The Nebraska Supreme Court on Friday affirmed a lower court decision upholding the constitutionality of a state law authorizing the governor to appoint election commissioners in Lancaster, Douglas and Sarpy counties.
The Nebraska Attorney General's Office had sought court review of a Lancaster County District judge's ruling, which ran counter to a nonbinding 2019 opinion by the office calling the law "constitutionally suspect."
It provides for the appointment of election commissioners in counties of more than 100,000 people.Â
In most other counties in the state, they are elected.
The Attorney General argued that election commissioners and their chief deputies are county officers and therefore required under the Nebraska Constitution to be elected.Â
In Friday's 17-page opinion, Supreme Court Justice Jeffrey Funke said: "In affirming the decision of the district court, we conclude that article IX, section 4, respects the Legislature's broad discretion and legislative authority to create and define county offices and officers."
He said after reviewing the law and the record, it was apparent that the Legislature didn't intend for election commissioners and their chief deputies to be recognized as county officers.
They aren't, for instance, included in a statute listing county officers.
The question arose in 2019, when Sen. Matt Hansen of Lincoln asked the AG's office:
* whether election commissioners are county officers under the Nebraska Constitution;
* and, if they are, whether appointing them was a violation of the constitution.Â
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In an opinion that followed Sept. 24, 2019, the office concluded that they were county officers and that state statutes requiring or authorizing their appointment would be found unconstitutional if reviewed by a court.Â
A week later, Gov. Pete Ricketts said he would stop making the appointments, which necessitated turning to the courts to find out.
The AG's office first took the question to the Supreme Court. But when the parties couldn't agree to stipulated facts, the case was dismissed and raised in Lancaster County District Court in a lawsuit filed against the election commissioners and their chief deputies in Lancaster, Douglas and Sarpy counties.Â
At issue was a law dating back to 1913, now known as the Election Act, where lawmakers empowered the governor to appoint election commissioners in certain Nebraska counties based on population. The election commissioner then appoints a chief deputy of the opposing political party.Â
Also at issue was the state constitution, which requires the election of county and township officials.Â
In January, Lancaster County District Judge Lori Maret said election commissioners have been appointed by the governor for more than 100 years.
"This history is relevant not because it is how things have always been done, or even because it has worked well. Rather, this history is important under the well-established rule that legislative interpretation of a statutory or constitutional provision, long acquiesced in, is relevant to construing the meaning of doubtful constitutional provisions," she wrote.
She said she placed great weight on the fact that for more than a century "the Legislature, the executive officers, and the residents of counties with election commissioners have acquiesced in the appointment of election officials."
And Maret found the law constitutional. To rule otherwise would have a broadly sweeping effect, potentially leading to a requirement that a number of other county employees, such as jail matrons, be elected, she said.
Lawmakers could attempt to pass legislation requiring election commissioners to be elected. Hansen, who introduced LB43 to that effect, has said he would wait to ask a legislative committee to take any action on it until after the court process was finished.
"This case has always been about getting clarity on the law," Attorney General Doug Peterson said in a statement. "Although the Attorney General’s Office thought that the Supreme Court’s prior case law required election commissioners to be elected rather than appointed, the court has now weighed in, and we are pleased that the issue is settled.â€