Courts more involved in election spats

LINCOLN, Neb. --If it seems that the courts are more involved in settling election spats these days, it's not your imagination.

It's part of a national trend, said Richard L. Hasen, an election law specialist at Loyola Law School in Los Angeles.

Hasen did a study that showed a marked increase in election litigation since the disputed 2000 presidential election in Florida, where George W. Bush was ultimately declared the winner over Al Gore by the U.S. Supreme Court.

Hasen found that there was an average of 96 election-related cases a year nationally from 1996 through 1999, compared to an average of 254 cases per year from 2001 through 2004.

"This trend is likely to continue into the 2006 and 2008 elections, especially with new controversies over voter identification and voter registration laws," he told The Associated Press.

And Nebraska is not immune.

One pending Nebraska lawsuit was filed by the leader of a group pushing for casino gambling that challenges a decision by Secretary of State John Gale to not allow the question on the November ballot.

Greg Lemon, of The Committee for Better Schools and More Jobs in Nebraska Inc., filed a lawsuit in Lancaster County District Court challenging Gale's ruling that the casino measure violates the state constitution's limit on submitting similar ballot proposals more than once in three years.

Nebraskans voted down two casino plans in November 2004.

Among other court actions in Nebraska:

-- The state Supreme Court earlier this month rejected an attempt get U.S. Rep. Tom Osborne on the gubernatorial ballot as a write-in candidate. Osborne lost the GOP primary to Heineman. But a group led by Johnny Rodgers, who won the 1972 Heisman Trophy at Nebraska the year before Osborne was elevated to the head coaching job, and Doak Ostergard, associate head trainer for the NU football team, challenged a state law that prohibits the loser of a primary from petitioning to get on the ballot.

-- In June, a federal judge issued ordered the cities of Omaha, Lincoln and Grand Island to allow petition circulators to gather signatures on most public property. U.S. District Judge Richard Kopf ruled in a lawsuit filed by the head of a petition drive aimed at capping state spending. The petition drive, working under the name Stop Over Spending Nebraska, seeks a constitutional amendment that would tie state spending to cost of living and population changes. Mike Groene of North Platte, one of the sponsors of the effort, said the cities had implemented polices that prohibit circulators from gathering signatures in public parks, on some sidewalks and streets and outside of other public buildings and facilities.

-- In February, a challenge to term limits for Nebraska lawmakers was denied by Lancaster County District Court Judge Karen Flowers. Six voters who filed the lawsuit first asked the Nebraska Supreme Court to take the case, which it rejected without comment. The voters challenging the law were constituents of Sens. Ernie Chambers of Omaha, a 36-year lawmaker and the longest-serving senator in Nebraska history, Dennis Byars of Beatrice and Marian Price of Lincoln. They alleged that term limits violate their First Amendment free speech and association rights and 14th Amendment equal protection rights under the U.S. Constitution.

Nationally, scores of lawsuits have been filed over fights ranging from the jamming of Democratic phone lines in the November 2002 elections in New Hampshire to a new state law in Missouri requiring voters to show photo identification.

Hasen said that since 2000, both Democrats and Republicans "focused their attention on controversial election law decisions of secretaries of state chosen in partisan elections, intimating that the secretaries' decision-making was in the interest of their party, rather than the interests of the public.

"Whether those concerns are legitimate or not, they lower any resistance potential litigants may have to challenging election-related decisions of these officers," he said in his study.

Dick Herman, a retired journalist and longtime Nebraska political observer, said: "The temper of the times is such that interest groups and ... individuals are continually looking to the courts to get their resolution."

Mike Pitts, who recently left the University of Nebraska College of Law to teach law at Indiana University in Indianapolis, agreed.

"Election litigation has been around for a long time, let's make no mistake about it," Pitts said. "Courts have been involved in what's called the 'political thicket' for years, upon years, upon years. But there may be an increasing trend of people running to the courts to settle election law issues."

Is that a bad thing?

"It's hard to say whether or not it's a good or bad thing," Pitts said.

"The concern would be that the courts become too involved in politics and lose at least the appearance of judicial neutrality," he said. "It's an extremely tough line to walk."

----

On the Net:

Nebraska Court System: http://court.nol.org

U.S. District Court: http://www.ned.uscourts.gov/

U.S. Supreme Court: http://www.supremecourtus.gov/

Nebraska Secretary of State: http://www.sos.state.ne.us/