AGO 97058.

• Court: Nebraska

Nebraska Attorney General Opinions 1997. AGO 97058. DATE: November 5, 1997SUBJECT: Constitutionality of Neb. Rev. Stat. § 32-1303(2), Requiring Recall Petition Circulators to be Registered Voters REQUESTED BY: Secretary of State Scott MooreWRITTEN BY: Don Stenberg, Attorney General Steve Grasz, Deputy Attorney General Introduction You have requested an Attorney General's Opinion concerning the constitutionality of Neb. Rev. Stat. § 32-1303(2). This statute regulates the circulation of recall petitions. Specifically, you have inquired as to the status of this statute in light of the court's decision in Bernbeck v. Moore, 936 F.Supp. 1543 (D.Neb. 1996). Shortly after your opinion request was made, the United States Court of Appeals for the Eighth Circuit affirmed the Bernbeck decision. Bernbeck v. Moore, ___ F.3d ___, 1997 WL 629238 (8th Cir. 1997). In addition, the Tenth Circuit Court of Appeals recently addressed the validity of a Colorado statute requiring initiative and referendum circulators to be registered voters. American Constitutional Law Foundation, Inc. v. Meyer, 120 F.3rd 1092 (10th Cir. 1997). Therefore, we will examine Neb. Rev. Stat. § 32-1303(2) in light of all these decisions. Nebraska's Recall Petition Statute Section 32-1303(2) requires that circulators of recall petitions be registered voters. The statute specifically provides: Petition circulators shall conform to the requirements of sections 32-629 and 32-630. Each circulator of a recall petition shall be a registered voter and qualified by his or her place of residence to vote for the office in question on the date of the issuance of the initial petition papers. Neb. Rev. Stat. § 32-1303(2) (Cum.Supp. 1996) (emphasis added). No reported court decision has examined this specific Nebraska statute. As a general rule of statutory construction, a statute is presumed valid. Callan v. Balka, 248 Neb. 469, 481, 536 N.W.2d 47, 54 (1995). However, the validity of Section 32-1303(2)'s requirement that recall petition circulators be registered voters has clearly been called into question by recent decisions from three courts. The Bernbeck Decision The U.S. District Court for the District of Nebraska examined Nebraska's voter registration requirement for initiative petition circulators in Bernbeck v. Moore, 936 F.Supp. 1543 (D.Neb. 1996). Because of its importance to the issue at hand, we will set forth relevant portions of the District Court's decision at length: As in Meyer [v. Grant 486 U.S. 414, 108 S.Ct. 1886 (1988)], I find and conclude that the statutory voter- registration and related 30-day-waiting-period restrictions on petition circulators reduce the "available pool of circulators," 486 U.S. at 419, 108 S.Ct. at 1890, and "restrict political expression in two ways." Id. at 422-23, 108 S.Ct. at 1892. First, the restrictions "limit [ ] the number of voices who will convey [the organizer's] message and the hours they can speak and, therefore, limit [ ] the size of the audience." Id. at 422-23, 108 S.Ct. at 1892. . . . Second, the restrictions "make [ ] it less likely that [the organizers] will garner the number of signatures necessary to place the matter on the ballot, thus limiting their ability to make the matter the focus of statewide discussion. . . . ...