Senator Matt Hansen
AGO 19-012
No. 19-012
Nebraska Attorney General Opinion
State of Nebraska Office of The Attorney General
September 24, 2019
SUBJECT:
Constitutionality of the Appointment of County Election
Commissioners and their Chief Deputies
REQUESTED
BY: Senator Matt Hansen Nebraska State Legislature
WRITTEN
BY: Douglas J. Peterson, Attorney General, Lynn A. Melson,
Assistant Attorney General
INTRODUCTION
You
have requested an opinion from this office concerning the
appointment of county election commissioners and their chief
deputies. You note that Neb. Const, art. IX, § 4 states that
"[t)he Legislature shall provide by law for the election
of such county and township officers as may be necessary. . .
." Your two questions are as follows:
1.
Whether the election commissioners provided for under Neb.
Rev. Stat. §§ 32-207 and 32-211 are county officers
under Nebraska Article IX, Section 4 of the
Nebraska Constitution.
2. If
election commissioners are county officers, whether the
appointment of election commissioners and their deputies
violates Article IX, Section 4 of the Nebraska Constitution.
You
explain that you are "considering legislation that would
make the offices of election commissioner and deputy election
commissioner subject to popular vote rather than appointment
by the Governor and county boards." Therefore, we will
also discuss whether chief deputy election commissioners are
county officers who must be elected pursuant to Neb. Const,
art. IX, § 4.
ARTICLE
IX, § 4 AND APPLICABLE STATUTES
Neb.
Const, art. IX, § 4 provides: "The Legislature shall
provide by law for the election of such county and township
officers as may be necessary and for the consolidation of
county offices for two or more counties; Provided,
that each of the counties affected may disapprove such
consolidation by a majority vote in each of such
counties."
Turning
to the statutes most relevant to your questions, Neb. Rev.
Stat. § 32-207 (2016) provides that "[t]he office of
election commissioner shall be created for each county having
a population of more than one hundred thousand inhabitants.
The election commissioner shall be appointed by the Governor
and shall serve for a term of four years or until a successor
has been appointed and qualified." Currently, Douglas,
Lancaster, and Sarpy counties have election commissioners
appointed by the Governor.
In
those counties having a population of more than one hundred
thousand inhabitants, the election commissioner must appoint
a chief deputy election commissioner who is a member of a
different political party than the election commissioner.
Neb. Rev. Stat. §32-209(2016).
Neb.
Rev. Stat. § 32-211 (2016) provides that the county board of
each county with not less than twenty thousand nor more than
one hundred thousand inhabitants "may" create the
office of election commissioner and shall appoint that
election commissioner. It is our understanding that,
currently, four counties have election commissioners
appointed by their county boards.
Section
32-211 further provides that, if an election commissioner is
appointed by a county board, the board also has the option of
appointing a chief deputy election commissioner of a
different political party than the election commissioner.
Neb.
Rev. Stat. § 32-218 (2016) provides that the county clerk
will perform the duties assigned to the election
commissioner, except in those counties which have an election
commissioner pursuant to § 32-207 or § 32-211.
ANALYSIS
I.
Whether Election Commissioners Are County Officers.
Your
first question is whether election commissioners (and chief
deputy election commissioners) are county officers. The
Nebraska Supreme Court has discussed the indicia of public
office on multiple occasions. Characteristics of a public
office include the creation of the position by constitution
or a statute, a definite or fixed term of office, a required
oath...