Bernbeck v. Gale (2011)

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Bernbeck v. Gale is a Nebraska lawsuit which successfully challenged two state laws governing the initiative process. It was decided by United States District Court for the District of Nebraska on August 30, 2011. The court overturned the state's circulator and sponsor residency requirements and upheld the state's circulator age requirement and pay-per-signature ban. It was decided on the same day as Citizens in Charge v. Gale, which also challenged Nebraska's residency requirement.

Nebraska's residency requirement and ban on the per-signature payment method were imposed by Nebraska Legislative Bill 39 in 2008.


The plaintiffs, Kent Bernbeck, Kelsey Bernbeck, Craig Bernbeck, Jonathan Alley, and Joe Kingsley, were involved in a local petition drive in Stanton, Nebraska which sought to mandate improvements to the municipal pool. A water slide had been donated to the pool through a student fundraising effort. After the city decided against installing the slide, Bernbeck decided to place a local measure on the ballot, requiring the city to install the slide. The petition drive collected 176 signatures in favor of the measure, 29 more than the required 147. However, city officials rejected the petition, rejecting 79 signatures and declaring Kent Bernbeck ineligible to act as a chief sponsor.[1]

A more detailed breakdown of the plaintiffs is as follows:[1][2]

  • Kent Bernbeck: Ruled ineligible to act as chief sponsor of the measure since he was not a resident of Stanton, Nebraska.
  • Kelsey Bernbeck: Daughter of Kent Bernbeck. She collected a portion of the 79 invalid signatures. Her signatures were rejected since she was not a registered voter (she was only 17 at the time).
  • Jonathan Alley: Nephew of Kent Bernbeck. He collected a portion of the 79 invalid signatures. His signatures were rejected since he was a resident of Nevada at the time.
  • Craig Bernbeck: Kent Bernbeck wanted to hire Craig Bernbeck on a pay-per-signature basis but was not permitted under state law.
  • Joe Kingsley: A petition signer whose signature was rejected because he signed a form circulated by Kelsey Bernbeck.


Circulator residency requirement

See also: Residency requirements for petition circulators

Bernbeck, et al. challenged Nebraska's law requiring petition circulators to be registered voters and, thus, residents of the state. The court overturned the state's residency requirement, citing the holding in Citizens in Charge v. Gale decided earlier that day. In Citizens in Charge v. Gale, the court found:

"The court finds that the plaintiffs and intervenors have... showed an infringement on their rights to associate. Plaintiffs’ and intervenors’ argument that this ban inhibits their right to associate is a valid one. The out-of-state ban imposes a heavy burden on the plaintiff-intervenors efforts to promote their political views in Nebraska. The defendant has not met its burden in this regard. As stated previously herein, the defendant offered very few instances of fraud. Further, there are less restrictive alternatives for bringing petition circulators into the subpoena jurisdiction of this court."[3]

Laws restricting the exercise of First Amendment rights must be "narrowly tailored to achieve a compelling state interest."[4] Ultimately, the court found that Nebraska's residency requirement did not meet this standard given that less restrictive alternatives are available to the state for fraud prevention/prosecution.

DocumentIcon.jpg See law: Nebraska Revised Statutes, Chapter 32, Section 629 & Chapter 32, Section 110

Bernbeck, et al. also challenged Nebraska's law requiring local initiative sponsors to reside in the municipalities where the measure is being proposed. Although the court noted that plaintiffs had not provided a "significant argument" or case law to show that the law constituted a violation of their rights, the court decided to overturn the law, finding that it did not serve a compelling state interest. The court cited Lux v. Judd, which in turn cites the Meyer v. Grant.[1] In Meyer, the US Supreme Court found that:

"The argument that justification is found in the State's interest in assuring that an initiative has sufficient grass roots support to be placed on the ballot is not persuasive, since that interest is adequately protected by the requirement that the specified number of signatures be obtained."[5]

Although Meyer dealt with the issue of paying petition circulators, the defendants in Bernbeck v. Gale made a similar argument for the sponsor residency requirement, arguing that it ensured local support for the measure.[1]

DocumentIcon.jpg See law: Nebraska Revised Statutes, Chapter 18, Section 2515

Circulator age restriction

Bernbeck, et al. also challenged Nebraska's law requiring petition circulators to be 18 years of age. However, given that the law merely delays the exercise of a right, the court applied a looser standard of scrutiny, citing Stiles v. Blunt. Ultimately, the court decided to uphold the law, citing remarks made in Buckley v. American Constitutional Law Foundation. Although the Supreme Court in Buckley did not render a decision on circulator age requirements, it made the following remark on the lower court's ruling:

"As the Tenth Circuit recognized in upholding the age restriction, the six-month limit on circulation, and the affidavit requirement, States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally."[6]

For these reasons, the District Court in Bernbeck determined that the restriction has a rational basis and, therefore, is not in violation of the Constitution.[1]

DocumentIcon.jpg See law: Nebraska Revised Statutes, Chapter 32, Section 629 & Chapter 32, Section 110

Pay-per-signature ban

See also: Pay-per-signature restrictions

Bernbeck, et al. also challenged Nebraska's law banning the payment of petition circulators by the signature. The court noted that the plaintiffs had not shown that the ban burdened their signature gathering efforts. Given this, the court held that an earlier case upholding these bans, Initiative & Referendum Institute v. Jaeger, should rule. In Jaeger, the Eighth Circuit Court of Appeals found that:

"In light of the State's important interest in preventing signature fraud, the evidence of fraud the State has produced, and the lack of any evidence from the appellants showing that the ban on commissioned payment burdens their ability to collect signatures...the record reveals sufficient evidence regarding signature fraud to justify the State's prohibition on commission payments"[7]

Given the similarities between the cases, the court in the District Court in Bernbeck decided to uphold the pay-per-signature ban.

DocumentIcon.jpg See law: Nebraska Revised Statutes, Chapter 32, Section 630(g)


Given that both parties won and lost on particular issues, an appeal by one or both sides is expected.[8] In a press release, Bernbeck stated that he was consulting with his attorney to consider an appeal. However, as of June 2012, no appeal had been filed.

See also

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