Who Commissions the Commissioners? The Constitutionality of Nebraska’s Appointed Election Officers
January 29, 2020
By: George Townsend
On September 24, 2019, Nebraska Attorney General Doug Peterson issued an opinion in which he described the appointment of county election commissioners by the governor of the state or the board of the county as “constitutionally suspect” and suggested that, if challenged, the state’s current process for selecting commissioners could be overturned by the Nebraska Supreme Court.
In most of Nebraska’s 93 counties, the duties of election commissioner are assigned to the county clerk, an elected officer of the county. However, in counties with a population between 20,000 and 100,000, the county board “may” create a separate office of election commissioner and appoint an officer to that position. A third category of counties, those a population greater than 100,000, have their election commissioners appointed by the governor. There are currently only three counties that meet the threshold for a governor’s appointment: Douglas, Lancaster, and Sarpy Counties, which include the cities of Omaha and Lincoln and Omaha’s metropolitan area. In each jurisdiction, election commissioners are responsible for promulgating rules and regulations regarding the administration of elections and the registration of voters within that county.
The potential for constitutional challenge arises from Article IX, Section 4 of the Nebraska Constitution, which states: “The Legislature shall provide by law for the election of such county and township officers as may be necessary and for the consolidation of the county offices of two or more counties . . . .” Peterson’s opinion explains that judicial application of this section permits the legislature wide discretion in the creation of county and township offices, but does not allow the state senate to institute any method of selecting officers for those positions other than popular election. According to Peterson, the role of the election commissioner includes sufficient indicia of a “county officer” to require selection by election, including the exercise of “sovereign power” over “duties of public concern,” as well as their set term of tenure, oath of office, and authority to hire employees.
While the attorney general’s decision calls into question the appointment of an unelected county election commissioners by anyone, including by county board in a county of 20,000 to 100,000 residents, the fact that the governor of the state has appointment power over Douglas, Lancaster, and Sarpy counties is a particularly salient issue. These three counties, distinguished by their large populations, account for a combined 969,611 residents (based on the Census Bureau’s estimate for July 2018), just over half the population of the entire state.
More importantly, these large urban and suburban counties tend to vote differently than the more rural counties that constitute the rest of the state. In the last three gubernatorial elections (2018, 2014, and 2010), Republican candidates won by an average margin of 27.9% of the electorate, despite the Democratic candidate narrowly winning both Douglas County and Lancaster County by in 2018 and Lancaster County in 2014. While the combination of population disparity and partisan divide between those three counties and the rest of the state is not so distinct as to make the extension of gubernatorial authority over the electoral process a clear partisan encroachment, it is concerning that the only counties over which the governor exercises commissioner appointment power are the three counties that constitute the majority of the state’s population, two of which happen to be influential swing counties in gubernatorial and other statewide elections.
Moreover, county-level policy decisions can have a profound effect on election outcomes. In the 2018 statewide primary election, the state of Nebraska had an average participation rate of 24%, but rural western Garden County held its election entirely through mailed ballots and achieved a phenomenal participation rate of 58%. Garden County, which falls into the category of low-population counties with electoral commissions administered by the county clerk, did not implement the mail-only election unilaterally; the county sought and obtained permission from the secretary of state to change its election format. Nevertheless, such drastic county-level change would not have been possible without implementation by local election officials.
John Cartier of voting rights organization Civic Nebraska has advocated for Douglas, Lancaster, and Sarpy Counties to adopt an all-mail election format to increase voter participation. While it is not a given that the introduction of elected county commissioners would necessarily lead to a transition to an all-mail system, such a transition could only be made with the support of local officials interested in increasing the voting power of their jurisdictions. It is concerning that a measure calculated to increase voter participation in, and therefore the political power of, three large and competitive counties depends on the policy decisions of commissioners appointed by a statewide officer who, at least in recent history, has been electorally dependent on a base of smaller and less competitive rural counties.
While all-mail voting is only one of many possible policy decisions that could increase voter turnout in Nebraska counties, any change would require the active participation by county-level officials to succeed. The more accountable that official is to the voters of their county, rather than to an incumbent elected by the state at large, the more likely they will be to adopt a plan that maximizes the participation rate of their own constituency.