Video slot backers lose last-ditch effort to get measure on Nebraska ballot
By The Associated Press
09.26.02
LINCOLN, Neb. — A federal judge rejected a last-ditch attempt to get a proposed constitutional amendment on the Nov. 5 ballot that could legalize video slot machines in Nebraska.
After hearing arguments yesterday morning, U.S. District Judge Richard Kopf immediately rejected a request to suspend a ruling by a Lancaster County judge preventing the measure from appearing on the ballot.
"There is a real possibility of harming the election process if I force the secretary of state to try to rework the ballot at this late date," Kopf wrote in his three-page decision. "Properly run elections are not like faucets. They cannot be turned on and off at will."
Kopf also noted that the Nebraska Supreme Court has an appeal pending and could order the amendment to be placed on the ballot in a future election. He said it also would not serve the public interest for a federal court to interject itself into what is essentially a state issue.
The group behind the petition initiative — Nebraskans for Local Control — did not head the federal challenge. Instead, Crawford bar owner John Guethlein, Crawford City Council member Edwin Kuhnel and La Vista Mayor Harold Anderson filed the lawsuit.
Their attorney, Diana Vogt, had argued that the state violated her clients' right to free speech and due process by taking the issue off the ballot.
She said after the ruling that an appeal of Kopf's decision to the 8th U.S. Circuit Court of Appeals is unlikely, especially since county clerks must have absentee ballots printed by Sept. 30.
Vogt had argued that measures passed by the Legislature are not subject to constitutional scrutiny by the courts until after they become law and that the same rules should apply to the gambling proposal.
"There's absolutely no way ... that they can know beforehand," she said. "The people are being deprived of their right to express their view on this issue."
Vogt said that not allowing the issue on the ballot would have a chilling effect and that it could dissuade people from trying to organize petition efforts in the future.
Steve Grasz, the attorney for the anti-gambling group Gambling With the Good Life, hailed Kopf's ruling.
"The arguments made it very clear that there was no basis for a temporary restraining order," Grasz said. "They were not able to show irreparable harm."
Nebraskans for Local Control turned in 178,000 petition signatures, far more than the 109,000 needed, to get the measure on the ballot.
But Lancaster County District Judge Paul Merritt Jr. ruled the measure violates a 1998 constitutional amendment limiting petition initiatives to one subject.
The Nebraska Supreme Court ruled last week that it would hear an appeal of Merritt's decision, but not in time to get it on the ballot.
The high court also denied a request for a bond that would allow the amendment to be put on the ballot while the appeal is considered.
Kopf said during yesterday's hearing that nothing would prevent the measure form getting on the ballot in the future if the state Supreme Court overruled Merritt's decision.
Secretary of State John Gale certified the official election ballot last week without the petition initiative on it.