The Eighth Circuit has reversed a preliminary injunction barring the enforcement of a Nebraska constitutional provision regarding the geographical distribution of registered voters who sign 
ballot-initiative petitions. After concluding that the provision did not restrict a “fundamental” right for purposes of equal-protection analysis, the panel majority applied rational-basis scrutiny and held that the plaintiffs had failed to carry their burden to show a that they were likely to prevail on the merits. Judge Jane Kelly dissented and would have upheld the injunction.
The case, Eggers v. Evnen, No. 22-2268, — F.4th —, 2022 WL 3905817 (8th Cir. Aug. 31, 2022), involves the power of Nebraska voters to enact statutes and constitutional amendments independently of the legislature by placing initiatives on the ballot. An initiative is placed on the general-election ballot after proponents of the initiative gather enough signatures from registered voters. Neb. Const. art. III, §2. The state’s constitution imposes two conditions relevant to this suit. First, at least seven percent (for a proposed statute) or ten percent (for a proposed constitutional amendment) of registered voters in the state must sign the ballot petition. Second, the signatories must “be so distributed as to include five percent of the registered voters of each of two-fifths of the counties of the state.” In summary: “[I]n addition to gathering the signatures of approximately 87,000 registered voters, proponents of an initiative must gather signatures from at least five percent of the registered voters in at least 38 of the 93 counties in Nebraska.” Eggers v. Evnen, No. 4:22-CV-3089, — F. Supp. 3d —, —, 2022 WL 2118382, at *1 (D. Neb. June 13, 2022).
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