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Nebraska's Supreme Court on Friday unanimously struck down a legal challenge that sought to prevent state voters from weighing in this November on a new law that sets aside $10 million of state funds for private school scholarships.

In a 14-page ruling issued Friday morning, the court's seven justices rejected the conservative-backed legal challenge that sought to block the referendum over the new law from appearing on November's ballot.

The expedited ruling — which came on the same day state law requires Nebraska's general election ballot to be certified — came just over a week after a Douglas County mom backed by a pair of law firms challenged the bid to repeal LB1402, which established Nebraska's latest state-funded private school scholarship program.

Public school advocates backed by Nebraska's largest teachers union gathered more than 60,000 signatures this summer in support of a ballot measure that, if approved by voters, would repeal the portion of LB1402 that established the program.

Nebraska's top election official announced late last month that the effort to repeal the law would appear on November's ballot, prompting the legal challenge in which attorneys argued the referendum effort against the law violates a portion of the state's constitution that prevents voters from repealing laws that make "appropriations for the expense of the state government" or a state institution.

In Friday's ruling, though, the Supreme Court rejected that argument, finding that LB1402 "makes no appropriation at all" and can therefore be subject to a referendum vote.

The ruling paves the way for the referendum to appear on November's ballot — and marks a win for Support Our Schools Nebraska, the teachers union-backed group behind the effort to repeal LB1402 that has gathered thousands of signatures across the state twice in just over a year in two separate efforts to halt so-called "school choice" programs from taking hold in the state, blasting the policies as voucher schemes that threaten public school funding.

Tim Royers, the president of the Nebraska State Education Association, which has led the fight against the Legislature's efforts to use state funds for private school scholarships, said Friday that the group is "thrilled" with the court's ruling.

"The Supreme Court took a very clear step to defend Nebraskans' rights to refer acts of the Legislature to the ballot," Royers told the Journal Star. "Obviously, we're happy that our issue is on the ballot, but we were also concerned about what precedent this could set with what our opponents were trying to argue in this case."

In a statement, Tom Venzor, who represented the referendum's challenger in court and who as the executive director of the Nebraska Catholic Conference, said the decision "hurts the children and families who need support the most— those facing hardships such as bullying, disabilities or the unique challenges of military life."

"Families already struggling to find resources for their children are now left with an uncertain future," Venzor said. "As always, the Nebraska Catholic Conference stands at the ready to advance school choice programs for our low-income families and other families in need."

Arguments made this week

Nebraska's Supreme Court heard arguments from both sides at a hearing Tuesday, when the court seemed broadly skeptical of the legal arguments offered by Venzor, the attorney for Latasha Collar, who filed the legal challenge last week and whose daughter has received a state-funded scholarship to attend a private school in Omaha.

In front of the high court, Venzor argued that LB1402 "clearly constitutes an appropriation for an expense of state government and is therefore not subject to referendum."

The that the referendum seeks to repeal establishes eligibility requirements and sets up the framework of the scholarship program while stating "the intent of the Legislature to appropriate" $10 million annually to be used for the scholarships.

A separate "appropriation" bill, , formally moves the state dollars from Nebraska's General Fund to the state treasurer to be used for the program. The Legislature votes on so-called "A" bills independently from the bills that accompany them.

Justice Lindsey Miller-Lerman, later joined by other justices, repeatedly seized upon that difference at Tuesday's hearing, questioning Venzor over whether the attempt to repeal LB1402 is actually an attempt to repeal an appropriation, since LB1402A — which is not set to be voted on in November — is the bill that actually transfers money to fund the scholarships.

"If 1402A didn't exist, would money be forthcoming?" Miller-Lerman asked.

"Well, 1402A and 1402 are just basically interwoven and intertwined, because it's 1402 and the language that's in that bill that triggers the appropriation that ...," Venzor started, before another justice interjected with a similar question.

"Are they the same act?" Justice Jonathan Papik asked.

In Friday's ruling, the court settled that question, finding that LB1402 is subject to a referendum since the standalone bill doesn't transfer any state dollars, leaving the Secretary of State with "no duty to withhold the referendum based on (the) alleged violation" of the state's constitution.

The ruling paves the way for the referendum to remain on November's ballot — a fate that seemed at jeopardy Monday when Secretary of State Bob Evnen, a Republican who last had certified that the referendum met the legal requirements to appear on November's ballot, reversed course in a court filing.

In the filing, Evnen's attorneys said the state's top election official was siding with Collar's attorneys' argument and and threatening to pull the referendum from the ballot if the Supreme Court had dismissed Collar's legal challenge on procedural grounds this week.

Attorneys for Support Our Schools had argued in a legal brief that Collar's legal challenge to their referendum wasn't properly verified because it was signed by a Texas notary, not one in Lancaster County, where the petition was notarized.

The Supreme Court, though, dismissed the challenge not on procedural grounds, but on its merits — a ruling that Evnen indicated in this week's court filing he would accept. 

"If this court rules on the merits of Collar’s arguments, Secretary Evnen will of course abide by that judgment," his attorneys wrote Monday.

In a concurring opinion alongside the court's unanimous order, Chief Justice Michael Heavican questioned whether Evnen would have the authority to decertify the referendum even if he intended to.

"I am aware of no process by which the secretary can change his mind and rescind his legal sufficiency determination and not place the referendum on the ballot," Heavican wrote.

Evnen's office certified the general election ballot — with the referendum on it — Friday afternoon.

The state's top election official had faced criticism over his attempt to reverse his certification of the referendum, including from Royers, who called Evnen "incapable of separating his personal political beliefs with his obligation to serve the public."

Speaking to reporters in the Rotunda on Friday, Evnen said the court's opinion and concurrence included clear guidance for his work certifying elections moving forward.

"I intend to follow the advice given in the concurrence," Evnen said, later declining to speculate what he would have done had the courts remained silent on the matter.

"If things were different, would it be different? Yes, but I don't know, I can't answer that," he said. "I will say that I thought the concurrence provided us with a good direction."

Now, after the court's ruling, Royers said Support Our Schools feels "vindicated."

"After two long years of fighting to get this issue on the ballot, it's just — it's nice to have a definitive answer that we will, in fact, be on the ballot," he said.