## Facts

- Greg Lemon, a registered Nebraska voter and ballot-committee president, submitted initiative petitions seeking placement on the November 7, 2006 general election ballot.
- One measure proposed a constitutional amendment authorizing and regulating one casino in each of Nebraska’s three congressional districts (“3 Casinos Initiative”).
- A second measure proposed a statute directing that most tax proceeds from constitutionally authorized casino gambling be used to support K–12 education (“K–12 Initiative”).
- The Nebraska Constitution’s resubmission clause provides that “the same matter, either in form or in substance, shall not be submitted to the people by petition, oftener than once in three years.”
- The Secretary of State refused to process the two measures, concluding they were too similar to gambling-related initiatives submitted to voters in 2004 and therefore could not be resubmitted in 2006.
- Lemon filed an action seeking mandamus under Nebraska election law to compel ballot placement (or continued processing) of both measures.
- The district court held the K–12 Initiative was barred but the 3 Casinos Initiative was not, and ordered the Secretary to proceed with processing the 3 Casinos Initiative.
- The Secretary appealed and Lemon cross-appealed; the Nebraska Supreme Court expedited review.

## Issues

1. Whether the dispute was justiciable where signature verification had not been completed, but the Secretary refused to proceed on constitutional grounds.
2. Whether the 2006 initiatives concerned “the same matter, either in form or in substance” as initiatives submitted in 2004, triggering the three-year resubmission bar.
3. Whether “same matter” requires near identity in wording, or instead turns on similarity in substance and legal effect.
4. Whether applying the resubmission clause to block the initiatives violated First Amendment rights of speech and political association by granting excessive administrative discretion over ballot access.

## Decision

- The Nebraska Supreme Court held the case presented a justiciable controversy because the Secretary had made a definitive legal determination not to process the petitions.
- The court interpreted the resubmission clause to require a comparison of substance, not merely wording, and rejected a “nearly identical” standard.
- The court concluded both the 3 Casinos Initiative and the K–12 Initiative addressed the same essential subject matter as 2004 measures involving casino gambling authorization and gambling-tax treatment.
- The court rejected the First Amendment challenge, reasoning that the limitation derived from the state constitution and the Secretary’s role was bounded and judicially reviewable.
- The court reversed the district court to the extent it ordered processing of the 3 Casinos Initiative and ordered that neither initiative be placed on the 2006 ballot.

## Legal Principles

- A controversy is justiciable for mandamus purposes where an election official refuses to proceed based on a definitive legal position, even if intermediate administrative steps (such as signature verification) remain incomplete.
- Under Nebraska’s resubmission clause, “the same matter, either in form or in substance,” bars resubmission within three years when the later measure is substantially the same in subject matter and practical legal effect as a prior submission.
- The resubmission analysis is not confined to near-verbatim repetition; it focuses on substance.
- Enforcing a constitutionally adopted resubmission limitation does not violate the First Amendment merely because it restricts how frequently the same subject may be placed before voters; the election official’s enforcement is constrained by constitutional text and subject to judicial review.

## Conclusion

The Nebraska Supreme Court held that Nebraska’s three-year resubmission clause barred both a casino-authorization constitutional amendment and a related education-funding revenue measure from appearing on the 2006 ballot because they concerned the same matter in substance as initiatives submitted in 2004, and the court rejected arguments that this enforcement violated the First Amendment.


State ex rel. Lemon v. Gale, 721 N.W.2d 347 (Neb. 2006)