In a unanimous 7-0 decision, the Nebraska Supreme Court on Friday, Sept. 13, ruled that the ballot measure seeking to repeal Legislative Bill 1402 was not an appropriation and therefore is subject to the referendum process under the Nebraska Constitution.

According to a story in the Nebraska Examiner, the court’s decision “left voters with the choice about the future of the latest remake of a scholarship or voucher program to help families offset the costs of private K-12 education.”

Daniel Gutman, an attorney for the public school advocates, argued that LB1402, by benefiting private schools, unconstitutionally directed state funds to private institutions, something prohibited by Article VII, Section 11, of the Nebraska Constitution.

According to the Nebraska Examiner, the “court sidestepped that question, ruling instead on the narrower question of whether a law without its associated appropriations bill could be repealed by public referendum, ruling that it can.”

Tim Royers of Support Our Schools, the new president of the Nebraska State Education Association, said his group is “thrilled that the Supreme Court protected one of our most important rights as Nebraskans, and we look forward to repealing LB1402 in the upcoming election.” 

According to the Nebraska Examiner, Secretary of State Bob Evnen – the target of the lawsuit – “complicated the lawsuit by filing a pledge to force another lawsuit if the court sidestepped the key legal question and instead ruled on a technicality,” adding that the “court did not seem pleased with his change in position.”

Chief Justice Mike Heavican argued that Evnen had already “made a determination that the referendum was valid and sufficient” and that “once done” he was not aware of a “process by which the secretary can change his mind and ‘rescind his legal sufficiency determination and not place the referendum on the ballot.’”