouri Supreme Court intervened on Tuesday, ordering Ashcroft to reinstate the measure onto the ballot.

This controversy arises amid an ongoing struggle over the private school funding topic. Advocates for public schools successfully gathered signatures this past summer in an effort to prompt voters to overturn the use of public funds for private education. This marked their second successful petition drive.

The first petition campaign took place last year when the Nebraska Legislature, dominated by Republicans, passed a law allowing taxpayers to redirect a portion of their income taxes to nonprofit organizations. These organizations would distribute those funds as private school tuition scholarships.

Despite securing sufficient signatures to challenge that law, supporters of the private funding initiative circumvented the ballot measure by repealing the original law and substituting it with a new funding mechanism earlier this year. The updated law eliminated the tax credit system and instead allocated public funds directly to private school scholarships.

This legislative maneuvering effectively nullified the prior successful petition, compelling organizers to initiate another signature-gathering effort to halt this funding plan.

Nebraska’s new law aligns with trends seen in several conservative states, including Arkansas, Iowa, and South Carolina, which have implemented variations of private school choice programs, ranging from vouchers to education savings accounts.