Letter sent to NE lawmakers urging support for the ballot vote

September 8, 2022

Members of the Nebraska Legislature:

On behalf of Nonpartisan Nebraska I write to express concern following the August 25th

announcement that former gubernatorial candidate Charles Herbster has formed a

political action committee dedicated to abolishing the use of ballots to elect the Speaker

and committee chairs in the Nebraska Legislature.

Over the past decade the practice of using ballots has become increasingly

controversial amongst lawmakers. However the use of ballots is not new. In fact

lawmakers first used ballots for the election of Speaker, Clerk, and the Chair of the

Committee-on-Committee on the first day of the new unicameral session in 1937. According to the legislative record, every leadership election from the floor of the

Legislature has occurred by ballot since 1937, and in an article written by John P.

Senning from September 1937 it is noted that the ballot votes were intentionally

implemented alongside the unicameral reform.

.

The use of ballots to elect leaders is widespread across every level of government in

Nebraska, the United States, private organizations using parliamentary authorities like

Robert’s Rules of Order, and is used by democracies around the world. Nebraska law

specifically permits public bodies (like school boards, city councils, and county

commissions) to use ballot votes to elect their leaders, and members of Congress and

members from other legislative bodies in the United States often use ballot votes for leadership elections within party caucuses–reserving the recorded vote to demonstrate

support for the party’s selection.

A few members, as well as Mr. Herbster, have cited Article III §11 of the Nebraska

Constitution claiming that this provision causes ballot votes to be unconstitutional. The

provision in question states:

The Legislature shall keep a journal of its proceedings and publish them, except

such parts as may require secrecy, and the yeas and nays of the members on

any question shall at the desire of any one of them be entered on the journal.

[emphasis added]

This provision provides lawmakers with the flexibility to determine that certain questions,

like elections, require secrecy. It also states that the “yeas and nays [...] shall [...] be

entered on the journal.” Elections do not have yeas or nays. And it should be noted that

in the article prior, Article III §10, the Legislature is granted the right to “determine the

rules of its proceedings” as well as the right to “choose its own officers.” This provision

sets leadership elections apart from questions of policy or law, further supporting the

view that the ballot vote is constitutionally permitted.

It seems unlikely that the sponsors of this constitutional language intended for it to apply

to internal elections as they supported using ballots in the Unicameral. Former U.S.

Senator George W. Norris addressed lawmakers on January 5, 1937–mere minutes

before the first ballot votes were cast. Surely if the original intent of this amendment was

to apply to ballot votes some objection would have been raised. None are present in the

record.

Proponents of abolishing the ballot often cite transparency and openness as their goals.

Nonpartisan Nebraska applauds lawmakers' dedication to transparency in committee

and floor proceedings. But in this instance, a recorded vote for legislative leaders would

cripple nonpartisanship and severely damage senators’ independence. Its negative

effects would far outweigh the increased openness.

It seems most likely that doing away with the ballot would result in deal-making and

trade-offs behind the scenes. How lawmakers vote, and whether they support their

party, would be used against them in determining which committee assignment they are

given and whether they are supported by their partisan peers. This would be trading the

ballot vote for the image, not the reality, of transparency.

While it is inevitable that some members will campaign behind the scenes for

themselves or others to be elected to a particular post, the actual written vote is up to

the individual member. Were the voting to be done by roll call, it seems certain the two

major political parties would be watching in order to reward or punish members

depending on how their votes align with their parties’ wishes. Over time, party influence

would be obvious in that the party with a majority of members in the Legislature would

automatically elect members of their own party to all the leadership positions. The result

would be a de facto partisan body, a far cry from Senator George W. Norris’ “Model

Legislature.”

On behalf of supporters of nonpartisanship across Nebraska I encourage lawmakers to

oppose any attempt to change this long-held rule and preserve the nonpartisan

structure of our Nebraska Unicameral.

Respectfully,

Nathan Leach

Founder/Executive Director