48 F.4th 561
8th Cir.2022Background
- Nebraska Constitution requires ballot initiatives to meet a total-signature threshold (7% for statutes; 10% for constitutional amendments) and a distribution requirement: signatures must include 5% of registered voters in each of two-fifths of counties.
- Nebraskans for Medical Marijuana (NMM) and Crista Eggers sought to place marijuana legalization initiatives on the 2022 ballot and sued the Nebraska Secretary of State, alleging the distribution requirement violates the Equal Protection Clause by diluting signatures from populous counties.
- The district court granted a preliminary injunction barring enforcement of the distribution requirement; the Secretary appealed to the Eighth Circuit.
- The Eighth Circuit majority held the initiative-placement interest is state-created (not a fundamental right under the U.S. Constitution), applied rational-basis review, and concluded the provision is rationally related to legitimate state interests (e.g., limiting ballot overcrowding), reversing the preliminary injunction.
- Judge Kelly dissented, arguing the distribution rule implicates the fundamental right to ballot access (relying on Moore v. Ogilvie and related precedents), which would trigger heightened scrutiny and support the district court’s injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Nebraska’s signature-distribution requirement burden a fundamental right (triggering heightened scrutiny)? | The initiative/ballot-access process implicates the fundamental right to vote/ballot access; distribution rule dilutes votes and therefore must face heightened scrutiny. | The right to place initiatives on the ballot is created by state law, not the U.S. Constitution; no fundamental right is burdened so only rational-basis review applies. | Majority: Not fundamental; state-created right → rational-basis review applies. Dissent: It implicates ballot access and equal voting weight, so heightened review should apply. |
| If rational-basis applies, does the distribution requirement survive equal protection review? | The rule irrationally dilutes signatures from populous counties and lacks a legitimate state purpose. | The rule is rationally related to legitimate interests (e.g., ensuring initiatives have dispersed support and limiting ballot overcrowding). | Majority: Survives rational-basis review because a lawmaker could rationally conclude the clause furthers legitimate state interests. |
| Did plaintiffs show a sufficient likelihood of success on the merits to justify a preliminary injunction? | Plaintiffs argued they had a plausible constitutional claim and would suffer irreparable harm (their signatures would be diluted for the upcoming election). | Secretary argued plaintiffs had not shown a fair chance on the merits and an injunction would cause serious state harm by disrupting election administration. | Court: Plaintiffs failed to show even a fair chance of success; preliminary-injunction factors (likelihood, equities, public interest) favor the Secretary. |
| Do the balance of harms and public interest support an injunction against enforcing the constitutional provision before the election? | Loss of ballot access and temporally limited opportunity to qualify the initiative constitute irreparable harm; public interest favors preserving constitutional rights. | An injunction would inflict serious, irreparable harm on the State by preventing administration of elections under its constitution; plaintiffs delayed bringing the claim. | Court: Balance favors the State—potential disruption to election administration and plaintiffs’ delay weigh against an injunction. |
Key Cases Cited
- Moore v. Ogilvie, 394 U.S. 814 (U.S. 1969) (invalidating ballot-access rule that discriminated against residents of populous counties under Equal Protection)
- Munro v. Socialist Workers Party, 479 U.S. 189 (U.S. 1986) (state may require preliminary showing of support to qualify for ballot)
- F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307 (U.S. 1993) (plaintiff must negate every conceivable rational basis for a law under rational-basis review)
- Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724 (8th Cir. 2008) (when enjoining government action based on presumptively reasoned democratic processes, movant must show likely success on merits)
- Bernbeck v. Gale, 829 F.3d 643 (8th Cir. 2016) (addressing same Nebraska distribution clause; plaintiff lacked standing so the court did not reach the merits)
- Dobrovolny v. Moore, 126 F.3d 1111 (8th Cir. 1997) (holding right to place initiatives on the ballot is state-created for purposes of certain federal claims)
- Miller v. Thurston, 967 F.3d 727 (8th Cir. 2020) (reiterating initiative access is not guaranteed by the U.S. Constitution though some related rules may implicate federal rights)
- Nken v. Holder, 556 U.S. 418 (U.S. 2009) (balance-of-equities and public-interest factors merge when government is the opposing party)
- Abbott v. Perez, 138 S. Ct. 2305 (U.S. 2018) (recognizing serious harm in barring a state from conducting elections under its constitution)
- Birchansky v. Clabaugh, 955 F.3d 751 (8th Cir. 2020) (explaining equal-protection challenges trigger rational-basis scrutiny unless a suspect classification or fundamental right is implicated)