Nebraska Wins on Ballot Initiative Requirement

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By Patrick Gregory

July 18 — A 14th Amendment challenge to a Nebraska ballot initiative requirement failed for lack of standing, the U.S. Court of Appeals for the Eighth Circuit ruled July 14 ( Bernbeck v. Gale, 2016 BL 225792, 8th Cir., No. 15-1983, 7/14/16 ).

Nebraska requires initiative petitions to have “signatures of at least 5% of the registered voters of each of two-fifths of Nebraska's counties in order to be placed on the statewide ballot,” the court said.

Kent Bernbeck lacked standing to challenge it because he “never submitted a signed petition” for his ballot initiative, the decision by Judge C. Arlen Beam, joined by Judge Bobby E. Shepherd, said.

Enforcement of the requirement against Bernbeck was therefore impossible, the court said.

Bernbeck consequently failed to show an “imminent threat of enforcement” needed to establish standing.

The district court had found that the signature-distribution requirement violated the 14th Amendment by diluting Bernbeck's right to vote.

The decision vacated the district court and remanded the case for dismissal without prejudice.

Dissenting, Judge Jane Kelly said Bernbeck established standing by submitting “a sworn statement and sample initiative petition” to Nebraska Secretary of State John Gale, the defendant here.

Domina Law Group represented Bernbeck.

The Nebraska attorney general's office represented Gale.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at and Jeffrey D. Koelemay at

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