948 N.W.2d 463
Neb.2020Background
- Sponsors submitted three separate initiatives: (1) Constitutional Initiative to amend Neb. Const. art. III, § 24 to permit "all forms of games of chance" when conducted by authorized gaming operators within licensed racetrack enclosures; (2) Regulatory Initiative to enact the Nebraska Racetrack Gaming Act, create a Nebraska Gaming Commission, and amend related statutes (including certain tax/code exclusions); and (3) Tax Initiative to impose a gaming tax (20% of gross gaming revenue) and allocate revenues (including 70% to the Property Tax Credit Cash Fund).
- Opponents objected to all three petitions to Secretary of State Evnen, alleging violations of the single-subject rule (logrolling, hidden effects such as tribal gaming implications, and improper splitting of tax provisions).
- The Secretary reviewed the petitions, concluded each was facially deficient under Neb. Const. art. III, § 2 (single-subject), and withheld all three from the November 3, 2020 ballot.
- McNally and Keep the Money in Nebraska sought a writ of mandamus in the Nebraska Supreme Court to compel placement of the initiatives on the ballot; the court accepted original jurisdiction and issued an alternative writ.
- The Secretary argued the initiatives should be considered together (because they share a common primary purpose) and that individual initiatives violated the single-subject rule (constitutional initiative: two subjects or hidden tribal effect; regulatory initiative: tax breaks unrelated to regulation; tax initiative: logrolling via property-tax allocation).
- The Nebraska Supreme Court held each initiative must be reviewed individually under the "natural and necessary connection" test, rejected the Secretary’s objections, and ordered all three initiatives placed on the ballot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Constitutional Initiative violates the single-subject rule | McNally: focus on text; amendment creates one exception (what) and specifies location (where); single subject | Sec. of State: contains two subjects (authorize gaming and limit to racetracks) and a hidden subject (would authorize tribal gaming) | Court: No violation; "what" and "where" are naturally connected; hidden/remote tribal consequences are beyond preelection single-subject review |
| Whether separate but related initiatives may be considered together for single-subject review | McNally: each initiative must be evaluated separately because voters vote on each separately | Sec. of State: initiatives share a common primary purpose and thus must be considered together | Court: Evaluate each initiative individually; separate-submission allows separate votes, so review focuses on each initiative's text |
| Whether the Regulatory Initiative violates the single-subject rule | McNally: regulatory provisions (including limited tax/code changes) are naturally connected to regulation of gaming | Sec. of State: contains disparate matters (authorization vs. racetrack limit) and tax exemptions not naturally connected to regulation | Court: No violation; initiative regulates a scheme (including locus and related tax/code provisions) and its components have natural and necessary connection to regulation |
| Whether the Tax Initiative violates the single-subject rule (logrolling/property-tax allocation) | McNally: tax imposition and disposition are naturally connected; voters can approve tax separately from authorization/regulation | Sec. of State: tax and property-tax allocation logroll with authorization/regulation; initiatives are interdependent | Court: No violation; imposition and distribution of tax are a single subject; separate initiatives avoid coercing voters into an all-or-nothing choice |
Key Cases Cited
- Christensen v. Gale, 301 Neb. 19, 917 N.W.2d 145 (2018) (natural-and-necessary-connection test for single-subject review)
- State ex rel. Loontjer v. Gale, 288 Neb. 973, 853 N.W.2d 494 (2014) (separate-vote/logrolling analysis for ballot measures)
- State ex rel. Lemon v. Gale, 272 Neb. 295, 721 N.W.2d 347 (2006) (initiative power and interpretation; give effect to initiative rights)
- Stewart v. Advanced Gaming Tech., 272 Neb. 471, 723 N.W.2d 65 (2006) (initiative power must be liberally construed)
- City of North Platte v. Tilgner, 282 Neb. 328, 803 N.W.2d 469 (2011) (municipal-measure standards regarding confusion/doubt)