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Comments on First Amendment Challenge to Nebraska Initiative & Referendum Laws

A fellow Northeast Nebraskan by history, Kent Bernbeck became acquainted with Dave Domina through his dad. The first contact was not "friendly." It was professional.

"I represented a contractor in a lawsuit against Kent's dad. The case involved construction of a large commercial facility. Senior Mr. Bernbeck was unhappy with the work. My client was unhappy with not being paid."

A jury decided the case in favor of Domina's client. A week long trial, "was contentious, but professional, courteous, and conducted the way legal disputes should be," Domina recalls. "As a result, I developed respect for the Bernbecks, and I hope they did for me. We have had a cordial relationship ever since."

On July 30, those beginnings matured to a new level. For the second time, Dave Domina filed suit for Kent Bernbeck, challenged portions of Nebraska's laws regulating the initiative and referendum process. In 2011, Domina's efforts furnished Bernbeck with a victory, declaring unconstitutional several features of Nebraska's initiative and referendum law.

"The 2011 ruling struck down a requirement that an eligible petitioner must live in the municipality, political subdivision, or state where the petitioning process occurs." Domina continued, "We claimed this was a fundamental infringement on the right of free speech, as it may be just as important to a resident of Iowa to speak on a subject in a Nebraska community affecting his or her interests, as for a Nebraskan to do so, or vice versa." The United States District Court agreed in 2011. Now, in 2013, the federal court is asked to address two more Nebraska laws governing initiative and referendum.

"Mr. Bernbeck's 2013 case first challenges a section of Nebraska's Constitution that requires successful initiative or referendum petitioners to gather sufficient signatures on a petition to total at least 10% (7% for statute and 10% for a constitutional amendment) of the total votes cast in the last gubernatorial election. But, the constitution adds that the signatures must be distributed so that at least 5% of the voters in at least 40% of the state's 93 counties are signers."

"We contend the geographic distribution requirement is invalid. Simply, it gives more voice to the signer in a sparsely populated county, and it dilutes the signature of a signer in a populous county."

Domina noted in Bernbeck's Complaint filed in U.S. District Court in Omaha, that 40% of the state's population lives in Douglas County (Omaha) and the counties contiguous with it. Eleven of the state's 93 counties are home to fewer than 1,000 people. Effectively this means one petition signature in a county of 1,000 is about 400 times as strong as a single signature of a Douglas County voter.

Other courts have stricken similar state laws elsewhere.

Bernbeck's lawsuit also challenges Nebraska's prohibition against paying petition circulators by the number of signatures they collect.

"We have empirical data, scientifically gathered, and prepared for scientific presentation, to establish that prohibiting payment per signature makes the petition process dramatically more expensive and chills use of the constitutional right." Domina noted that several courts, including the federal court in Colorado most recently, have ruled favorably to the petition taken by Bernbeck in his new federal suit.

Read the Lawsuit Here, Read The Republic Article Here


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