Current appointment, rather than election, of election commissioners in Lancaster, Douglas and five other counties is "constitutionally suspect," Attorney General Doug Peterson has concluded.
The attorney general's opinion, provided in response to a request from Sen. Matt Hansen of Lincoln, was hailed by Civic Nebraska, which had argued that county election officials should be elected and not appointed.
Election commissioners in Lancaster, Douglas and Sarpy counties are appointed by the governor.
County boards currently make those appointments in Buffalo, Cass, Hall and Platte counties.
"It is our view that the statutes providing for the appointment of election commissioners and chief deputy election commissioners would, if challenged, be held unconstitutional by the Nebraska Supreme Court," the attorney general's opinion stated.
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Secretary of State Bob Evnen, the state's chief elections official, said gubernatorial appointment of some county election commissioners dates to 1913 and he believes "there were sound policy reasons supporting the enactment of the appointment statutes.
"They remain the law unless and until they are overturned by our courts or legislation is enacted that changes these statutes," Evnen said.
"I am committed to following the law and I intend to continue to observe these long-standing statutes as long as they are in place."
In most Nebraska counties, the duties of a election commissioner are handled by an elected official, typically a county clerk.Â
Hansen said he will introduce legislation next year to make the change to an elective office in all counties.
"Ideally, there would be a transition into the next election," he said, "but that timeline might be hard."
Hansen said he has not spoken to fellow legislators yet to gauge support for the change.
"I plan to reach out to colleagues now and hopefully we can achieve some consensus," he said.Â
"With the 2020 elections approaching, this matter should be addressed in a pragmatic way that will give citizens back their right to elect those who conduct elections in their counties," said John Cartier, director of voting rights for Civic Nebraska.
If the Legislature fails to act, Cartier said, Civic Nebraska would be prepared to legally challenge the standing of the unelected officials in a court filing.
"It has always been the right of Nebraska citizens to choose the officials who run their elections," he said. "And it is vital that all of Nebraska's elections are administered by officers that are chosen in accordance with the Nebraska Constitution."