Court invalidates 1943 Nebraska law used to invalidate petition signatures
By The Associated Press
09.02.02
OGALLALA, Neb. — A petition process defeated after 315 signatures were thrown out on a technicality from a 1943 state law has new life after a judge ruled that statue unconstitutional.
The effort to recall two City Council members failed after City Clerk Jane Skinner declared the signatures on recall petitions invalid in June.
Skinner said she invalidated many of those because at least one of the circulators and several of those that signed the petition were not registered voters on the day the petition was issued, per the 1943 Nebraska law.
Petition organizer Tanya Gieschen sued to have those signatures included.
Keith County District Judge John Murphy last month agreed and ordered Skinner to recount 118 names she declared invalid in June.
Murphy said the people's right to express an unobstructed political opinion is at issue.
He cited the U.S. Supreme Court's 1999 ruling in Buckley v. American Constitutional Law Foundation Inc. that initiative petition circulators in Colorado need not be registered voters.
"If a residency requirement fetters free speech in the initiative process in Colorado, it certainly fetters free speech in the recall process in Nebraska," Murphy wrote.
Because of the ruling 73 names must be counted, even if circulators were not registered voters of Ogallala. Another 45 names could also count, even if signatories registered on the day they signed the petition.
The recall petition needed 553 valid signatures to recall both council members.
The petition to recall councilwoman Mary Lou Heelan had 489 valid signatures after Skinner disqualified 157. The petition to recall council chairman Leonard Johnson ended up with 493 valid signatures after 158 were thrown out.
If the petitions are deemed valid after Skinner again checks those name, she will notify Johnson and Heelan that they can either resign or wait for the results of a special election.
The decision "shows that when the facts and the law are reviewed the democratic process works," said Gieschen, who also is an Ogallala City Council candidate.