State Senator Lou Ann Linehan has hatched a constitutional argument that could spare the Governor’s private school tax credit legislation, known as the Opportunity Scholarships Act, from a voter decision on the 2024 ballot.
Sen. Linehan — at the request of Governor Jim Pillen last year — introduced and spearheaded LB 753 successfully through the Nebraska legislature, to much controversy. The bill passed 33 to 11.
Back in August, the petition campaign ‘Support Our Schools Nebraska’ submitted over 117,000 signatures (almost double the required amount) to the Secretary of States office to place the ‘school choice’ bill before voters on the November 2024 ballot. Secretary Bob Evnen certified the petition campaign shortly after.
Now Sen. Linehan, chair of the Legislature’s Revenue Committee, has asked Secretary of State Bob Evnen to reject the referendum petition, characterizing the initiative as “unconstitutional.”
In a letter to Evnen, Linehan argued, “Nebraska’s constitution explicitly places the power of taxation in the hands of the Legislature. While I respect the petition process including the power of referendum, if this existing revenue measure adopted by the Legislature (LB 753) can be repealed by referendum, the ability to set revenue policy would be undermined. Based on a plain reading of Article VIII (8) Section 1 of the Nebraska Constitution and the arguments made in the attached letter the referendum seeking repeal of Legislative Bill 753 should be rejected by your office as unconstitutional.”
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.“
Linehan said on the matter, “The Opportunity Scholarships Act, LB 753, is a tax credit scholarship program. It’s a revenue measure. We have to follow the Constitution. And the Constitution is clear. The people of Nebraska have vested Revenue power in the Legislature. I respect the petition process but the constitution cannot be ignored.”
Official with Support Our Schools Nebraska, and President of the Nebraska State Education Association, Jenni Benson issued a statement following Sen. Linehan’s letter to the Nebraska Secretary of State:
“Nebraskans have made it very clear they want to vote on whether to divert tax dollars to private schools. The Secretary of State certified and has made clear that the Repeal LB753 referendum petition met all statutory and constitutional requirements to put this issue on the ballot for the voters to decide.”
Benson continued, “Sen. Linehan has made it clear that she and her billionaire buddies are afraid to let Nebraskans vote on whether to repeal LB753. They failed miserably in their attempt to derail the petition drive. They will attempt everything they can to try to deny Nebraska voters the right to vote on this issue… Support Our Schools Nebraska will not back down from Linehan, Michigan billionaire Betsy DeVos or any others who seek to impose their will on Nebraska voters.”
This development does raise questions regarding the constitutionality of the Secretary Evnen’s certification, as Sen. Linehan’s argument, if true, would have disqualified the petition from being filed in the first place.
Secretary Evnen, if he sides with Linehan, would seemingly be making the concession that his certification was unlawful. This would corner the Secretary into de-certifying an already substantiated petition campaign and yank the referendum from the November ’24 ballot after a valid number of Nebraskans have voiced they would like a say on the matter.