State Supreme Court affirms anti-trans ballot measure's allegedly "misleading" language

Nebraska’s Supreme Court unanimously ruled on October 16 that the state’s anti-transgender sports measure can remain on its November midterm ballot.

Cara Ullman, a registered Democrat, filed the lawsuit with the state Supreme Court on Monday, August 31. She alleged that the measure’s explanation, which was on a petition that Nebraskans signed to get it on the ballot violates a state law requiring “plain language” so voters can easily understand what they’re voting for. If she and others had better understood the measure, they might not have signed the petition to begin with, she said.

Measure 442 would ban trans student-athletes from participating on sports teams that don’t match the sex they were assigned at birth. The measure would apply to all athletic teams or sports sponsored by public or private schools, colleges, universities, or educational institutions.

However, the measure’s ballot language says, “The object of this petition is to amend the Nebraska Constitution to establish constitutional protections for sex-separate athletics to ensure equal access to athletic opportunities for females.”

Ullman’s lawsuit said the language failed to properly describe the “legal effect of the filing of the petition and the object sought to be secured by submitting the measure to the voters.” The language “omits major provisions contained in the Initiative’s text and does not accurately reflect the text of the Initiative,” she claimed.

More specifically, her lawsuit noted that the ballot language fails to inform voters that the amendment applies to all public and private schools from childhood to adulthood, and:

imposes requirements based on biological sex;

prohibits male students from participating in sports and teams designated for female students;

applies to recreational intramural sports, as well as interscholastic and intercollegiate sports; and

does not actually guarantee equal access to athletic opportunities.

A district court previously ruled against Ullman, finding that the measure’s language didn’t violate state law.

In the state Supreme Court’s recent ruling, the justices wrote that the state ballot language law “does not require an initiative’s object statement to set forth every consequence that would result from the initiative measure should it be adopted by voters.”

The court ruled that the measure’s language establishes the “legal effect” (constitutional protections) and the “object” (sex-separate athletics to ensure equal access to athletic opportunities for females),

The court noted that state law doesn’t require that the measure’s language include “the means to pursue” the object. Requiring this would add a new “substantive requirement” to current state law on ballot-measure language, the justices added. Current state law “does not require an object statement to summarize all major provisions of an initiative,” the court wrote.

Regarding the petition Ullman and other Nebraskans signed to get the measure on the ballot, the court wrote, “A potential signer interested in learning exactly how the Initiative sought to achieve this purpose need only flip over the [petition’s] page to read the proposed Initiative’s full text.” As such, the court found that the petition for the measure wasn’t misleading and, thus, that the measure should remain on the ballot.

All seven judges on the state Supreme Court were appointed by a Republican governor, even though they must run for re-election after their first term.

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Originally published here.