Fairness for Girls sponsors argue ballot language is 'core political speech'

"Your honor, that is absolutely core political speech," former state Sen. Andrew La Grone said at a hearing Friday. 

Secretary of State Bob Evnen last month said the proposed constitutional amendment petition had met the signature threshold required to appear on the Nov. 3 ballot. 

Following the news, Cara Ullman, a registered voter in Lancaster County, sued to block it, first trying a direct filing with the Nebraska Supreme Court.

When the state's high court denied it, Ullman's attorneys filed it in Lancaster County District Court, where Judge Lori Maret heard expedited arguments Friday for injunctive relief and a cross motion to dismiss.

The complaint against Evnen and initiative sponsors alleges the object statement on the face of the initiative had failed to meet statutory requirements.

By state law, an object statement must describe "the legal effect of the filing of the petition and the object sought to be secured by submitting the measure to the voters" and appear at the top of initiative and referendum petition forms in Nebraska.

Specifically here, the object statement said: "The object of this petition is to amend the Nebraska Constitution to establish constitutional protections for sex-separate athletics to ensure equal access to athletic opportunities for females." 

Ullman said she signed it by mistake not understanding "the true contents of the proposed law." 

On Friday, her attorney, Sydney Hayes, said the object statement says nothing about what it will do, which is to require public schools, colleges and universities, as well as private schools that compete athletically against them, to categorize or designate all sports and teams based on biological sex and prohibit all students of the male sex from participating in sports designated for females.

"It doesn't adequately apprise voters of anything," she argued.

Hayes said the sponsors and Evnen both say the object statement only must tell voters what sponsors are seeking to do — in this case amend the state constitution — and their subjective impression of what they think it will accomplish.

She said they say they don't have to actually describe what the measure is going to add to the constitution.

"That creates an open season for big, incomplete and misleading object statements, and it makes the initiative process less intelligible, not more," Hayes said. 

Deputy Solicitor General Zachary Pohlman, who represents Evnen, said Nebraska State Statute 32-1401 requires sponsors to include a "concise statement in large type of the legal effect of the filing of the petition and the object sought to be secured by submitting the measure to the voters."

He argued this initiative clearly satisfies that. And the full language of the measure is attached, if a voter wants to know more. 

Pohlman said no court has ever withheld an initiative from the ballot on the grounds that its object statement didn't comply with the statute.

"The secretary would ask the court to not make this the first one," he said. 

La Grone said, through the petition process, voters are exercising the legislative function reserved to them in the state constitution, and that is due separation-of-powers deference.

And, he said, the object statement sits at the front of that communication with voters arguing why this policy is what the sponsors want to do.

"Therefore, there is no way the state can police the content of that statement," he argued.

He said the sponsor's chosen framing, emphasis or persuasive description in the object statement go to the heart of the initiative process and implicates the First Amendment.

Hayes, who got the last word at the hearing, said effectively La Grone's argument was that all petition sponsors have a right to say whatever they want about the initiative in the object statement, "even if it's misleading."

"It is not a violation of the First Amendment to require sponsors who are trying to change the law or to change the constitution to inform voters of what that change is," she argued.

Without asking questions, Judge Maret took the matter under advisement and said she would issue a written order.

Sept. 11 is the last day for the Secretary of State's office to certify candidates, offices and issues to be placed on the statewide ballot.