State ex rel. McNally v. Evnen , 307 Neb. 103 ( 2020 )

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307 Nebraska Reports
STATE EX REL. McNALLY v. EVNEN
Cite as 307 Neb. 103
State of Nebraska ex rel. M. Lynne McNally and
Keep the Money in Nebraska, relators, and
Nebraska Horsemen’s Benevolent & Protective
Association, Inc., et al., relators-intervenors,
v. Robert B. Evnen, Secretary of State of
the State of Nebraska, respondent, and
Dr. Richard Loveless, and Ann Zohner
and Todd Zohner, wife and husband,
respondents-intervenors.
___ N.W.2d ___
Filed September 10, 2020. No. S-20-612.
1. Constitutional Law: Initiative and Referendum. The right of initia-
tive is precious to the people and one which the courts are zealous to
preserve to the fullest tenable measure of spirit as well as letter.
2. ____: ____. The power of initiative must be liberally construed to pro-
mote the democratic process, and provisions authorizing the initiative
should be construed in such a manner that the legislative power reserved
in the people is effectual.
3. Constitutional Law. A constitution represents the supreme written will
of the people regarding the framework for their government.
4. Constitutional Law: Initiative and Referendum. The people of
Nebraska may amend their Constitution in any way they see fit, pro-
vided the amendments do not violate the federal Constitution or conflict
with federal statutes or treaties.
5. Initiative and Referendum: Appeal and Error. The Nebraska Supreme
Court makes no attempt to judge the wisdom or the desirability of enact-
ing initiative amendments.
6. Initiative and Referendum: Intent. The interests that propel both
proponents and opponents of initiative petitions may often involve self-
interest rather than the public interest. But a court’s focus in deciding
whether an initiative petition reaches the voters must be on the actual
law proposed by the petition, not on the motives that may lie behind
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it; the voters may consider those motives in deciding how they vote on
the petition.
7. Constitutional Law: Initiative and Referendum. A purpose of the
language in Neb. Const. art. III, § 2, that “[i]nitiative measures shall
contain only one subject” is to avoid logrolling, which is the practice
of combining dissimilar propositions into one proposed amendment
so that voters must vote for or against the whole package even though
they would have voted differently had the propositions been submit-
ted separately.
8. Initiative and Referendum. Where the limits of a proposed law, hav-
ing natural and necessary connection with each other, and, together,
are a part of one general subject, the proposal is a single and not a
dual proposition.
9. Constitutional Law: Initiative and Referendum: Intent. The control-
ling consideration in determining the singleness of a subject for pur-
poses of article III, § 2, of the Nebraska Constitution is its singleness
of purpose and relationship of the details to the general subject, not the
strict necessity of any given detail to carry out the general subject. The
general subject is defined by its primary purpose.
10. Initiative and Referendum. When initiatives are presented separately,
even if on the same ballot, a voter has the option to vote for one initia-
tive but not the other, even if the initiatives have some connection to
one another. Because voters can vote differently on each separate initia-
tive, single subject review should focus on the specific initiative being
reviewed without reference to the content of another initiative that is
submitted separately.
Original action. Writ of mandamus granted.
Andre R. Barry and John F. Zimmer, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for relators.
Douglas J. Peterson, Attorney General, James A. Campbell,
Solicitor General, Ryan S. Post, L. Jay Bartel, and Lynn A.
Melson for respondent.
David A. Lopez and Kyle J. Gilster, of Husch Blackwell,
L.L.P., for intervenor Dr. Richard Loveless.
Stephen D. Mossman, J.L. Spray, and Joseph A. Wilkins, of
Mattson Ricketts Law Firm, for intervenors Ann Zohner and
Todd Zohner.
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STATE EX REL. McNALLY v. EVNEN
Cite as 307 Neb. 103
Jefferson Downing, of Keating, O’Hara, Nedved & Peter,
P.C., L.L.O., for amicus curiae Gambling With the Good
Life, Inc.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Freudenberg, JJ., and Welch, Judge.
Miller-Lerman, J.
NATURE OF CASE
M. Lynne McNally and Keep the Money in Nebraska (col-
lectively McNally), along with other sponsors, filed three
proposed ballot initiative petitions with Nebraska Secretary
of State Robert B. Evnen (the Secretary). Generally, the first
initiative would amend the prohibition against gambling con-
tained in Nebraska Const. art. III, § 24, by permitting enact-
ment of an exception which would authorize games of chance
conducted within licensed racetrack enclosures; the second
initiative would enact certain statutes and amend certain exist-
ing statutes to regulate games of chance operated by licensed
gaming operators within licensed racetrack enclosures; and the
third initiative would enact statutes that impose a tax on rev-
enues from games of chance and specify how such taxes would
be distributed.
After signatures had been collected, the Secretary received
letters objecting to the initiatives and asking that they be
withheld from the ballot due to claimed legal insufficiencies.
Separate letters were received from Dr. Richard Loveless and
from Ann Zohner and Todd Zohner.
The Secretary requested and received additional letters from
the sponsors and from the objectors, and the Secretary there-
after granted the objectors’ request to withhold the proposed
initiatives from the November 3, 2020, general election bal-
lot. The Secretary generally determined that each initiative
was facially invalid under the “single subject” provision of
Neb. Const. art. III, § 2. The Secretary further determined that
even if either the regulatory initiative or the tax initiative was
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in itself legally sufficient, both initiatives should be withheld
because all three initiatives have a common primary purpose.
After the Secretary announced his decision to withhold the
initiatives from the ballot, McNally applied for leave to com-
mence an original action in this court for a writ of mandamus
requiring the Secretary to place the initiatives on the ballot.
We granted leave, and based on McNally’s verified petition for
writ of mandamus, we issued an alternative writ of mandamus
requiring the Secretary to place the initiatives on the ballot or
show cause why they should not be placed on the ballot. We
expedited the proceeding and set a briefing schedule and date
for oral argument.
During the pendency of this case, several parties inter-
vened. Loveless and the Zohners intervened and essentially
aligned with the Secretary. Nebraska Horsemen’s Benevolent
& Protective Association, Inc.; Ho-Chunk, Inc.; and Omaha
Exposition and Racing, Inc., intervened and essentially aligned
with McNally. We have considered the arguments and claims
of all parties, and within our disposition with respect to issues
identified as raised by McNally and the Secretary, we have
also considered arguments of all intervenors. Our disposition
disposes of all claims asserted before us.
We exercise original jurisdiction under Neb. Const. art. V,
§ 2, because this is a cause of action relating to revenue, in
which the State has a direct interest, and because McNally has
requested a writ of mandamus. See State ex rel. Loontjer v.
Gale, 288 Neb. 973, 853 N.W.2d 494 (2014).
As we explain, we conclude that none of the initiatives is
legally insufficient and that all three should be placed on the
ballot. By separate order, the alternative writ is vacated; a writ
of mandamus is issued by separate order ordering the Secretary
to place all three initiatives on the ballot.
STATEMENT OF FACTS
Three Initiatives.
In the verified petition for writ of mandamus, McNally
alleges that the sponsors of the three initiatives at issue in this
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case are Keep the Money in Nebraska, Nebraska Horsemen’s
Benevolent & Protective Association, Ho-Chunk, and Omaha
Exposition and Racing. McNally alleges that Keep the Money
in Nebraska is a registered ballot question committee and
that M. Lynne McNally is a resident of Lancaster County,
Nebraska, who is a member of Keep the Money in Nebraska
and the executive vice president of Nebraska Horsemen’s
Benevolent & Protective Association. McNally alleges that on
April 10, 2019, the sponsors filed with the Secretary the text
of the three proposed ballot initiatives, along with the required
object statements and sworn statements of sponsors, and that
on July 3, 2020, the sponsors submitted sufficient and valid
signatures for the petitions. McNally further alleges that in late
July 2020, the Nebraska Attorney General sent the Secretary
letters setting forth the ballot title and explanatory statement
for each of the initiatives.
The first initiative, hereinafter referred to as “the
Constitutional Initiative,” included the following object state-
ment: “The object of this petition amends the Nebraska
Constitution to state that laws may be enacted allowing for the
licensing, authorization, taxation, and regulation of all forms of
games of chance to be conducted by authorized gaming opera-
tors within licensed racetrack enclosures in the state.” The text
of the Constitutional Initiative was set forth as proposing that
Neb. Const. art. III, § 24, be amended to add a subsection (5),
which would provide:
This section shall not apply to any law which is enacted
contemporaneously with the adoption of this subsection or
at any time thereafter and which provides for the licens-
ing, authorization, regulation, or taxation of all forms of
games of chance when such games of chance are con-
ducted by authorized gaming operators within a licensed
racetrack enclosure.
The second initiative, hereinafter referred to as “the
Regulatory Initiative,” included the following object state-
ment: “The object of this petition enacts a statute allowing
all games of chance to be conducted by authorized gaming
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operators within licensed racetrack enclosures in Nebraska and
establishes a Nebraska Gaming Commission to regulate such
gaming in Nebraska.” The text of the Regulatory Initiative
was set forth as proposing the enactment of “the Nebraska
Racetrack Gaming Act,” which included enactment of various
statutory provisions to, inter alia, permit operation of games of
chance by authorized gaming operators within licensed race-
track enclosures, define terms used within the proposed act,
set forth regulations regarding operation of such games, create
the “Nebraska Gaming Commission,” and set forth author-
ity and duties of such commission. The text of the initiative
also proposed to amend various existing statutes to include
references to “games of chance,” “the Nebraska Racetrack
Gaming Act,” “the Nebraska Gaming Commission,” and other
language relevant to regulation of games of chance. Of par-
ticular note in this original action, the initiative proposed to
amend existing Neb. Rev. Stat. § 77-2704.20 (Reissue 2018),
which currently provides: “Sales and use taxes shall not be
imposed on the gross receipts from the sale, lease, or rental
of and the storage, use, or other consumption in this state of
purchases made by licensees of the State Racing Commission.”
The Regulatory Initiative proposed to amend § 77-2704.20 by
adding “or of purchases made by licensees of the Nebraska
Gaming Commission.” The Regulatory Initiative also pro-
posed to revise Neb. Rev. Stat. § 77-3001 (Supp. 2019), which
defines the term “mechanical amusement device” for purposes
of the Mechanical Amusement Device Tax Act and which
includes a list of devices that are excluded from the defini-
tion. The Regulatory Initiative proposed to amend § 77-3001
to include in the list of exclusions, and therefore exclude from
the definition, “gaming devices or limited gaming devices as
defined in and operated pursuant to the Nebraska Racetrack
Gaming Act.”
The third initiative, hereinafter referred to as “the Tax
Initiative,” included the following object statement: “The
object of this petition enacts a statute establishing an annual
tax on gross gaming revenue generated by authorized gaming
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operators of games of chance within licensed racetrack enclo-
sures and directs the collection, enforcement, and distribution
of revenue from such gaming tax.” The text of the Tax Initiative
was set forth as proposing statutory language to, among other
things, impose an annual gaming tax; define statutory terms;
set the tax at 20 percent of gross gaming revenue; authorize
the Nebraska Gaming Commission to collect, account for, and
remit the tax; and provide that specific percentages of the tax
imposed be remitted to the Compulsive Gamblers Assistance
Fund, the State’s General Fund, the Property Tax Credit Cash
Fund, and the county and/or the city or village in which the
licensed racetrack enclosure is located. Of particular note to
this original action, the Tax Initiative provided that 70 percent
of the tax imposed was to be credited to the Property Tax
Credit Cash Fund.
Secretary of State.
As indicated above, on August 7, 2020, the Secretary
received separate letters from the objectors asking that the
three initiatives be withheld from the ballot due to claimed
legal insufficiency. After requesting and receiving additional
letters from the objectors and from McNally and the other
sponsors, the Secretary issued a letter dated August 25, 2020,
in which he determined that the three initiatives should be
withheld from the ballot, generally for the reason that the ini-
tiatives violated the single subject rule set forth in Neb. Const.
art. III, § 2.
The Secretary set forth the reasoning for his decision in the
letter. He began the analysis by determining that “the primary
purpose for each [of the three initiatives] is the same: to per-
mit previously prohibited games of chance to be conducted
in the State of Nebraska.” He further stated that “without the
Constitutional Initiative, neither the Regulatory Initiative nor
the Tax Initiative serves any purpose.” But, he stated, even if
there were separate primary purposes for each of the initia-
tives, the outcome would be the same. The Secretary then
set forth law relating to the single subject rule. He stated that
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in prior cases involving a single initiative, the question was
whether the single initiative contained more than a single
subject. But he noted that this case presented “a novel situa-
tion that has not been present in any case heretofore decided
by the Supreme Court,” namely, a situation in which “a single
general subject constitutes the primary purpose of all three of
the initiatives.” The Secretary then reviewed each of the initia-
tives individually.
Regarding the Constitutional Initiative, the Secretary
rejected certain arguments advanced by the objectors, but
the Secretary found merit to an alternate argument advanced
by the objectors regarding the Constitutional Initiative: that
it contained a “‘hidden authorization’” of certain types of
gambling on tribal lands in Nebraska. The Secretary agreed
with the objectors’ reasoning that under the federal Indian
Gaming Regulatory Act, permitting gaming activities by any
organization in the State would require the State to negotiate
with tribes to allow that type of gambling activity on tribal
lands. The Secretary reasoned that the Constitutional Initiative
would “likely . . . mislead voters into thinking that they are
voting for an initiative that would prohibit the conduct of
games of chance anywhere but at racetracks” but that instead,
if the initiative were adopted, “gambling would not be limited
to racetracks.” The Secretary determined that if the initiative
were adopted, the legal implications under the Indian Gaming
Regulatory Act were not merely speculative, and he noted that
there were three tribal casinos in the State that could engage
in additional types of gaming and that one of the sponsors
of the initiatives was “affiliated with a tribal . . . casino in
Iowa within a few miles of the Nebraska border that is not
operating within a racetrack.” The Secretary found that the
Constitutional Initiative creates the appearance that games
of chance could be conducted only in racetrack enclosures.
However, referring to State ex rel. Loontjer v. Gale, 288 Neb.
973, 853 N.W.2d 494 (2014), the Secretary reasoned that given
the implications under the Indian Gaming Regulatory Act, the
Constitutional Initiative was “likely to confuse voters,” “likely
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to materially mislead voters,” and “create[] doubt about what
action would be authorized.”
The Secretary concluded that the Constitutional Initiative
“effectively puts forth dual proposals: (1) authorizing expanded
gambling at tribal casinos and (2) authorizing expanded gam-
bling at racetracks by authorized operators.” The Secretary
stated that the first purpose was “hidden from the voters and
impossible to ascertain from the text of the proposal.” He
concluded that the Constitutional Initiative violated the single
subject rule by “[p]utting forth dual propositions in a single
proposal” and “not permit[ting] voters to express a clear pref-
erence on dual propositions.” Referring to the first proposal,
the Secretary concluded that the Constitutional Initiative was
“legally insufficient and for that reason [he would] withhold it
from the ballot.”
Although the Secretary rested his decision regarding the
Constitutional Initiative on the reasoning set forth above, he
noted an additional argument by the objectors that the initiative
violated the single subject rule because it had “two subjects,
which are, first, permitting the conduct of games of chance by
authorized operators, and second, that such activity is permit-
ted only at racetracks.” The Secretary stated that this was a
“strong argument” and that limiting gambling to racetracks was
“not a benign purpose” but was “misleading.” However, the
Secretary did not explicitly reject or accept this argument as a
basis for his decision to withhold the Constitutional Initiative
from the ballot.
Regarding the Regulatory Initiative, the Secretary noted
that the opponents argued that the initiative violated the sin-
gle subject rule by including multiple purposes, including
authorizing games of chance at racetracks, creating a gaming
commission, imposing a license fee, providing tax breaks to
operators, and decriminalizing gaming activities. The Secretary
reviewed precedent regarding initiatives setting forth a regula-
tory scheme and reviewed each of the parts of the Regulatory
Initiative based on such precedent. As to most of the parts of
the Regulatory Initiative, the Secretary determined that “[t]he
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regulatory requirements set forth in the Regulatory Initiative
have a natural and necessary connection to the general sub-
ject” of permitting previously prohibited games of chance. The
Secretary specifically addressed the imposition of the $1 mil-
lion licensing fee and determined it had a natural and neces-
sary connection.
The Secretary, however, also reviewed portions of the initia-
tive that provided “[t]ax breaks . . . which exempt purchases by
licensees of the gaming commission from sales and use taxes
and the mechanical amusement device tax.” The Secretary
stated it was a “close question” whether such tax exemptions
constituted a separate subject from the regulatory measures in
the initiative. But the Secretary concluded that the “tax breaks
[did] not have a natural and necessary connection to” a primary
purpose of regulating gambling. The Secretary also noted that
the tax exemptions were “not mentioned in the object state-
ment” and that the sales and use tax exemption was “incorrectly
stated in the introduction to the bill” as applying to the gaming
commission rather than to licensees of the gaming commission.
The Secretary stated that the descriptions were “misleading.”
The Secretary further noted that the Tax Initiative provided
for taxation of newly expanded gaming activities. He reasoned
that “dividing the tax proposals between two initiatives, and by
failing to disclose the tax breaks contained in the Regulatory
Initiative,” the Regulatory Initiative created a condition confus-
ing to voters and creating doubt as to the effect of the initia-
tives. The Secretary therefore concluded that the Regulatory
Initiative was “not legally sufficient.”
The Secretary then stated that there was “an additional,
separate basis for the legal insufficiency” of the Regulatory
Initiative. He reasoned that because he had determined that
the Constitutional Initiative must be withheld from the ballot,
the Regulatory Initiative, which shared a primary purpose with
the Constitutional Initiative and which had a natural and neces-
sary connection to that primary purpose, would have “no pur-
pose at all.” The Secretary concluded that if the Constitutional
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Initiative were not on the ballot, adoption of the Regulatory
Initiative “would be an idle act.”
Regarding the Tax Initiative, the Secretary noted that the
objectors argued that it violated the single subject rule because
it had two distinct and independent proposals: (1) to raise
revenue by imposing an annual gaming tax and (2) to “distrib-
ute the bulk of the tax revenue for property tax relief.” The
Secretary noted that the objectors indicated that other distribu-
tions of tax revenue “had a natural and necessary connection
with the tax proposed, but that property tax relief is a separate
topic included only to entice voters to vote in favor of the gam-
ing tax.”
In reaction, the Secretary noted precedent in which this court
determined that provisions for property tax relief included in
other initiatives violated the single subject rule. The Secretary
reasoned that “[w]ere the contents of the Tax Initiative con-
tained in the Constitutional Initiative, the initiative would be
legally insufficient and would be withheld from the ballot as
logrolling.” The Secretary stated that the sponsors of the initia-
tives “attempt[ed] to avoid the prohibition against logrolling by
setting forth the logrolling provisions in one of the Initiatives
but not the others.”
The Secretary rejected McNally’s argument that “the prop-
erty tax enticement” was proper because it was “contained
in a separate initiative from that which expands gambling.”
The Secretary instead reasoned that the primary purpose of
all three initiatives was the same and that the provisions of
the Tax Initiative, other than the property tax feature, had a
natural and necessary connection to the extension of gam-
bling. The Secretary reasoned that property tax relief had no
natural and necessary connection to the expansion of gam-
bling. The Secretary reasoned that whether the Tax Initiative
had the same primary purpose as the other initiatives, or
whether its primary purpose was taxation of gambling rev-
enues, “the property tax relief provisions contained in the Tax
Initiative constitute logrolling and violate the single subject
rule.” Similar to his reasoning with regard to the Regulatory
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Initiative, the Secretary reasoned that taxation provisions are
“confusingly split between the Regulatory Initiative and the
Tax Initiative.” The Secretary concluded that the Tax Initiative
was legally insufficient.
Also similar to his reasoning with regard to the Regulatory
Initiative, the Secretary concluded that there was an additional
separate basis for the legal insufficiency of the Tax Initiative.
He reasoned that because he had decided the Constitutional
Initiative must be withheld, that without the Constitutional
Initiative, adoption of the Tax Initiative “would be an idle act.”
The Secretary finally noted that the opponents raised cer-
tain constitutional challenges to the initiatives. However, the
Secretary determined that it was not clear whether such chal-
lenges were “within the purview of a legal sufficiency review
by the Secretary of State” and that the issues did not appear
to be ripe for decision. He therefore expressed no opinion on
those objections.
The Secretary stated in conclusion that “[p]art of the protec-
tion of the right of initiative is to assure that such petitions are
neither misleading nor manipulative.” He concluded that based
on his review and the reasons set forth in his letter, he would
withhold all three initiatives from the ballot “unless otherwise
ordered by a court of competent jurisdiction.”
Original Action for Writ of Mandamus.
After the Secretary withheld the three initiatives from the
ballot, McNally filed this original action for writ of mandamus.
We accepted jurisdiction and issued an alternative writ of man-
damus requiring the Secretary to place the three initiatives on
the ballot or show cause why they should not be placed on the
ballot. We set schedules for briefing and oral argument. Several
parties identified previously in the opinion intervened.
Summary of Issues Presented in This Action.
In response to our alternative writ of mandamus, the
Secretary asserts that the issues presented in this original action
are whether he correctly concluded that (1) the Constitutional
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Initiative violates the single subject rule; (2) because the
Constitutional Initiative must be withheld from the ballot, the
Regulatory Initiative and the Tax Initiative must also be with-
held from the ballot because they will have no effect without
the Constitutional Initiative; (3) the Regulatory Initiative vio-
lates the single subject rule; and (4) the Tax Initiative violates
the single subject rule.
McNally asserts that the Secretary incorrectly (1) applied the
single subject rule by considering all three initiatives together,
even though voters will vote on each separately; (2) determined
that the Constitutional Initiative violates the single subject rule;
(3) determined that the Regulatory Initiative violates the single
subject rule; (4) determined that the Tax Initiative violates the
single subject rule; and (5) determined that adoption of the
Regulatory Initiative and the Tax Initiative without the simul-
taneous adoption of the Constitutional Initiative would be an
“idle act.”
We note that the Secretary does not appear to dispute that the
initiative petitions garnered sufficient signatures, nor does he
appear to dispute the validity of the initiatives with respect to
any other issue such as verification or submission by a specific
date. We therefore presume such requirements were met and
would not prevent placement of the initiatives on the ballot.
ANALYSIS
As set forth above, we issued an alternative writ of man-
damus requiring the Secretary to place the three initiatives on
the ballot or show cause why a peremptory writ requiring such
action should not issue. The Secretary has responded to our
alternative writ, and therefore, we must determine whether the
Secretary has shown cause why we should not issue a peremp-
tory writ requiring him to place any or all of the initiatives on
the ballot.
The Secretary contends that all three initiatives should not be
placed on the ballot. In his response to the alternative writ, the
Secretary argues that the Constitutional Initiative violates the
single subject rule because it has two subjects: (1) authorizing
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games of chance and (2) limiting such activity to licensed
racetrack enclosures. As an alternative second argument, the
Secretary maintains that the Constitutional Initiative has the
hidden purpose of authorizing games of chance on tribal lands.
The Secretary argues that because the Constitutional Initiative
must be withheld from the ballot, the Regulatory Initiative and
the Tax Initiative must also be withheld from the ballot for the
reason that they could not stand on their own because they
would directly conflict with the current constitutional provision
generally prohibiting games of chance.
The Secretary alternatively argues that if we determine
the Regulatory Initiative and the Tax Initiative need not be
withheld for this reason, each initiative in itself violates the
single subject rule. The Secretary argues that the Regulatory
Initiative, like the Constitutional Initiative, violates the single
subject rule because it both authorizes games of chance and
limits their operation to licensed racetrack enclosures. The
Secretary also argues that the Regulatory Initiative violates the
single subject rule because it includes provisions that would
exempt licensees from sales and use tax and that would exempt
authorized gaming devices from the Mechanical Amusement
Device Tax Act; he argues that these tax-related topics do not
have a natural and necessary connection to regulation of games
of chance.
In considering the Tax Initiative, the Secretary maintains that
because the sponsors have inextricably bound the Tax Initiative
and the Regulatory Initiative together by including taxation
issues in both, the propriety of putting the Tax Initiative
on the ballot is entirely dependent on the placement of the
Regulatory Initiative. The Secretary argues that because the
Tax Initiative must be analyzed with the Regulatory Initiative,
the Tax Initiative presents a problem of “logrolling” because
voters who want to vote for the Tax Initiative in order to pro-
vide property tax relief would be forced to also vote for the
Regulatory Initiative, which authorizes the activity to be taxed
to provide funds for such property tax relief.
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In response, McNally generally argues that the single sub-
ject rule provides that voters must be allowed to cast sepa-
rate votes on separate subjects and that because voters could
vote for or against each separate initiative, the legal suffi-
ciency of each initiative must be evaluated separately without
reference to the other initiatives. McNally argues that if any
initiative is legally sufficient in itself, it must be placed on the
ballot whether or not either or both of the other ballot issues
are legally sufficient. McNally argues that, viewed individ­
ually, none of the three initiatives violates the single subject
rule and that therefore, each of the three initiatives must be
placed on the ballot.
Summary of Legal Determinations.
Immediately below, we set forth standards related to the sin-
gle subject rule. As set forth below, we determine that each ini-
tiative must be analyzed individually for its legal sufficiency,
and we thereafter analyze each initiative separately. Based
on such analysis, we conclude that neither the Constitutional
Initiative, nor the Regulatory Initiative, nor the Tax Initiative
violates the single subject rule. We therefore conclude that
the Secretary has not shown cause why we should not issue
a peremptory writ requiring him to place the Constitutional
Initiative, the Regulatory Initiative, and the Tax Initiative on
the ballot.
Our Precedent Generally Sets Forth a Natural and
Necessary Connection Test for the Single Subject
Rule Found in Neb. Const. art. III, § 2.
[1,2] The people have the power to amend the Nebraska
Constitution and enact statutes by the initiative process pursu-
ant to Neb. Const. art. III, § 2, which provides in part: “The
first power reserved by the people is the initiative whereby
laws may be enacted and constitutional amendments adopted
by the people independently of the Legislature.” We have
repeatedly said that the right of initiative is precious to the
people and one which the courts are zealous to preserve to the
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fullest tenable measure of spirit as well as letter. Christensen
v. Gale, 301 Neb. 19, 917 N.W.2d 145 (2018); Hargesheimer
v. Gale, 294 Neb. 123, 881 N.W.2d 589 (2016); Stewart v.
Advanced Gaming Tech., 272 Neb. 471, 723 N.W.2d 65 (2006);
State ex rel. Lemon v. Gale, 272 Neb. 295, 721 N.W.2d 347
(2006); Loontjer v. Robinson, 266 Neb. 902, 670 N.W.2d 301
(2003); State ex rel. Stenberg v. Moore, 258 Neb. 199, 602
N.W.2d 465 (1999). The power of initiative must be liberally
construed to promote the democratic process, and provisions
authorizing the initiative should be construed in such a manner
that the legislative power reserved in the people is effectual.
Stewart v. Advanced Gaming Tech., supra.
[3-6] A constitution represents the supreme written will of
the people regarding the framework for their government. State
ex rel. Johnson v. Gale, 273 Neb. 889, 734 N.W.2d 290 (2007).
The people of Nebraska may amend their Constitution in any
way they see fit, provided the amendments do not violate the
federal Constitution or conflict with federal statutes or trea-
ties. State ex rel. Johnson v. Gale, supra. This court makes
no attempt to judge the wisdom or the desirability of enacting
initiative amendments. Id. We agree with the statement else-
where that
the interests that propel both proponents and opponents of
initiative petitions may often involve self-interest rather
than the public interest. But our focus in deciding whether
an initiative petition reaches the voters must be on the
actual law proposed by the petition, not on the motives
that may lie behind it; the voters may consider those
motives in deciding how they vote on the petition.
Bogertman v. Attorney General, 474 Mass. 607, 618-19, 53
N.E.3d 627, 636 (2016).
[7] Among other matters related to initiatives, Neb. Const.
art. III, § 2, provides that “[i]nitiative measures shall contain
only one subject.” We have stated that a purpose of this lan-
guage is to avoid logrolling, which is the practice of combin-
ing dissimilar propositions into one proposed amendment so
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that voters must vote for or against the whole package even
though they would have voted differently had the propositions
been submitted separately. Christensen v. Gale, supra.
[8,9] Like the majority of jurisdictions, we follow the natu-
ral and necessary connection test which we have set forth as
follows: Where the limits of a proposed law, having natural
and necessary connection with each other, and, together, are a
part of one general subject, the proposal is a single and not a
dual proposition. Id. The controlling consideration in determin-
ing the singleness of a subject for purposes of article III, § 2,
of the Nebraska Constitution is its singleness of purpose and
relationship of the details to the general subject, not the strict
necessity of any given detail to carry out the general subject.
Christensen v. Gale, supra. The general subject is defined by
its primary purpose. Id. Here, because the parts of the proposed
Constitutional Initiative all relate to the same general subject,
the expanding of games of chance, the Constitutional Initiative
does not violate the single subject rule nor logrolling.
We note that this case appears to present an issue of first
impression regarding application of the single subject rule
when separate but related initiatives are reviewed for legal
sufficiency. The Secretary argues in this case that because the
three initiatives share a common primary purpose, they must
be considered with one another when determining whether any
or all of the initiatives violate the single subject rule. McNally
disputes that the three initiatives have the same primary pur-
pose, but argues that, in any event, each initiative must be ana-
lyzed individually to determine whether it violates the single
subject rule. The parties appear to agree that our precedent
does not address that issue.
[10] As noted above, a purpose of the single subject rule is
to avoid forcing voters to vote for or against the whole pack-
age even though they would have voted differently had the
propositions been submitted separately. When initiatives are
presented separately, even if on the same ballot, a voter has
the option to vote for one initiative but not the other, even if
the initiatives have some connection to one another. Because
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voters can vote differently on each separate initiative, we con-
clude and hold that single subject review should focus on the
specific initiative being reviewed without reference to the con-
tent of another initiative that is submitted separately.
Finally, we note that the Secretary’s arguments rely in large
part on language in an opinion in which we stated:
“a proposed municipal ballot measure is invalid if it
would (1) compel voters to vote for or against distinct
propositions in a single vote—when they might not do so
if presented separately; (2) confuse voters on the issues
they are asked to decide; or (3) create doubt as to what
action they have authorized after the election.”
State ex rel. Loontjer v. Gale, 288 Neb. 973, 1000, 853 N.W.2d
494, 513 (2014) (quoting City of North Platte v. Tilgner, 282
Neb. 328, 803 N.W.2d 469 (2011)). The Secretary’s arguments
focus in large part on asserting that the initiatives in this case
are misleading and that they would “confuse voters” and “cre-
ate doubt.” We take this opportunity to clarify the quoted lan-
guage in State ex rel. Loontjer v. Gale, supra.
As is clear from the language quoted above, we were quot-
ing City of North Platte v. Tilgner, supra, which set forth stan-
dards related to municipal ballot measures and the common-
law rules that have been applied to such standards. In State ex
rel. Loontjer v. Gale, supra, we were considering constitutional
amendments proposed by the Legislature and the separate
vote requirement of Neb. Const. art. XVI, § 1, which governs
constitutional amendments proposed by the Legislature. We
referred to Tilgner, which described a natural and necessary
test for the single vote requirement set forth in subsection (1)
of the quoted language regarding municipal ballot measures.
We concluded that the natural and necessary test for the single
vote requirement for municipal ballot measures should also be
used in connection with the separate vote provisions of Neb.
Const. art. XVI, § 1, governing constitutional amendments
proposed by the Legislature.
In State ex rel. Loontjer v. Gale, supra, we recognized that
among the reasons for a single subject rule is that including
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multiple subjects could confuse voters and create doubt, but we
have not said that confusion or doubt are separate requirements
for a legally insufficient measure or that they are required ele-
ments of the test to determine whether a measure violates the
single subject requirement. As we noted above, in Christensen
v. Gale, 391 Neb. 19, 917 N.W.2d 145 (2018), we said that the
natural and necessary test described in State ex rel. Loontjer
v. Gale, supra, for the separate vote requirement under Neb.
Const. art. XVI, § 1, for constitutional amendments proposed
by the Legislature is also an applicable framework to consid-
eration of the single subject rule for initiatives brought under
Neb. Const. art. III, § 2. Therefore, the natural and necessary
test governs our single subject analysis in this case.
We apply the foregoing principles regarding the single sub-
ject rule to review the Secretary’s arguments regarding each
of the three initiatives at issue in this case and to determine
whether or not each initiative violates the single subject rule
and is therefore legally insufficient.
Constitutional Initiative Does Not
Violate Single Subject Rule.
In his response to the alternative writ, the Secretary argues
that the Constitutional Initiative violates the single subject rule
in two different ways, because (1) it both authorizes games
of chance and limits them to racetrack enclosures and (2) in
addition to authorizing games of chance at racetrack enclo-
sures, it authorizes games of chance on tribal lands. Because
we conclude that there is no violation of the single subject
rule, we reject the Secretary’s arguments and conclude that the
Secretary has not shown cause why the Constitutional Initiative
should not be placed on the ballot.
In reviewing the Secretary’s arguments regarding the
Constitutional Initiative, we note that a review for legal suf-
ficiency should focus on the actual text of the initiative.
We therefore repeat the text of the Constitutional Initiative
at this point. The initiative proposes to amend the existing
Neb. Const. art. III, § 24, by adding another exception to the
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prohibition against gambling by providing the following new
subsection (5):
This section shall not apply to any law which is enacted
contemporaneously with the adoption of this subsection or
at any time thereafter and which provides for the licens-
ing, authorization, regulation, or taxation of all forms of
games of chance when such games of chance are con-
ducted by authorized gaming operators within a licensed
racetrack enclosure.
That is the entirety of the amendment proposed by the
Constitutional Initiative.
The text of the amendment refers to games of chance within
a licensed racetrack enclosure. The dissent is concerned that
the racetrack where games of chance are located would serve
as host and could profit therefrom. Regarding profit, we note
that other subsections in art. III, § 24, such as subsection 2,
limit the scope to charitable and community betterment; this
Constitutional Initiative does not. We limit our analysis to the
text of the Constitutional Initiative, which simply specifies the
place of games of chance.
We first address the Secretary’s assertion that the
Constitutional Initiative contains two subjects. With respect
to the first manner of alleged violation, Neb. Const. art. III,
§ 2, the Secretary asserts the Constitutional Initiative contains
two subjects: (1) authorizing all forms of games of chance and
(2) restricting those new forms of gambling to racetracks. The
Secretary generally argues that authorizing games of chance
is the primary purpose and that restricting games of chance
to racetrack enclosures does not have a natural and neces-
sary connection to authorizing games of chance. We find the
Secretary’s reading of the one sentence proposed to be added
to the Constitution to be an inaccurate application of the single
subject rule.
By reviewing the proposed amendment in context, we
believe the Secretary’s characterization of the initiative as
having two subjects is inaccurate. Article III, § 24, of the
Nebraska Constitution, which the Constitutional Initiative
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proposes to amend, begins: “[e]xcept as provided in this sec-
tion, the Legislature shall not authorize any game of chance
or any lottery . . . .” (Emphasis supplied.) This is an invitation
to authorize expanded gambling by way of exceptions and,
indeed, that has occurred. Both the people (through initia-
tive) and the Legislature (by authorization) have accepted the
invitation in art. III, § 24(1), to expand gambling. See art. III,
§ 24(2) through (4). Art. III, § 24, has been amended to include
exceptions which permit, inter alia, wagering on horses at race-
tracks and, separately, lotteries. The proposed Constitutional
Initiative exception accepts the constitutional offer to expand
gambling and would permit games of chance at racetracks.
By definition, an exception to art. III, § 24, is an expan-
sion of gambling. When gambling is expanded, it naturally
follows that the enlarged activity shall occur somewhere,
hence the description “within a licensed racetrack enclo-
sure.” See Bogertman v. Attorney General, 474 Mass. 607,
53 N.E.3d 627 (2016) (discussing location in the context of
expanded gambling). Gambling, i.e., wagering on horses, is
already located “within a licensed racetrack enclosure.” Art.
III, § 24(4)(a). We do not read the Constitutional Initiative to
prevent games of chance being located at additional places by
later amendments.
In the present case, the sponsors of the Constitutional
Initiative concluded that the new gambling exception activ-
ity—which art. III, § 24(1), invites—should occur at racetracks
where other gambling already occurs as a result of a previous
exception. The Constitutional Initiative asks voters if they want
games of chance to be permitted within racetrack enclosures.
Voters who want games of chance nearby or elsewhere can
vote against it.
Identifying and limiting the location of a new activity is
a detail naturally and necessarily connected to its creation
and not a separate subject. Christensen v. Gale, supra. Voters
naturally want to know the locale of expanded gambling. We
have said that provisions in a proposal must be closely related
to be presented to the electorate for a single vote. State ex rel.
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Loontjer v. Gale, 288 Neb. 973, 853 N.W.2d 494 (2014). The
Constitutional Initiative meets these tests.
The Secretary argues that logrolling is occurring because
there may be voters who might support authorization of new
games of chance but who dislike the “favored treatment” given
to racetracks and would be forced to vote for the racetrack
limitation in order to authorize new games of chance. We do
not read the proposal as vulnerable to the claim of logrolling.
In State ex rel. Loontjer v. Gale, 288 Neb. at 995, 853 N.W.2d
at 510, we said that
logrolling is the practice of combining dissimilar proposi-
tions into one proposed amendment so that voters must
vote for or against the whole package even though they
would have voted differently had the propositions been
submitted separately. It is sometimes described as includ-
ing favored but unrelated propositions in a proposed
amendment to ensure passage of a provision that might
otherwise fail.
The premise of these descriptions of logrolling is that the two
propositions are unrelated. Logrolling has no application when
propositions are related.
Under the Constitutional Initiative, each voter gets to decide
whether authorization of games of chance is a sufficiently
important goal that he or she will support the incremental
expansion provided by this initiative. If so, he or she could
vote for it. Or he or she could decide that the racetrack limita-
tion is an unfavorable feature and therefore he or she could
vote against it. When the parts have a natural and necessary
connection, there is no logrolling. When an unattractive feature
is paired with an attractive feature and they do not have a natu-
ral and necessary connection to one another, then logrolling is
a problem. No logrolling occurs here.
We have observed that the provisions authorizing the initia-
tive should be construed in such a manner that the legislative
power reserved in the people is effectual. State ex rel. Loontjer
v. Gale, supra; State ex rel. Lemon v. Gale, 272 Neb. 295, 721
N.W.2d 347 (2006). Elsewhere, discussing the single subject
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rule, it has been cautioned that “defining the constitutionally-
valid topic too broadly would render the safeguards of [a single
subject rule] inert. Conversely, the requirements of [a single
subject rule] must not become a license for the judiciary to
‘exercise a pedantic tyranny’” over efforts to change the law.
PA Against Gambling Expansion Fund v. Com., 583 Pa. 275,
296, 877 A.2d 383, 395-96 (2005).
We have stated that the power of initiative must be liber-
ally construed to promote the democratic process. State ex rel.
Loontjer v. Gale, supra; State ex rel. Lemon v. Gale, supra.
Whether or not games of chance conducted at racetracks
should become the law is for the people to decide.
We next consider the Secretary’s argument that the
Constitutional Initiative violates the single subject rule because
in addition to authorizing games of chance at racetrack enclo-
sures, it also authorizes games of chance on tribal lands. We
reject this argument. As we stated above, a legal sufficiency
review should focus on the actual text of the proposed initia-
tive. The Secretary’s argument rests on the notion that there is
a “hidden” subject in the Constitutional Initiative that simply
is not present in the text of the proposal. That is, the Secretary
concludes that the initiative violates the single subject rule
because it contains this second hidden subject.
When reviewing legal sufficiency, we do not speculate on
the hidden motives or self-interest of the sponsors. By that
same token, we do not speculate on the potential motives or
self-interest of those who object to placing the initiative on
the ballot. To the extent the proposed initiative might have
repercussions that are not apparent from the text of the initia-
tive, whether such repercussions are unintended consequences
or ulterior motives, is an argument that should be made to the
voters rather than to the Secretary or to a court conducting a
legal sufficiency review. See Hargesheimer v. Gale, 294 Neb.
123, 881 N.W.2d 589 (2016) (noting that referendum statutes
provide for disclosure of sponsors and financial contributors so
that voters can know who is backing the proposal and based on
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that information make their own decisions whether the motives
of the backers will affect their vote).
We need not delve into federal or tribal law in order to deter-
mine whether the amendment proposed by the Constitutional
Initiative could have the effect on gaming in tribal casinos
that the Secretary asserts. Such analysis is beyond the scope
of preelection single subject review. It is not a subject set forth
by the text of the initiative. To the extent the repercussions are
as the Secretary asserts, that is a matter for opponents to pre­
sent to voters who may decide the likelihood and desirability
of such repercussions. Having rejected the arguments of the
Secretary and also those of intervenors, we conclude that the
Secretary has not shown cause why the Constitutional Initiative
should not be placed on the ballot. We therefore will issue a
peremptory writ of mandamus requiring the Secretary to place
the Constitutional Initiative on the ballot.
Regulatory Initiative Does Not
Violate Single Subject Rule.
The Secretary argues that the Regulatory Initiative vio-
lates the single subject rule for the same reason that the
Constitutional Initiative does and for the additional reason that
provisions addressing taxation have no natural and necessary
connection to the regulatory scheme set forth in the initiative.
We conclude that the Regulatory Initiative does not violate
the single subject rule and that the Secretary has not shown
cause why the Regulatory Initiative should not be placed on
the ballot.
Below we consider various provisions of the Regulatory
Initiative, but we initially quote section 4(2). Section 4(2)
provides:
No more than one authorized gaming operator license
shall be granted for each licensed racetrack enclosure
within the state; provided that, it shall not be a require-
ment that the person or entity applying for or be granted
such authorized gaming operator license hold a racing
license or be the same person or entity who operates the
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licensed racetrack enclosure at which such authorized
gaming operator license shall be granted.
This language in the Regulatory Initiative indicates that
although games of chance are to be located within a racetrack
enclosure, the entity who operates such enclosure will not nec-
essarily be the operator of games of chance.
The Secretary first argues that the Regulatory Initiative
violates the single subject rule for the same reason he asserted
in connection with the Constitutional Initiative, that is, it
violates the single subject rule—because it both (1) autho-
rizes games of chance and (2) limits operation of such games
of chance to racetrack enclosures. However, the Regulatory
Initiative does not in itself “authorize games of chance.”
Instead, it states in part that “to the full extent permitted by
the Constitution of Nebraska, including amendments to the
Constitution of Nebraska adopted contemporaneously . . . , the
operation of games of chance is permitted only by authorized
gaming operators within licensed racetrack enclosures.” The
Regulatory Initiative does not itself authorize games of chance
and instead it recognizes that such authorization comes from
the constitution and that the operation of the regulatory scheme
it sets forth is effective only to the extent it is authorized by
the constitution.
The subject of the Regulatory Initiative is a regulatory
scheme for operation of games of chance that may at some time
be authorized by the constitution, and among the features of
that regulatory scheme is limiting operation of such games to
racetrack enclosures. Because authorization of games of chance
is not a subject of the Regulatory Initiative, the limitation to
racetracks is not a second subject and instead is to be consid-
ered as one of the components of the regulatory scheme.
The Secretary does not argue, and we do not find, that
the limitation to racetrack enclosures does not have a natural
and necessary connection to regulation of games of chance.
The Regulatory Initiative includes various other provisions
related to regulation of games of chance, and in other cases,
we have found that an initiative that purports to regulate a
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specific subject may include diverse components related to that
single subject.
We recently made this observation in Christensen v. Gale,
301 Neb. 19, 33, 917 N.W.2d 145, 157 (2018), where we said:
[I]n City of Fremont v. Kotas, [279 Neb. 720, 781 N.W.2d
456 (2010), abrogated on other grounds, City of North
Platte v. Tilgner, 282 Neb. 328, 803 N.W.2d 469 (2011),]
we held that an initiative petition did not violate the single
subject rule. Despite several components of the proposed
measure dealing with the subjects of occupancy, licens-
ing, electronic verification, government uses, resources,
and penalties, and the application to both landlords and
employers, we held that these subjects had a natural and
necessary connection with each other and were part of the
general subject of regulating illegal immigration.
In his letter, the Secretary rejected the objectors’ arguments
that certain of the components of the Regulatory Initiative were
not related to regulation of games of chance, and he does not
assert in his response to our alternative writ that those compo-
nents or other components of the Regulatory Initiative, other
than those discussed below, caused the initiative to violate the
single subject rule.
The Secretary does argue that the Regulatory Initiative
violates the single subject rule because it contains provi-
sions which (1) exempt licensees of the Nebraska Gaming
Commission from sales and use tax, and (2) exclude gaming
devices from the Mechanical Amusement Device Tax Act. He
argues that these “tax breaks” do not have a natural and nec-
essary connection to regulation of games of chance and that
the sponsors recognized that taxation issues are not related to
regulation because they included other tax-related issues in the
separate Tax Initiative.
We disagree. Both tax-related provisions within the
Regulatory Initiative have a natural and necessary connection
to the regulation of games of chance. Whether operators and
licensees are subject to sales and use tax and whether gaming
devices authorized in the regulatory scheme are subject to the
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mechanical amusement device tax are both issues relevant to
regulation of games of chance. In the Regulatory Initiative,
the sales and use tax exemption for licensees of the gam-
ing commission is accomplished by amending a statute that
already exempts licensees of the racing commission to include
licensees of the gaming commission. See § 77-2704.20. The
exclusion of gaming devices from the Mechanical Amusement
Device Tax Act is accomplished by adding “gaming devices”
defined in the gaming act to a list of items that are not subject
to the tax and that list already includes “pickle card dispens-
ing devices.” See § 77-3001. We think this indicates that these
provisions are related to the regulation of games of chance in
the same sense that the statutes proposed to be amended are
part of the regulatory schemes for other forms of gambling—­
horseracing and pickle cards, respectively.
We also reject the argument that including these tax-related
provisions in the Regulatory Initiative rather than the Tax
Initiative implicates the single subject rule. The mere fact that
the provisions might also have some connection to the general
subject of taxation does not mean that they do not also have
a natural and necessary connection to the regulation of games
of chance. In fact, if these provisions were included in the
Tax Initiative, it would be arguable that they have even less
connection to the purpose of that initiative than they do the
Regulatory Initiative. Whether licensees are exempted from
sales and use tax and whether gaming devices are subject to
the Mechanical Amusement Device Tax Act are issues that
seem to have only tangential connection to a tax initiative
whose purpose is to impose a tax on the revenue of games of
chance and provide for allocation for the revenue. Furthermore,
the fact that a provision may have some connection to another
subject, such as “taxation,” does not mean it does not have a
natural and necessary connection to the subject of a specific
initiative, such as “regulation.” Our analysis is not whether the
provisions could better have been included elsewhere; we only
consider whether they have a natural and necessary connection
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to the regulatory purpose of the initiative, and we conclude
that they do.
We reject the Secretary’s argument that the Regulatory
Initiative violates the single subject rule, and we conclude that
the Secretary has failed to show cause why the Regulatory
Initiative should not be placed on the ballot. We will therefore
issue a peremptory writ requiring the Secretary to include the
Regulatory Initiative on the ballot.
Tax Initiative Does Not Violate
Single Subject Rule.
The Secretary argues that the Tax Initiative violates the sin-
gle subject rule. He generally argues that the Tax Initiative is
“interwoven with—and entirely dependent on—the Regulatory
Initiative.” We reject this argument and conclude that the
Secretary has not shown cause why the Tax Initiative should
not be placed on the ballot.
The Secretary argues that the Tax Initiative and the
Regulatory Initiative are so “tightly intertwined” that they must
be considered together for single subject analysis. However, as
we discussed above, the purpose of the single subject rule is to
allow voters to vote separately on different subjects. Because
the voters can vote individually and differently on each initia-
tive presented, a single subject review focuses on the specific
initiative at issue.
Viewed in that manner, as we discussed in connection with
the Regulatory Initiative, the fact that the tax-related provi-
sions of the Regulatory Initiative and the Tax Initiative both
have a connection to the general subject of taxation does not
mean that by necessity they must, or even can, be included in a
single initiative. Single subject analysis focuses on the subjects
and provisions actually included in an initiative and not on
provisions that might have been included or that are included
in a separate initiative. Therefore, the fact that some tax-related
provisions are included in the Regulatory Initiative is not rel-
evant to our review of the Tax Initiative.
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The Tax Initiative imposes a tax on revenues from games
of chance and sets forth how the tax collections will be dis-
tributed. The imposition of a tax and the distribution of that
tax have an obvious natural and necessary connection to one
another. If a voter is asked to approve a new tax, it is natural
and necessary that the voter would want to know and control
how the taxes so collected will be used. A voter is unlikely to
support a tax if he or she does not know how the proceeds will
be used. Therefore, viewing the Tax Initiative alone, it does not
violate the single subject rule.
The Secretary argues that certain distributions provided in
the Tax Initiative, particularly that 70 percent of the collected
tax be distributed for property tax relief, constitute what single
subject precedent has characterized as impermissible “logroll-
ing.” For example, in State ex rel. Loontjer v. Gale, 288 Neb.
973, 853 N.W.2d 494 (2014), we held that a proposed ballot
measure violated the separate-vote provision of article XVI,
§ 1, of the Nebraska Constitution, which governs propos-
als by the Legislature to amend the Constitution and which
Christensen v. Gale, 301 Neb. 19, 32, 917 N.W.2d 145, 156
(2018), concluded “imposes the same requirements as the
single subject provision under article III, § 2.” The measure
at issue in State ex rel. Loontjer would have amended the
Constitution by way of one proposal to permit slot-machine-
type gambling on replayed horseraces and would direct tax
revenue from that activity, as well as from live horseracing
which was already allowed by the Constitution, to property
tax relief and education funding. We determined in State ex
rel. Loontjer that constitutional authorization of a new form
of wagering lacked a natural and necessary connection to the
measure’s proposal to the use tax revenues for property tax
relief and education and that the only purpose of including
such property tax relief in the same measure “was to enhance
the odds that voters would approve the new form of wagering,”
which effect we described as “logrolling.” 288 Neb. at 1004,
853 N.W.2d at 515.
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As noted above in this opinion, we have described logrolling
as “the practice of combining dissimilar propositions into one
proposed amendment so that voters must vote for or against the
whole package even though they would have voted differently
had the propositions been submitted separately.” Christensen v.
Gale, 301 Neb. at 31, 917 N.W.2d at 156. The Secretary’s log-
rolling argument requires that we look at all three initiatives,
or at least both the Regulatory Initiative and the Tax Initiative,
together and determine that inclusion of property tax relief in
the Tax Initiative serves as an incentive for voters to approve
the other initiatives in order to achieve such relief. We reject
the Secretary’s argument.
As described above, logrolling means a situation in which
voters are required to vote for or against the whole package
even though they would have voted differently had the propo-
sitions been submitted separately. This concern is not present
when, as here, the initiatives are submitted separately and vot-
ers may vote on each individually and can choose to vote for
all three or only for those of which they approve. For example,
a voter might not want to authorize expanded gambling and
therefore vote against authorization and/or regulation, but vote
for the tax initiative on the thought that if games of chance
are authorized by the general electorate, the voter wants those
activities taxed and the proceeds used for, among other things,
property tax relief. The voter is not forced to vote for authori-
zation in order to achieve property tax relief unless the voter
believes authorizing games of chance is an acceptable way to
achieve property tax relief.
The distribution of a tax has an obvious natural and neces-
sary connection to the imposition of that tax and therefore both
features are part of a single subject. Clearly, a voter would be
highly unlikely to vote for a tax unless he or she knew and sup-
ported the purpose to which tax proceeds would be directed.
We do not believe that including an attractive disposition of
proceeds of the tax authorized by the initiative which imposes
the tax can be viewed as a ploy to trick a voter into voting for
imposition of the tax.
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We conclude that the Tax Initiative does not violate the
single subject rule and that therefore, the Secretary has not
shown cause why it should not be placed on the ballot. We will
therefore issue a peremptory writ of mandamus requiring the
Secretary to place the Tax Initiative on the ballot.
CONCLUSION
The people have the power to amend the Nebraska
Constitution and enact statutes by the initiative process pursu-
ant to Neb. Const. art. III, § 2, which provides in part: “The
first power reserved by the people is the initiative whereby
laws may be enacted and constitutional amendments adopted
by the people independently of the Legislature.” We have
repeatedly said that the right of initiative is precious to the
people and one which the courts are zealous to preserve to
the fullest tenable measure of spirit as well as letter. We con-
clude that in response to our alternative writ, the Secretary
has not shown cause why either the Constitutional Initiative,
the Regulatory Initiative, or the Tax Initiative should not be
placed on the ballot. We therefore vacate our alternative writ
and by separate order issue a peremptory writ of mandamus
ordering the Secretary to place the Constitutional Initiative, the
Regulatory Initiative, and the Tax Initiative on the November
2020 ballot.
Writ of mandamus granted.
Funke, J., and Welch, Judge, join in this opinion.
Papik, J., not participating.
Cassel, J., concurring.
In the lead opinion, I join the sections entitled “Nature
of Case” and “Statement of Facts,” and the judgment of the
court.
The court’s decision today is dictated by the seven words
of article III, § 2, of the Nebraska Constitution stating,
“Initiative measures shall contain only one subject.” That
same section of the state Constitution reserves the power of
initiative to the people. While this court has stated that the
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power of initiative must be liberally construed to promote
the democratic process, 1 it has also recognized that a pro-
cedural requirement found in the same section of the state
Constitution in which the people reserved to themselves the
power of initiative serves to define the scope of the initiative
power. 2 This court must give “meaningful effect” to the self-
imposed limitation on that power. 3
The words in a constitutional provision must be interpreted
and understood in their most natural and obvious meaning
unless the subject indicates or the text suggests that they are
used in a technical sense. 4 It is also appropriate and helpful to
consider the evil and mischief attempted to be remedied, the
objects sought to be accomplished, and the scope of the rem-
edy its terms imply. 5
A purpose of these seven words is to avoid voter confusion
and logrolling, which is the practice of combining dissimi-
lar propositions into one proposed amendment so that voters
must vote for or against the whole package even though they
would have voted differently had the propositions been submit-
ted separately. 6 I believe all members of the court agree with
this purpose.
Where the limits of a proposed law, having natural and
necessary connection with each other, and, together, are a
part of one general subject, the proposal is a single and not a
dual proposition. 7 The controlling consideration in determining
the singleness of a proposed amendment is its singleness of
1
See Stewart v. Advanced Gaming Tech., 272 Neb. 471, 723 N.W.2d 65
(2006).
2
See State ex rel. Lemon v. Gale, 272 Neb. 295, 721 N.W.2d 347 (2006).
3
See id.
4
Id.
5
See id.
6
Christensen v. Gale, 301 Neb. 19, 917 N.W.2d 145 (2018).
7
Id.
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purpose and the relationship of the details to the general sub-
ject. 8 The general subject is defined by its primary purpose. 9
The proposed amendment to article III, § 24, of the Nebraska
Constitution states in relevant part, “This section shall not
apply to any law . . . which provides for . . . all forms of
games of chance when such games of chance are conducted
by authorized gaming operators within a licensed racetrack
enclosure.” Fundamentally, a majority of this court concludes
that this language prescribes “what” (gaming) and “where”
(racetracks), while our dissenting colleagues view the words
as dictating “what” (gaming) and “who” (racetrack hosts). But
I do not read “authorized gaming operators within a licensed
racetrack enclosure” synonomously with either existing licens-
ees or existing racetracks. Further, I do not read any of my dis-
senting colleagues to agree with the reasoning of the Secretary
of State analyzing the Constitutional Initiative, the Regulatory
Initiative, and the Tax Initiative as a single proposal. Nor do
I view any member of this court as thinking it proper to con-
sider, for purposes of article III, § 2, the effect of adoption of
the initiative upon tribal gaming.
The primary purpose of the proposal is to provide another
exception to the basic prohibition of games of chance, lotter-
ies, and gift enterprises under article III, § 24(1). The detail
of “where” is naturally and necessarily related to the “what.”
Expansion of gaming presumes some location. The racetrack
limitation merely specifies the place. This dictates that the pro-
posal contains only one “subject” within the meaning of article
III, § 2.
That is all the Secretary of State was required to deter-
mine, and our scope goes no further. The arguments for and
against the wisdom and desirability of the proposal are for the
people of this state to decide. Because only one subject was
8
Id.
9
Id.
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specified in the Constitutional Initiative, that proposal must go
to the voters.
I join the reasoning of my colleagues in the lead opin-
ion regarding application of the single subject rule to the
Regulatory Initiative and the Tax Initiative.
Heavican, C.J., Stacy, and Freudenberg, JJ., dissenting.
To the extent the plurality concludes there is just one subject
presented in the Constitutional Initiative, we respectfully dis-
agree. Because we discern two separate subjects with separate
purposes, we conclude the initiative violates the single subject
requirement of Neb. Const. art. III, § 2. We would deny the writ
and allow the Secretary of State to withhold the Constitutional
Initiative from the November 2020 ballot.
A constitution represents the supreme written will of the
people regarding the framework for their government, and
the people may amend their Constitution in any way they
see fit, provided the amendments do not violate the fed-
eral Constitution or conflict with federal statutes or treaties. 1
In 1998, the people of Nebraska amended art. III, § 2, to add
the requirement that “[i]nitiative measures shall contain only
one subject.” 2 The peoples’ power of initiative, and the self-
imposed single subject limitation on that power, are of equal
constitutional significance. 3 Just as courts must respect and
give effect to the power the people have reserved to themselves
to amend the constitution or enact legislation through initiative
measures, courts must also give meaningful effect to the single
subject requirement in art. III, § 2.
When analyzing the single subject requirement for voter
initiatives under art. III, § 2, we apply the natural and
1
State ex rel. Johnson v. Gale, 273 Neb. 889, 734 N.W.2d 290 (2007).
2
See 1997 Neb. Laws, L.R. 32CA.
3
See, e.g., State ex rel. Lemon v. Gale, 272 Neb. 295, 721 N.W.2d 347
(2006) (right to initiative and resubmission clause limiting that right have
equal constitutional significance).
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necessary connection test. 4 Under that test, the inquiry is
whether all of the provisions of an initiative have a “‘“natural
and necessary connection with each other, and, together, are a
part of one general subject.”’” 5 When there are separate pro-
visions in a proposed constitutional amendment, they “must
be closely related in purpose to be presented to the electorate
for a single vote.” 6 This is so because “[w]ithout a unifying
purpose, separate proposals in a ballot measure necessarily
present independent and distinct proposals that require a sepa-
rate vote.” 7
When analyzing the single subject requirement, we are
mindful that its purpose is to “avoid voter confusion and
logrolling.” 8 We have described logrolling as “the practice of
combining dissimilar propositions into one proposed amend-
ment so that voters must vote for or against the whole package
even though they would have voted differently had the propo-
sitions been submitted separately.” 9 We also have described
logrolling as “including favored but unrelated propositions
in a proposed amendment to ensure passage of a provision
that might otherwise fail.” 10 Generally speaking, logrolling is
criticized because it leads to the adoption of measures which,
when considered separately, do not enjoy true majority sup-
port, and it presents voters with the “Hobson’s choice” of
either choosing to vote for a measure they dislike in order to
secure passage of a measure they favor or, conversely, being
4
See Christensen v. Gale, 301 Neb. 19, 917 N.W.2d 145 (2018).
5
Id. at 32, 917 N.W.2d at 156.
6
State ex rel. Loontjer v. Gale, 288 Neb. 973, 1000-01, 853 N.W.2d 494,
513 (2014).
7
Id. at 1003, 853 N.W.2d at 515.
8
Christensen v. Gale, supra note 4, 301 Neb. at 31, 917 N.W.2d at 156.
9
State ex rel. Loontjer v. Gale, supra note 6, 288 Neb. at 995, 853 N.W.2d
at 510.
10
Id.
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forced to vote against a measure they favor because it has been
joined with a measure they disfavor. 11
The plurality and dissenting opinions do not reach separate
results because they disagree on any of these fundamental
principles of our constitutional single subject jurisprudence.
Instead, we reach different results because we have different
views regarding the “subject” of the initiative.
We have observed that “whether a proposed amendment’s
provisions deal with a single subject matter depends on
how narrowly or broadly the subject matter is defined.” 12
Consequently, the judicial exercise of defining the subject of
a ballot initiative is a critical first step. To do so, a court must
discern the “primary purpose” 13 of the initiative.
As it regards the Constitutional Initiative, the plurality
appears to have accepted the sponsors’ framing of the initia-
tive’s primary purpose. The sponsors describe their objective
as amending the constitution to authorize “all forms of games
of chance . . . within licensed racetrack enclosures in the state.”
Similarly, the plurality defines the subject of the Constitutional
Initiative as “ask[ing] voters if they want games of chance to
be permitted within racetrack enclosures.”
We reject the notion that a sponsor’s articulation of an
initiative’s purpose must control the court’s definition of the
initiative’s subject. To give meaningful effect to the single
subject requirement under art. III, § 2, courts cannot allow
the general subject of a voter initiative measure to be defined
at such a high level of abstraction that the primary purpose
of the single subject requirement—to prevent logrolling—is
frustrated.
11
See Richard Briffault, The Single-Subject Rule: A State Constitutional
Dilemma, 82 Alb. L. Rev. 1629 (2019).
12
State ex rel. Loontjer v. Gale, supra note 6, 288 Neb. at 1001, 853 N.W.2d
at 514.
13
Christensen v. Gale, supra note 4, 301 Neb. at 32, 917 N.W.2d at 156.
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Courts and commentators alike have acknowledged the dif-
ficulty inherent in defining the subject of voter initiatives, 14
and we do not intend to suggest there is a simple mathematical
or linguistic formula to correctly identify the subject of every
initiative. Indeed, it has been suggested that when applying
single subject rules, neither judges nor scholars have been able
to define a “subject” with precision. 15
We do not write separately to propose any new test for
discerning the subject of an initiative. Rather, we faithfully
apply our precedent which states that “the general subject of a
proposed ballot measure is defined by its primary purpose.” 16
When we review the Constitutional Initiative through this
lens, we discern more than one purpose, and thus more than
one subject.
The primary purpose of the ballot initiative is to amend the
constitution to authorize “all games of chance” in Nebraska.
This necessarily means it would authorize casino-style gam-
ing. A secondary purpose of the amendment is to restrict that
expanded gaming to only “licensed racetracks.” The plurality
does not appear to disagree there are multiple proposals inher-
ent in the text of the initiative, but it concludes there is a natu-
ral and necessary connection between authorizing expanded
casino-style gaming on the one hand, and deciding where such
expanded gaming should be located on the other hand. If the
purpose of the provision to restrict expanded casino-style gam-
ing to racetracks was only to identify a geographic location for
such gaming, we would agree with our colleagues.
But the purpose of the provision restricting expanded casino-
style gaming to “within licensed racetracks” is not about geog-
raphy. It is about money. This initiative does more than just
14
See, e.g., Briffault, supra note 11.
15
Robert D. Cooter & Michael D. Gilbert, A Theory of Direct Democracy
and the Single Subject Rule, 110 Colum. L. Rev. 687 (2010).
16
State ex rel. Loontjer v. Gale, supra note 6, 288 Neb. at 1002, 853 Neb. at
514. Accord Christensen v. Gale, supra note 4.
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identify the location where expanded gaming will occur; it also
limits the type of businesses that can profit from hosting such
gaming in Nebraska, and thus creates in licensed racetracks
a constitutionally protected monopoly on hosting expanded
gaming. Hidden in the folds of the question whether to autho-
rize expanded casino-style gaming in Nebraska is the separate
question whether only racetracks should be given an exclusive
constitutional right to host such gaming. That separate question
has neither a natural nor a necessary connection to whether
expanded casino-style gaming should be authorized in the first
instance. It presents a separate subject which, under art. III,
§ 2, must be put to the voters separately.
Combining the proposal to authorize expanded gaming with
the proposal to limit such gaming to only licensed race-
tracks is a classic example of logrolling. Voters who may
favor expanded casino-style gaming but oppose allowing only
licensed racetracks to host and thus profit from such gaming
are faced with an all or nothing proposition. Either they are
forced to vote for something they oppose in order to obtain
passage of what they support or, conversely, they are forced to
vote against something they support in order to prevent pas-
sage of something they oppose.
The plurality finds a natural and necessary connection
between expanded gaming and racetracks, because one form
of gaming (horseracing) is already authorized at racetracks.
Reasonable people can debate whether there is a natural con-
nection between casino-style gaming and horseracing. But we
can conceive of no natural and necessary connection between
the proposal to authorize expanded casino-style gaming in
Nebraska and the proposal to grant racetracks the exclusive
constitutional right to host and thus profit from that gaming.
Just as the favorable tax proposal in State ex rel. Loontjer
v. Gale 17 was found to be a separate subject with no natural
and necessary connection to expanded horse wagering, the
17
State ex rel. Loontjer v. Gale, supra note 6.
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favorable racetrack proposal here has no natural and neces-
sary connection to expanded casino-style gaming. Simply put,
the Constitutional Initiative here violates the single subject
requirement because it fails the natural and necessary test, and
is quintessential logrolling.
We would hold that the Constitutional Initiative violates the
single subject rule and would find the Secretary of State has
shown cause why the Constitutional Initiative should not be
placed on the November 2020 ballot.