Hansen, 092419 NEAGO, AGO 19-012

Case DateSeptember 24, 2019
CourtNebraska
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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT