A memorial to Martin Luther King, Jr., was unveiled recently in Washington, D.C. Derided, in his day, for being an “outside agitator,” King persevered, and in so doing helped right a long history of wrong, making him worthy of a monument.
In his famous “Letter from a Birmingham Jail,” King defended outside agitators everywhere, writing, “Injustice anywhere is a threat to justice everywhere.”
This past week I was reminded of the issue of “outsiders coming in,” when a federal judge struck down Nebraska’s law barring people outside the state from working with those inside Nebraska as either paid or volunteer petition signature gatherers. The case is Citizens in Charge, et al v. Gale.
Mike Groene, one of Citizens in Charge’s co-plaintiffs, told reporters, “We filed a federal lawsuit based on the fact of freedom of association. It’s no different than back in the ’60s when white students came down to Alabama and Mississippi and helped out to get minorities their voter rights.”
For the last two decades I’ve been engaged in political battles in Nebraska. While I’ve never resided there, I’ve worked on initiative or recall campaigns in 1990, 1992, 1994, 1996, 1998, 2000, 2006 and 2011 and, in both state and federal courts, taken active part in eight lawsuits. Not only do I like and respect a number of Nebraska friends and acquaintances, I can help you find the best Omaha and Lincoln restaurants, point out Cherry County (pop. 5,713) on the map and, my political dislike of the terminology notwithstanding, I’ve become a fan of the Cornhuskers’ black-shirt defense.
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In 1992, I met Ed Jaksha and Bob Wright, two men who had stormed the beaches of Normandy in their youth. They were leading the campaign to petition a term limits amendment onto the ballot. At U.S. Term Limits, we helped them with some funding and petition drive advice. The measure made the ballot and passed that November with an impressive 68 percent of the vote.
Had the politicians accepted this first vote of the people, my Nebraska story could have ended there.
But the term limits amendment was challenged in court — and on extraordinary grounds. It was argued that the Nebraska Secretary of State and the Attorney General had misinterpreted the state’s constitution, that unbeknownst even to the legislator who had authored a recent constitutional amendment, that amendment should now be construed to have essentially doubled the signature requirement for ballot initiatives by making that requirement 10 percent of all registered voters, rather than 10 percent of the number of votes cast for governor.
The case went up to the state supreme court. Just six weeks before the 1994 petition deadline, the judges agreed that the signature requirement should be increased to the higher figure. The court went further; they struck down the term limits law, even though the sponsors had obtained all the signatures demanded by the published laws of the state at the time, and even after more than two thirds of Nebraskans had cast their ballots for the law.
What could be done? A new initiative was quickly drafted and filed and an effort commenced to put it on the 1994 ballot. With so little time left, the secretary of state told a reporter, “It would take a miracle.”
Miracles do happen. Even with the minutes ticking away and a nearly doubled signature requirement, enough Nebraskans signed to put term limits on the ballot. It won with the same 68 percent vote.
Again, of course, there was a lawsuit to block the vote. After the U.S. Supreme Court voted 5-4 that states could not limit congressional terms, Nebraska’s highest court issued a convoluted verdict overturning state and local term limits on the basis that the people of Nebraska may have wanted only congressional limits.
A firestorm of outrage swept the state, but this time there was something voters could do about it. State Supreme Court Justice David Lanphier was on the ballot, giving voters the opportunity to decide whether or not to retain his services. He had voted to overturn term limits twice and was the author of the first opinion, which doubled the petition requirement.
Still, never before in the history of Nebraska had a supreme court judge been denied retention.
There was also another term limits measure on the 1996 ballot — this one to instruct state and congressional representatives to take actions in support a federal constitutional amendment for term limits. During the course of that ballot drive, Nebraska’s petition law was challenged in federal court by the campaign and Kent Bernbeck, a voter rights activist. Bernbeck v. Moore overturned Nebraska’s law.
On election day, not only did the term limits measure sail to success at the ballot box, but Mr. Lanphier was removed from the state’s highest court. The percentage of voters saying “no” to Judge Lanphier? That same 68 percent.
My saddest day in Nebraska came in 1998, when very late in the petition period we pulled the plug on a failing drive to put state legislative term limits on the ballot. There were many reasons for falling short, most of the major mistakes and omissions being my responsibility.
But in 2000, term limits for the state’s unicameral legislators was back on the ballot. It won. And it even won in court, when — you guessed it — the term limits law was challenged.
When the term limits were about to go into effect, Sen. DiAnna Schimek (her 20-year career in the legislature coming to an end) pushed through legislation that has decimated the ability of citizens to place an issue on the ballot through initiative petition. More than 90 percent of state senators who were to be termed-out that year supported Schimek’s parting shot.
Since the law went into effect (over the governor’s veto), not a single citizen measure has made the ballot to be considered by Nebraska voters.
Last year, I returned to Omaha for three weeks to help friends with a petition recalling Omaha’s mayor. The state’s restrictive laws made it nearly impossible to gather enough signatures. The expense? Enormous. We managed to make the ballot at great cost in toil and tribute, but it sure caused me to appreciate the lawsuits my organization and my friend, Kent Bernbeck, have filed against the state’s petition law.
And, believe it or not, being attacked in the press and vilified as an outside agitator, a hired gun — I was even dubbed “The Music Man” — made me feel great. It is an honored role in an important tradition.
Last Tuesday, after a federal judge struck down the state’s ban on out-of state petition circulators as unconstitutional, I felt even better. At least one chain placed around the neck of the Nebraska citizenry by Schimek and that last batch of career politicians has now been removed.
And the battle continues.
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