Notwithstanding arguments that a ballot referendum on Nebraska’s Private School Tax Credits legislation would violate the states constitution, the Secretary of State’s office has decided to allow voters to decide the legislation’s fate on the 2024 General Election ballot.
State Senators approved the controversial Opportunity Scholarships Act (LB753) last session on a 33-11 vote. The bill was one of Governor Jim Pillen’s 2023 legislative priorities, introduced and championed by State Senator Lou Ann Linehan of Elkhorn. The bill provides $25 million for tax credit reimbursements to businesses or individuals who donate to private school scholarship organizations, with the threshold upping to $100 million in 2026.
Shortly after Pillen signed the bill into law, a group of public school advocates named ‘Support Our Schools Nebraska’ launched a petition drive to repeal the legislation, saying the bill would give millions in taxpayer money to fund unaccountable private schools that can intentionally discriminate against kids based on race, gender, sexual orientation, religion, and disability.
The campaign was successful and delivered over 117,000 signatures to the Secretary of State’s office after just 90 days of canvassing, almost double the required minimum to place the decision in the hands of voters on the November 2024 ballot. Secretary of State Bob Evnen certified the referendum petition last October.
At the turn of the new year, Sen. Linehan sent a letter to Evnen asking him to reject the referendum petition, characterizing the initiative as “unconstitutional.” Her arguments rested on a reading of the Nebraska constitution which explicitly places the power of taxation in the hands of the Legislature. Additionally, Sen. Linehan cited Nebraska Revised Statute 32-1408, which states “The Secretary of State shall not accept for filing any initiative or referendum petition which interferes with the legislative prerogative contained in the Constitution of Nebraska that the necessary revenue of the state and its governmental subdivisions shall be raised by taxation in the manner as the Legislature may direct.”
In response, ‘Support Our Schools Nebraska’ petitioned Evnen to reject Linehan’s request for two reasons. First, they said Linehan’s request raises substantive constitutional challenges which require a court decision and cannot be given proper pre-election review. Second, that “Her attempt to limit the people’s referendum right is foreclosed by the plain text of the Constitution, which reserves to the people the right to repeal “any act” of the Legislature. Further, the Senator’s reliance on revenue generating provisions is misplaced because LB 753 reduces the state’s revenue through corporate and individual tax breaks. Senator Linehan’s arguments are without merit, and you should reject them as a matter of law,” said the attorney’s letter.
On leap year day 2024, Evnen issued a decision on the legal sufficiency of the referendum petition, saying “I have concluded that the Referendum is legally sufficient and should be placed on the 2024 general election ballot.”
In the letter, sent to Linehan and referendum supporters, Evnen weighed legal arguments put forth by supporters and opposition, relevant revenue statues, constitutional articles, legal precedence, and concluded that the constitutional questions raised were “not within my purview to decide.”
Addressing whether matters of state revenue are the Legislature’s sole prerogative, Evnen said, based on his reading, the referendum may be blocked. “But there is more to consider,” he wrote. His interpretation hinged on the Attorneys General’s view that the referendum would have to “completely destroy or emasculate the taxing authority of the Legislature” to be rejected under that logic.
Further, Evnen cited that the Nebraska Supreme Court has held that the power of referendum must be liberally interpreted to promote the democratic process, “that the power is precious to the people and is one in which the courts are zealous to preserve to the fullest tenable measure.”
“I will place the referendum on the ballot unless otherwise ordered by a court of competent jurisdiction,” Evnen signed.
Support Our Schools Nebraska Board member Jenni Benson reacted to the Evnen decision, “This decision reflects the will of Nebraskans and the work of our 1,900 volunteer petition circulators. Nebraskans have been clear that they want to vote on the issue of diverting public tax dollars to fund private schools. State lawmakers also must respect voters on this issue and reject new legislative attempts to impose voucher schemes on Nebraska taxpayers.”