Abstract
I. Introduction
II. Background ... A. Current Climate: Increased Voter-Led Ballot Measures ... 1. Recent Trend Toward Policy Creation Through Voter-Led Ballot Measures ... 2. Reasons for the Trend: Americans’ Heightened Distrust of Government and the Political Process ... 3. Voter-Led Ballot Measures Are Often Challenged in State Courts, Making Courts an Important Player in the Ballot Measure Process ... B. Judicial Review of Ballot Measures: Three Perspectives ... 1. Perspective One: Ballot Measure Policies Reflect the Will of the People, and Courts Should Therefore Be Highly Deferential to Voters’ Choice ... 2. Perspective Two: The Non-Legislative Origin of Ballot Measure Policies Mandates a Heightened Level of Judicial Scrutiny … 3. Perspective Three: Courts Should Examine Ballot Measures with the Same Level of Scrutiny Used for Comparable Policies Passed Through the Legislature ... C. Nebraska’s Repeal & Reinstatement of the Death Penalty: A Case Study ... 1. Background ... 2. Hargesheimer v. Gale: The Pre-Election Challenge ... 3. The Election and Aftermath: Ballot Confusion, Subsequent Legal Challenges, and an Execution
III. Analysis ... A. Lessons from Nebraska: Adopting a Rule of Pre-Election Deference and Post-Election Legislative Mirroring
IV. Conclusion
Recommended Citation
Kait Madsen,
Execution on the Ballot: Lessons for Judicial Review of Ballot Measures from the Death Penalty Referendum in Nebraska,
99 Neb. L. Rev. 254
(2020)
Available at: https://digitalcommons.unl.edu/nlr/vol99/iss1/8