A ballot proposal to repeal a novel conservative-backed law requiring taxpayer funding of private school tuition will be on the state’s ballot in November, the state Supreme Court ruled Friday.
The court found that the voting proposal does not aim at an appropriation that is prohibited by law
The ruling came just days after the state’s highest court heard arguments Tuesday in a lawsuit filed by an eastern Nebraska woman whose child received one of the first private school scholarships made available under the novel law. In her suit, she argued that the referendum violates the state constitution’s ban on popular initiatives revoking appropriations for government functions.
An attorney for the referendum initiative countered that the ballot question was appropriately aimed at creating a private school tuition program, not the accompanying $10 million budget proposal.
Nebraska Republican Secretary of State Bob Evnen certified the repeal measure last week after noting that petition organizers had collected thousands more valid signatures than the nearly 62,000 needed to put the repeal question on the ballot.
But in a last-minute brief filed in the state Supreme Court before Tuesday’s hearing, Evnen indicated that he believed he had made a mistake and that “the referendum was not legally sufficient.”
The brief further stated that Evnen intends to withdraw his certification and not put the motion to quash to a vote unless the Supreme Court specifically orders it to be upheld.
If Evnen were to make good on that declaration, repeal organizers would have just hours to sue and try to get the law back on the ballot. The deadline for Evnen to certify the ballot for the general election is Friday.
A lawyer for the organizers of a repeal of the law, Daniel Gutman, had argued before the Supreme Court that there were no provisions in the state legislature that allowed the Secretary of State to revoke the final certification of a popular initiative once it had been passed.
A similar scenario played out this week in Missouri, where Republican Secretary of State Jay Ashcroft certified a bill in August asking voters to repeal the state’s near-total abortion ban. On Monday, Ashcroft reversed course, saying he would no longer certify the bill and remove it from the ballot.
On Tuesday, the Missouri Supreme Court ordered Ashcroft to put the bill back on the ballot.
The Nebraska Supreme Court’s decision follows a long battle over private school funding. Public school advocates successfully collected signatures over the summer to ask voters to reverse the employ of public money to pay for private school tuition.
It was her second successful petition drive. The first came last year when Republicans, who dominate Nebraska’s officially nonpartisan legislature, passed a law allowing businesses and individuals to divert millions of dollars they owe in state income taxes to nonprofit organizations. Those organizations would then award the money as scholarships for private school tuition.
Support Our Schools collected far more signatures than it needed to ask voters to repeal the law last summer. But lawmakers who support the private school funding bill circumvented the referendum by repealing the original law and replacing it with another funding bill earlier this year. The novel law eliminated the tax credit system and simply funds private school scholarships directly from the state treasury.
Since this move repealed the first law, last year’s successful petition was also rendered meaningless. The organizers had to collect signatures again to stop the funding program.
Nebraska’s novel law follows the example of several other conservative Republican states – including Arkansas, Iowa and South Carolina – and introduces forms of private school choice, from education vouchers to education savings programs.
