LINCOLN — The century-old method of choosing election commissioners for Nebraska’s most populous counties is “constitutionally suspect,” according to an opinion from Attorney General Doug Peterson.
The opinion was issued Tuesday in response to questions posed by State Sen. Matt Hansen of Lincoln. His questions followed up on an issue raised by Civic Nebraska, a Lincoln-based group working to promote civic involvement and protect voting rights.
In the opinion, Peterson concluded that election commissioners and chief deputy election commissioners are county officers and, therefore, under the Nebraska Constitution, must be elected to their positions.
The opinion raises concerns about a state law requiring the governor to appoint election officials for Douglas, Lancaster and Sarpy Counties, the Nebraska counties with more than 100,000 residents.
It also questions a law giving county boards the option to appoint election officials in counties with from 20,000 residents up to 100,000 residents. County boards appoint such officials in Buffalo, Cass, Hall and Platte Counties. Elected county clerks serve as election commissioners in all other 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,” Peterson said.
John Cartier, Civic Nebraska’s director of voting rights, applauded the opinion. He declined to comment about whether election or appointment is a better method of choosing election commissioners.
Rather, he said, the issue is that Nebraska has not been following its Constitution. The state has had a law since 1913 requiring that the governor appoint the election commissioner in a county of a certain population.
“We now hope that this will prompt the Legislature to act quickly on this issue,” Cartier said. “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.”
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If the Legislature does not act, he said, Civic Nebraska would be prepared to file a challenge to current law in court.
Hansen said he plans to introduce legislation to make the election commissioners elected officials. Ideally, he said, the change would be made in time for the 2020 elections. But he said he’s not sure how quickly the switch can be carried out.
Nor has he decided how to address the chief deputy election commissioner positions.
The opinion said chief deputies now fit the definition of county officers, meaning they should be elected. Currently, they are appointed by the election commissioner and must be of a different political party from the election commissioner.
Cartier said one option would be to revise the chief deputies’ statutory job description so that they no longer would be considered county officers and could continue to be appointed.
A spokesman for Gov. Pete Ricketts said the governor was reviewing the opinion.
Secretary of State Bob Evnen, the state’s top election official, said there were “sound policy reasons” for Nebraska choosing to appoint election commissioners.
He noted that the State Supreme Court, although never addressing the constitutionality of the appointment laws, has decided a case involving that section of law. The decision did not suggest that the law might be questionable.
“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,” Evnen said.
Sen. Tom Brewer of Gordon, chairman of the Government, Military and Veterans Affairs Committee, took a cautious approach.
He said that his office is reviewing the decision but that his chief concern is safeguarding the integrity of Nebraska elections. He said the 1913 law was passed to keep elections honest in the state’s most-populous counties.
“We have to ensure that we are following the Constitution and that we are keeping elections honest and secure,” he said.
Douglas County Election Commissioner Brian Kruse, who has held his position for nearly four years, made no comment about the merits of the opinion.
“Regardless of what happens, our office will continue to serve the voters of Douglas County in a fair, nonpartisan manner,” he said.
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A crescent moon sets behind the UNO bell tower on Nov. 6, 2013.
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The sun rises over St. Paul Lutheran Church, located three miles north of Republican City, Nebraska, in March of 2004.
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The sun rises on Chimney Rock on Wednesday, Feb. 19, 2014, near McGrew, Nebraska.
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Horses stand in the snow on Feb. 22, 2018.
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A woman walks with two dogs in Memorial Park near Dodge Street as many sledders go down the hill in Omaha, Nebraska, on Feb. 2, 2016. MATT MILLER/THE WORLD-HERALD