Nebraska Republicans might be planning to undermine an abortion rights amendment
In an innocuous-sounding press release, the Nebraska Secretary of State might have previewed a legal theory to allow the Governor to nullify an abortion rights amendment on the ballot this fall
On Friday, the Nebraska Secretary of State’s office announced that it had certified two separate abortion-related constitutional amendments for the general election ballot. The first, the “Protect the Right to Abortion” amendment, would guarantee to all people “a fundamental right to abortion until fetal viability[.]”1 The second, the “Protect Women and Children” amendment, would limit the right to abortion: “Except when a woman seeks an abortion necessitated by a medical emergency or when the pregnancy results from sexual assault or incest, unborn children shall be protected from abortion in the second and third trimesters.”
At first glance, it seems entirely probable that the measures might conflict with each other. If both were adopted, what would happen?
The Nebraska Constitution answers that question: “If conflicting measures submitted to the people at the same election be approved, the one receiving the highest number of affirmative votes shall thereby become law as to all conflicting provisions.” (Several other states have similar provisions.)
How would we know whether there was a conflict? Secretary of State Bob Evnen suggests—I believe correctly—that this has never before happened in state history. Nationally, there are very few cases in which a conflict is even alleged, much less actually resolved, so examples are pretty sparse.
Yet hidden in the Secretary of State’s press release might be a hint that Nebraska Republicans have a plan to undermine the “Protect the Right to Abortion” amendment.
To begin, it’s helpful to understand the process by which the votes for initiated measures in Nebraska are canvassed and certified. Under Nebraska law, the Board of State Canvassers—which consists of the Governor, Secretary of State, Auditor, Treasurer, and Attorney General—receives county-level results and aggregates the votes together to calculate a statewide total. The Governor then issues a “proclamation” as to which measures passed “within ten days after the official canvass.”
The Governor’s proclamation is legally necessary for the measure to come into effect, but it doesn’t give the Governor the power to exercise any independent judgment. His obligation is, quite simply, to announce, based on the statewide canvass, which measures passed.
And while it has never happened before in Nebraska that two conflicting amendments have been adopted in the same election, section 32-1414 of Nebraska Revised Statutes further explains that, “[i]f two or more measures are approved at such election which are known to conflict with each other or to contain conflicting provisions, the Governor shall also proclaim which is paramount[.]”
Read in context, the procedure described in section 32-1414 makes sense. The Governor issues a proclamation for all initiated measures, and if two of them are known to conflict, then also clarifies which one received “the highest number of affirmative votes.”
Yet the Secretary of State’s office reads all of this differently. In Friday’s press release, it claims that “[t]he Governor is responsible for determining whether there is a conflict” between two amendments alleged to conflict (emphasis added). In support of that claim, the office cited to section 32-1414.
But the Governor’s power to simply proclaim which amendment received the most votes cannot possibly be understood to give him the power to decide if there is a conflict. Even in the context of the statute itself, that’s not the order of operations. Section 32-1414 refers to amendments that “are known” to either “conflict” or “contain conflicting provisions” (emphasis added).
The Governor’s power is much narrower than that. The responsibility to summarize what the vote totals say is a ministerial responsibility—that is, one in which there is no discretion to be exercised. (And that’s not me saying that; that’s how the Nebraska Supreme Court has explained that power since the nineteenth century.2) But determining if there is a conflict is a discretionary task—it is not an automatic, mechanical procedure, because it requires the exercise of judgment.
Because this all seemed implausible, I called the press contact listed on the press release on Friday, and followed up by email. In relevant part, this is what my email said:
My specific concern is that the statute cited does not support the assertion made in the sentence. Neither 32-1414 nor -1416 give the governor the authority to determine if there is a conflict—merely to declare, where it is “known” that there is a conflict, which measure received the most votes in its favor.
On Tuesday evening, I received this response:
Secretary Evnen is declining to respond because this issue is facing litigation. As an alumni of MSU himself, he would like to engage this conversation with you but does not want to dive into this given the pending litigation.
In short, the Secretary’s office basically confirmed that its factual claim—that the Governor has the power to determine if a conflict exists—was not a mistake or error, and was a purposeful decision.
But from there, the roadmap toward causing trouble is ambiguous—and could play out in one of two ways. If both amendments are adopted, and the abortion-rights measure receives more votes, then the Governor would have an incentive to say that the measures don’t conflict—and must be read together. If the anti-abortion measure receives more votes, then the Governor might say that they do conflict, and the anti-abortion one controls.
But these outcomes are entirely dependent on both amendments passing and the Secretary of State’s interpretation of the Nebraska Constitution and Nebraska Revised Statutes being correct. And if that is what section 32-1414 means, then it’s very likely unconstitutional under the Nebraska Constitution. The Governor is not entitled to inflate his ministerial task to declare which amendments passed into a discretionary task to decide if there is a conflict among amendments.
It’s unclear how all of this will play out, but it’s a deeply concerning hint at yet another effort to undermine direct democracy.
The full text reads: “All persons shall have a fundamental right to abortion until fetal viability, or when needed to protect the life or health of the pregnant patient, without interference from the state or its political subdivisions. Fetal viability means the point in pregnancy when, in the professional judgment of the patient’s treating health care practitioner, there is a significant likelihood of the fetus’ sustained survival outside the uterus without the application of extraordinary medical measures.”
Specifically, in State v. Elder, the Court described the canvassing power as “the ministerial duty of opening and publishing these returns,” 47 N.W. 710, 714 (Neb. 1891) (emphasis added), a characterization that the court affirmed in State ex rel. Oldham v. Dean, 121 N.W. 719, 727 (Neb. 1909).