Hessick is a law professor at the University of North Carolina-Chapel Hill, where she also serves as the director of the Prosecutors and Politics Project. Rodney is a UNC law student and a research associate at the Prosecutor and Politics Project.
As the 2020 presidential election approaches, polls reveal a tight contest between the two candidates, reminding us that every vote matters. But when it comes to electing county attorneys, many Nebraskans votes don’t matter at all. The vast majority of Nebraska’s county attorneys run unopposed in their elections, and some counties don’t have a single candidate run for the office.
Voters should have a choice in their county attorney elections because Nebraska’s county attorneys are incredibly powerful actors in the legal system. County attorneys control key steps in the criminal justice system, such as whether to prosecute a criminal case, when to refer individuals to a crime prevention program, and under what circumstances to offer a plea bargain. County attorneys also perform important functions in the civil justice system, including advising county officials, representing their county in civil actions and enforcing child support orders.
These important decisions often require county attorneys to use their personal judgment or adopt policies. Having county attorneys stand for election ensures that their decisions are subject to democratic control. However, when there is only one candidate — or no candidate — running, voters aren’t able to reject the choices or policies that their county attorney has made.
A recent national study of prosecutor elections by the Prosecutors and Politics Project at the University of North Carolina School of Law found that Nebraska has the lowest rate of contested prosecutor elections in the entire country. Only 6% of Nebraska’s county attorney elections had more than a single candidate run in either the primary or the general election. More than 90% of elections gave voters no say in who would serve as their county attorney.
One reason there are so few contested county attorney elections is that not many people are eligible to run for the office. To be a county attorney candidate, a person must be a lawyer licensed to practice in the state. But a majority of the counties in the state don’t have many lawyers living within their borders. More than 60 of the state’s 93 counties have fewer than 10 lawyers residents, and 12 counties have no lawyers at all.
Unlike some states, which require candidates for local prosecutor to live within the county, Nebraska has relaxed its residency requirements. To run for a county’s attorney position, a candidate does not have to reside in that county at the time of filing for the candidacy, but he or she must move to that county or to an adjoining county for the duration of the term if elected. This allows some of the counties with no attorneys to attract eligible candidates. But the state could do more.
Rather than simply allowing county attorneys to live in adjoining counties, Nebraska should instead create multi-county districts for county attorneys. A multi-county district combines multiple counties into a single district and allows all lawyers within the combined borders to be eligible to run for that district’s county attorney position. Currently, this model is used in 16 other states, including Colorado and New Mexico. The national study of prosecutor elections found that more than 35% of Colorado prosecutor elections were contested, and in New Mexico the number was almost 60%.
If Nebraska created multi-county districts, it would dramatically increase the number of people who are eligible to run for county attorney. For example, if Wheeler, Antelope, Boone and Madison counties were combined to create a single prosecutorial district, that district would have over 70 attorneys living within its borders. Without that combination, Wheeler has zero attorneys, and Antelope has only four.
New research shows that the number of eligible attorneys living within a district is related to the likelihood of a contested prosecutor election. Districts with more than 45 active lawyers are three times more likely to have a contested election than districts with fewer than five lawyers. Currently, Nebraska has more than 40 counties with fewer than five lawyers, and only nine counties with more than 45 lawyers. By electing one prosecutor per county, instead of a multi-county district, Nebraska has all but guaranteed that the vast majority of its elections will not offer voters an actual choice.
If voters do not have a choice between candidates, then they cannot serve as a check on their county attorneys. In order to ensure that local prosecutors are chosen through a truly democratic process, lawmakers should strongly consider creating multicounty prosecutorial districts in Nebraska. The only way that Nebraskans’ votes will matter is if they actually have a choice in their county attorney elections.