Law, College of



Because Nebraska’s constitutional provision for direct democracy involves voting and the exercise of the People’s legislative authority, it is subject to the principles of Reynolds v. Sims and the Fourteenth Amendment to the U.S. Constitution. This understanding of the People’s power of initiative and referendum as legislative is supported by Nebraska history, as is the severability of the two-fifths, county-distribution requirement from Article III, § 2 of the Nebraska Constitution. The county-distribution requirement fails the one-person-one-vote constraint placed upon States by the federal constitution. As a matter of statistical analysis, that requirement gives more power to voters in counties with fewer registered voters to influence initiatives than to voters in counties with more registered voters, measured by a well-known index of voting power. Analysis of alternatives to the “two-fifths of counties” rule using units of rough population equality shows States could achieve any asserted interested interest in geographic assent without burdening the voting power of those in higher population counties. Also of concern is the disparate and dramatic impact the county-distribution requirement places upon the voting power of people of color.