Nebraska Supreme Court places gambling initiatives on November ballot

On September 10, the Nebraska Supreme Court ruled that a trio of initiatives that would authorize, regulate, and tax gambling at horse racetracks did not violate the state’s single-subject rule and ordered they be placed on the November ballot.

Secretary of State Bob Evnen (R) announced on August 25 that the Constitutional Amendment to Allow Laws Authorizing Gaming at Racetracks Initiative, Authorizing Gaming at Racetracks Initiative, and the Tax on Gaming at Racetracks Initiative would not be on the November ballot because they were legally insufficient, although proponents collected the required number of verified signatures. The determination came after the secretary received objections to the initiative from three Nebraskan residents regarding the constitutionality and clarity of the ballot language. The secretary agreed with the objectors’ argument that the initiated constitutional amendment violated the single-subject rule. Sec. Evnen said, “The Constitutional Initiative effectively puts forth dual proposals: (1) authorizing expanded gambling at tribal casinos and (2) authorizing expanded gambling at racetracks by authorized operators. But the first proposal is hidden from the voters and impossible to ascertain from the text of the proposal. Putting forth dual propositions in a single proposal violates the single-subject rule as it does not permit voters to express a clear preference on dual propositions.” The secretary also said that the provision in the tax initiative that provides for property tax relief constituted logrolling because it required voters to expand gambling to obtain tax relief. Keep the Money in Nebraska, the sponsors of the initiatives, appealed the secretary’s decision to the Nebraska Supreme Court.

The Court reversed the secretary’s determination and ruled that each initiative is legally sufficient. The Court argued that the “purpose of the single-subject rule is to avoid forcing voters to vote for or against the whole package even though they would have voted differently had the propositions been submitted separately.” The Court determined since the three initiatives will be voted on separately they do not violate the single-subject rule.

  1. Initiative 429, Constitutional Amendment to Allow Laws Authorizing Gaming at Racetracks Initiative: The initiative would amend the Nebraska Constitution to allow the enactment of laws that authorize and tax gambling conducted by licensed gaming operators and held at licensed racetrack enclosures.
  2. Initiative 430, Authorizing Gaming at Racetracks Initiative: The initiative would allow games of chance by authorized operators in licensed racetrack enclosures; establish a Nebraska Gaming Commission to regulate games of chance; and exempt gaming at racetracks from rules and penalties that govern other forms of gambling.
  3. Initiative 431, Tax on Gaming at Racetracks Initiative: This initiative would enact a 20% tax on gambling revenue from games of chance operated at licensed racetracks and allocated 75% of the revenue from the tax to state funds for property tax relief and the Compulsive Gamblers Assistance Fund and 25% to the county or local jurisdictions in which the racetracks are located.

Keep the Money in Nebraska submitted over 465,000 signatures for the three petitions to the secretary of state on July 2. The campaign attempted to place the three initiatives on the ballot in 2016 but failed to collect the required number by the deadline. As of August 31, the campaign had received $3.1 million in cash and in-contributions from Ho-Chunk, Inc., an economic development corporation owned by the Winnebago Tribe of Nebraska.

The state Supreme Court also ruled on Thursday that the Medical Marijuana Initiative violated the state’s single-subject rule and removed it from the November ballot. The court argued that the initiative contained two constitutional rights that were not necessarily connected to the initiative’s general purpose—the right to use medical marijuana and the right to grow and sell marijuana. Of the 26 states that allow for the initiative process, 15 states have a single-subject rule.

On November 3, Nebraska voters will decide six statewide ballot measures including the gambling initiatives. The Remove Slavery as Punishment for Crime Amendment would repeal language allowing slavery or involuntary servitude as criminal punishment. The Tax Increment Financing Repayment Amendment would increase the repayment period for tax increment financing from 15 to 20 years for extreme blight. The Payday Lender Interest Rate Cap Initiative would limit the interest rate that payday lenders charge to 36 percent per year.

Between 1996 and 2018, an average of six ballot measures appeared on the ballot.  Voters approved 53% of the 73 ballot measures that appeared on ballots between those years.

The deadline to register to vote online or by mail is October 16, and the deadline to register in person is October 23. Early voting begins October 5 and ends November 2. Polls will be open from 8 am to 8 pm CST on election day.

Additional reading
Nebraska Authorizing Gaming at Racetracks Initiative, 2020
Nebraska Tax on Gaming at Racetracks Initiative, 2020