Execution on the Ballot: Lessons for Judicial Review of Ballot Measures from the Death Penalty Referendum in Nebraska

• Publication year: 2021

99 Nebraska L. Rev. 254. Execution on the Ballot: Lessons for Judicial Review of Ballot Measures from the Death Penalty Referendum in Nebraska

Execution on the Ballot: Lessons for Judicial Review of Ballot Measures from the Death Penalty Referendum in Nebraska

Comment ^[*]

TABLE OF CONTENTS

I. Introduction .......................................... 255

II. Background ........................................... 257
A. Current Climate: Increased Voter-Led Ballot Measures ......................................... 257
1. Recent Trend Toward Policy Creation Through Voter-Led Ballot Measures ..................... 257
2. Reasons for the Trend: Americans' Heightened Distrust of Government and the Political Process ........................................ 258
3. Voter-Led Ballot Measures Are Often Challenged in State Courts, Making Courts an Important Player in the Ballot Measure Process ........................................ 260
B. Judicial Review of Ballot Measures: Three Perspectives ....................................... 262
1. Perspective One: Ballot Measure Policies Reflect the Will of the People, and Courts Should Therefore Be Highly Deferential to Voters' Choice ......................................... 262
2. Perspective Two: The Non-Legislative Origin of Ballot Measure Policies Mandates a Heightened Level of Judicial Scrutiny ...................... 265

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3. Perspective Three: Courts Should Examine Ballot Measures with the Same Level of Scrutiny Used for Comparable Policies Passed Through the Legislature ....................... 270
C. Nebraska's Repeal & Reinstatement of the Death Penalty: A Case Study ............................. 271
1. Background ................................... 271
2. Hargesheimer v. Gale: The Pre-Election Challenge ..................................... 273
3. The Election and Aftermath: Ballot Confusion, Subsequent Legal Challenges, and an Execution .................................. 274

III. Analysis .............................................. 277
A. Lessons from Nebraska: Adopting a Rule of PreElection Deference and Post-Election Legislative Mirroring ......................................... 277

IV. Conclusion ............................................ 282

I. INTRODUCTION

In 1934, a group of Nebraskans, excited about the possibility of a new form of efficient, transparent ^[1] state government, collected roughly sixty thousand signatures to place the following language on the general election ballot:

An amendment to the Constitution of Nebraska providing that beginning with the regular season of the legislature in 1937 the legislative authority of the state shall be vested in a legislature consisting of one house of not less than thirty nor more than fifty members, the members to be nominated and elected in a non-partisan manner. ^[2]

Nearly 60% of voters voted in support of the initiative and Nebraska adopted the only unicameral, non-partisan state legislature in the United States. ^[3] Like the introduction of ballot measures during the Progressive Reform movement in the early twentieth century, the creation of Nebraska's Unicameral responded to a desire to curb abuses of power and corruption in government. ^[4] While Nebraskans do not use

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ballot measures nearly as frequently as other states, ^[5] ballot measures play an important role in the state's history and raise questions about the role courts should play in reviewing challenges to ballot measures.

This Comment argues that the appropriate level of judicial review of ballot measures is (1) high deference to voters and "[liberal construction] to promote the democratic process" ^[6] in reviewing procedural challenges before the election, and (2) "legislative mirroring" for challenges to newly enacted laws after an election. This Comment uses the repeal and reinstatement of the death penalty in Nebraska as a case study on the use of ballot measures, the limitations of using ballot measures to create public policy, and the important role of Nebraska courts in recognizing that ballot measures are both "[t]he first power reserved by the people" ^[7] and the expression of a "majority . . . united by a common interest" where "the rights of the minority will be insecure." ^[8]

Section II.A introduces the current trend toward more voter-led ballot measures in states across the country. Additionally, section II.A examines the reasons for this trend and how ballot measures provide a solution to voters' heightened disillusion with governmental institutions. A discussion of judicial responses to legal challenges to ballot measures follows in section II.B, which includes three different perspectives on the role courts should assume in reviewing the measures. Then, section II.C uses the death penalty ballot referendum in Nebraska as a case study, examining the background of the issue, the pre-election challenge to the ballot measure in Hargesheimer v. Gale, and subsequent legal challenges post-election. Part III argues that the voter-deferential approach adopted by Nebraska courts should continue to be applied pre-election, but post-election, laws enacted through ballot measures should be reviewed with the same level of scrutiny applied to comparable laws passed by the legislature. Finally, the conclusion in Part IV discusses the potential implications of the voter-led ballot measure trend in upcoming elections.

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II. BACKGROUND

A. Current Climate: Increased Voter-Led Ballot Measures

1. Recent Trend Toward Policy Creation Through Voter-Led Ballot Measures

Over the past few years, and particularly since the November 2016 election, legislative change through voter-led ballot measures has trended upwards. ^[9] This Comment uses the term "ballot measures" broadly to refer to instances where proponents of a particular policy collect a designated number of signatures to place the issue on an election ballot and allow voters to directly decide whether to support or oppose the issues without relying on elected officials. ^[10] During the 2018 elections, there were more than 150 ballot measures ^[11] in thirty-seven states. ^[12] The initiatives covered some of the country's most contentious issues: health care, criminal justice reform, legalization of marijuana, transgender rights, and voting rights. ^[13]

Before the recent upward trend in ballot measures, there was a long-term trend of decreasing ballot measures in states since 2006, largely because state legislatures put fewer constitutional amendments on ballots. ^[14] However, 2016 marked a turnaround with "an un-

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deniable increase in the interest and the number" of ballot measures. ^[15] The total number of voter-led ballot measures that made it to the ballot in 2016 more than doubled the total amount from 2014. ^[16] This means that while state legislatures have been putting fewer issues on the ballot, voters themselves have been rapidly increasing the number of citizen-led measures. ^[17] Perhaps most significantly, ballot measures are becoming a more important vehicle for changing public policy in conservative states that have not traditionally used them, including Nebraska. ^[18]

2. Reasons for the Trend: Americans' Heightened Distrust of Government and the Political Process

The increase in voter-led ballot measures corresponds with Americans' heightened distrust of government and disillusion with voters' ability to effect change through the political process. ^[19] According to the Economist's annual Democracy Index report, the United States qualified as a flawed democracy for the third year in a row in 2018. ^[20] Explaining why voters seek alternative ways to change policy, the report states:

The US has fallen in the global rankings over the past decade . . . . This primarily reflects a deterioration in the functioning of government category, as political polarisation has become more pronounced and public confidence in institutions has weakened. Public frustration with institutions has been brewing for years . . . . ^[21]

While public frustration has been deepening for years, it recently reached a tipping point as President Donald Trump "tapped into parti-

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san tensions," ^[22] continuing Congress's gridlock and ineffectiveness- so much so that members of Congress themselves express frustration with the disfunction. ^[23] Further, two-thirds of adults in the U.S. think that other Americans have little to no confidence in the federal government, and most think that faith in the government-and one an-other-continues to shrink. ^[24] The majority of Americans also believe that the distrust in other citizens and the government makes it more difficult to solve some of the country's most pressing problems. ^[25]

In this environment of heightened distrust of political and governmental institutions, ballot measures serve a variety of benefits and give voters an outlet to directly decide policy issues without relying on elected officials. Citizen-led ballot measures provide an opportunity for voters to use direct democracy to bypass their state legislatures and create new laws, particularly...