Bernbeck v. Gale

58 F.Supp.3d 949

Kent BERNBECK, Plaintiff

v.John A. GALE, Nebraska Secretary of State, Defendant.

No. 8:13CV228.

United States District Court, D. Nebraska.

Signed Nov. 10, 2014.

David A. Domina, Megan N. Mikolajczyk, Domina Law Group, Omaha, NE, for Plaintiff.

Dale A. Comer, L. Jay Bartel, Attorney General's Office, Lincoln, NE, for Defendant.

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, Senior District Judge.

This matter is before the court on the stipulated record of the parties. See Filing No. 47. The parties additionally offered eleven exhibits, including relevant statutes, legislative history, the petitions, and census data. Plaintiff also filed a third declaration of Kent Bernbeck, and defendant submitted an affidavit of L. Neal Erickson. The court finds the following facts and conclusions of law.

FINDINGS OF FACT

Plaintiff Kent Bernbeck and defendant John A. Gale, Nebraska Secretary of State, stipulate and agree that the following facts are true and that this stipulation and the agreed upon documents may be received as evidence without any objection, other than on the basis of relevancy.¹

1. Plaintiff Kent Bernbeck is a citizen and resident of the State of Nebraska. Mr. Bernbeck has resided in Douglas County, Nebraska, since 2009. Prior to that time, Mr. Bernbeck lived in Lincoln, located in Lancaster County, Nebraska, for approximately fifteen years. Mr. Bernbeck has resided in Nebraska since the age of three, and was raised in Stanton County, Nebraska.

2. Defendant Secretary John A. Gale, in his official capacity, is and was at all pertinent times the duly elected and acting Secretary of State of the State of Nebraska. Secretary Gale was appointed to the office of Secretary of State in December 2000, and elected to the office in 2002. Secretary Gale was reelected to the office of Secretary of State in 2006 and 2010.

3. Under the Nebraska Election Act, Neb.Rev.Stat. §§ 32–101 to 32–1551 (2009, Cum. Supp. 2012 and Supp. 2013) [the “Act”], Secretary Gale supervises the conduct of primary and general elections in Nebraska, and enforces the Act. He is also the State's chief election officer. Secretary Gale also performs and is responsible for certain duties related to the statewide initiative and referendum petition process established pursuant to Neb.Rev.Stat. §§ 32–1401 to 32–1416 (2008). The Secretary is responsible for oversight and implementation of requirements concerning the numbers of initiative and referendum petition signatures necessary to be placed on the ballot for statewide initiative and referendum petitions. Secretary Gale is sued in his official capacity only.

4. Mr. Bernbeck has sponsored or co-sponsored five statewide initiative petitions in Nebraska and has provided consultation or assistance on four others. Mr. Bernbeck has been a plaintiff in previous cases involving the rights of initiative and referendum in Nebraska, including Bernbeck v. Gale,

U.S. Dist. Ct. No. 4:10cv3001 (D.Neb.) and Bernbeck v. Moore, 126 F.3d 1111 (8th Cir.1997).

5. Mr. Bernbeck filed a statement with Secretary Gale on January 25, 2012, along with co-sponsors Mike Groene and Mark Schneiderjans, as sponsors of an initiative petition for a constitutional amendment to lower the signature threshold requirements for initiative and referendum petitions in Neb. Const., art. III, §§ 2 and 3. A true and correct copy of that statement and sample initiative petition is attached as Exhibit A. No signed petitions for this proposed measure were filed with Secretary Gale for signature verification.

6. Mr. Bernbeck filed a sworn statement with Secretary Gale on July 23, 2012, to sponsor an initiative petition for a constitutional amendment to lower the signature threshold requirements for initiative and referendum petitions in Neb. Const., art. III, §§ 2 and 3. A true and correct copy of that sworn statement and sample initiative petition is attached as Exhibit B. No signed petitions for this proposed measure have been filed with Secretary Gale for signature verification.

7. Mr. Bernbeck simultaneously circulated multiple initiative petitions in Nebraska cities and towns seeking to place municipal initiative issues on the ballot. Mr. Bernbeck was the sponsor of one such municipal initiative petition filed in 2012 with the Clerk of the Village of Denton, Nebraska. After Mr. Bernbeck filed completed, signed initiative petitions with the Clerk of the Village of Denton, the Village filed a complaint in State District Court asking the court to determine the validity of the initiative petition. The State District Court found the Village was not required to place the initiative petition on the ballot, finding three signatures were invalid because a circulator was paid on a per-signature basis to obtain three signatures in violation of Neb.Rev.Stat. §§ 18–2517 and 32–630(3)(g), and that, after invalidation of these signatures, the initiative petition had only thirteen valid signatures and thus did not meet the threshold of sixteen signatures required for the measure to be placed on the ballot.

8. The United States Census Bureau [“Bureau”] estimates that Nebraska's 2012 population was 1,855,350, and that Nebraska's 2013 population was 1,868,516. A true and correct copy of the Nebraska QuickFacts page from the Bureau's website at http:/quickfacts.census.gov/qfd/states/31000.html is attached as Exhibit C.

9. Nebraska has 93 counties. The Bureau's estimate of the population of Douglas County, Nebraska, as of July 1, 2012, is 532,265. Based on this estimate, Douglas County is home to approximately 28.68 percent of the population of Nebraska. Douglas County is adjacent to the County of Sarpy. Sarpy County's estimated 2012 population is 165,853 persons, or 8.93 percent of the State's population. Douglas County is also contiguous with Dodge County. Dodge County's estimated 2012 population is 36,427 or 1.963 percent of the State's population. Washington County is also contiguous with Douglas County. Washington County's estimated 2012 population is 20,252, or 1.1 percent of the State's population. Saunders County is also contiguous with Douglas County. Saunders County's estimated 2012 population is 20,823 or 1.1 percent of the State's population. Of Nebraska's 93 counties, 41.77 percent of its 2012 estimated population lives in five counties—Douglas, Sarpy, Saunders, Dodge, and Washington. Attached as Exhibit D is a true and correct copy of population estimates for each of Nebraska's 93 counties as of July 1, 2012, from the Bureau's website at http://factfinder2.census. gov/bkmk/table/1.0/en/

PEP/2012/PEPANNRES/0400000US31.05000.

10. Based on the Bureau's estimated population data for Nebraska counties as of July 1, 2012, sixty-six counties have populations under 10,000 persons each. Twelve Nebraska counties have estimated populations of fewer than 1,000 persons each.

11. The distance across Nebraska, measured by the traveling distance on Interstate 80, is 454.15 miles from the easternmost exit onto Interstate 80 in Douglas County, Nebraska, where plaintiff resides, to the westernmost exit, Exit 1, located .48 miles east of the Nebraska–Wyoming border at Pine Bluffs, Wyoming. Measured by travel on U.S. Highway 81 from Chester, Nebraska, on the Kansas border, to South Yankton, on the South Dakota border, the distance is 217.5 miles. The driving time from border to border within Nebraska from north to south is estimated at 3 hours 50 minutes, and at Interstate speeds the travel time from the Pine Bluffs, Wyoming, exit to the western edge of Council Bluffs, Iowa, is estimated at 6 hours 30 minutes.

12. Neb. Const. art. III, § 2, requires that, for initiative petitions, “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.” Neb. Const. art. III, § 3, requires that “[p]etitions invoking the referendum shall be signed by not less than five percent of the registered voters of the state, distributed as required for initiative petitions....” These provisions require that an initiative or referendum petition must be circulated in at least 38 of 93, or 40 percent, of Nebraska counties.

13. The initiative and referendum powers first became part of the Nebraska Constitution in 1912 following approval by the voters of Nebraska. A true and correct copy of these constitutional provisions is attached as Exhibit E.

14. Following the Constitutional Convention of 1919–20, the voters of Nebraska approved an amendment (No. 4) to the initiative and referendum powers in the Nebraska Constitution. A true and correct copy of these amended constitutional provisions is attached as Exhibit F.

15. The voters of Nebraska approved an amendment to the initiative and referendum powers in the Nebraska Constitution by approval of 1988 Neb. Laws LR 248, § 1. A true and correct copy of these amended constitutional provisions is attached as Exhibit G.

16. In 1998, the voters of Nebraska approved an amendment to the initiative and referendum powers in Neb. Const. art. III, §§ 2 and 3, by approval of 1997 Neb. Laws LR 32CA, §§ 1 and 2. A true and correct copy of these amended constitutional provisions is attached as Exhibit H.

17. In 2004, the voters of Nebraska approved an amendment to the initiative power in Neb. Const. art. III, § 2, by approval of Initiative Measure No. 418, § 1. A true and correct copy of the amended constitutional provision is attached as Exhibit I.

18. Attached as Exhibit J is a true and correct copy of the current Nebraska Constitutional provisions (Neb. Const. art. III, §§ 2 through 4 ) governing the powers of initiative and referendum.

19. Attached as Exhibit K is a true and correct copy of pages 264 and 265 of the 2012–13 Nebraska Bluebook, Vote on Initiated and Referred Measures, 1914–2012. Filing No. 48, at 1–6.

CONCLUSIONS OF LAW

The court first notes that it has jurisdiction over this case pursuant to 28 U.S.C. § 1331, as this involves the First Amendment to the...