Nebraska Advisory Opinions September 01, 2021: AGO 21-013

Advisory Opinion Text

Nominee for Governor Select a Candidate for Lieutenant Governor of the Same Political Party (LB 635).

DOUGLAS J. PETERSON ATTORNEY GENERAL

L. Jay Bartel, Assistant Attorney General

INTRODUCTION

Nebraska law currently provides that "[t]he candidate for Governor of each political party receiving the highest number of votes in the primary election shall select a candidate for Lieutenant Governor of the same political party by filing an affidavit indicating his or her choice with the Secretary of State." Neb. Rev. Stat. § 32-619.01 (2016). Under the Nebraska Constitution, "[e]ach candidate for Governor shall select a person to be the candidate for Lieutenant Governor on the general election ballot. In the general election one vote shall be cast jointly for the candidates for Governor and Lieutenant Governor." Neb. Const, art. IV, § 1. Further, "[n]o person shall be eligible for the office of Governor, or Lieutenant Governor, who shall not have attained the age of thirty years, and who shall not have been for five years next preceding his election a resident and citizen of this state and a citizen of the United States." Neb. Const, art. IV, § 2.

You ask us to address the constitutionality of the requirement in § 32-619.01 that a candidate for Governor of a political party select a candidate for Lieutenant Governor of the same political party. You question whether this requirement unconstitutionally imposes a qualification for the office of Lieutenant Governor beyond what is required under art. IV, § 2, and impermissibly limits a Governor candidate's selection of a

Lieutenant Governor candidate under art. IV, § 1. You further raise issues regarding whether § 32-619.01 "violates candidates' rights to choose running mates of their own choosing without regard to partisan designation," or "voters' rights to vote for candidates separate from political party or right to vote for candidates of different parties." You also ask us to consider "[w]hat happens if a gubernatorial candidate chooses a running mate with no party affiliation or a different party affiliation" and, if so, "[w]ill that candidate for Governor be listed on the ballot?"

Initially, we note it is our long-standing policy not to provide opinions to members of the Legislature on the interpretation or constitutionality of existing statutes. Op. Att'y Gen. No. 157 (Dec. 24, 1985). Rather, we only issue opinions to state legislators which pertain "to pending or proposed legislation." Id. at 1. Because your request makes no reference to any pending or proposed legislation, we normally would decline to provide an opinion on the questions presented. We have, however, identified pending legislation which would provide for nonpartisan primary elections for statewide offices and U.S. Congressional offices. LB 635. Section 13 of LB 635 proposes to amend § 32-619.01 to remove the "same political party" requirement for Lieutenant Governor candidates and provide instead that the two candidates for Governor receiving the highest number of votes in the primary election shall each select a candidate for Lieutenant Governor without regard for his or her political party. Because our conclusions could impact consideration of this pending legislation, we will respond to your request.

BACKGROUND

Prior to 1970, the Nebraska Constitution provided for the separate election of the Governor and Lieutenant Governor. See Neb. Const, art. IV, § 1 (Cum. Supp. 1967) ("The Governor, [and] Lieutenant Governor. . . shall be chosen at the general election . . ."). In 1970, an amendment was adopted providing that "[i]n the general election one vote shall be cast jointly for the candidates for Governor and Lieutenant Governor nominated by the same party." 1969 Neb. Laws, ch. 417, § 1, p. 1428 (Neb. Const, art. IV, § 1 (Cum. Supp. 1972)). At the general election in 2000, the voters approved a constitutional amendment (LR 14CA) requiring "[e]ach candidate for Governor to select a person to be the candidate for Lieutenant Governor on the general election ballot." 1999 Neb. Laws LR 14CA (Neb. Const, art. IV, § 1 (Supp. 2001)). The amendment left the language stating that "[i]n the general election one vote shall be cast jointly for the candidates for Governor and Lieutenant Governor," but removed the previous language stating that the candidates be "nominated by the same party."

After LR 14CA was approved by the voters in 2000, the Legislature passed enabling legislation. 2001 Neb. Laws LB 768. The bill proposed "that the candidates for Governor of each political party receiving the highest number of votes in the primary election will select a candidate for Lieutenant Governor of the same political party within sixty days after the statewide primary election. Each of these two candidates would then run as a team on the general election ballot." Committee Records on LB 768 , 97 Leg., 1 Sess., Introducer's Statement of Intent (Feb. 14, 2001). The bill's principal introducer, Senator Schrock, noted the requirement that the Governor select a Lieutenant Governor candidate from "the same political party" could be "controversial." Id. at 2. LB 768 was, however, passed with no subsequent discussion of the party affiliation requirement. The bill, codified at Neb. Rev. Stat. § 32-619.01, has not been changed since its enactment.

ANALYSIS

You primary question is whether the "party affiliation" rule in § 32-619.01 unconstitutionally imposes a qualification for the office of Lieutenant Governor beyond what is required under art. IV, § 2, and impermissibly limits a Governor candidate's selection of a Lieutenant Governor candidate under art. IV, § 1. As explained below, we conclude the "same political party" provision in § 32-619.01 does not conflict with the constitution's requirement that a candidate for Governor select the Lieutenant Governor candidate for the general election ballot and that "one vote shall be cast jointly for the candidates for Governor and Lieutenant Governor." Neb. Const, art. IV, § 1. This interpretation is consistent with the constitutional language and the historical facts contained in the legislative record. Further, the "same political party" requirement imposes no additional qualification for the office of Lieutenant Governor and places no improper limit on the selection of a running mate by a candidate for Governor of a political party.

A. The Party Affiliation Rule Is Consistent with the Joint Vote Requirement in Neb. Const. Art. IV, § 1.

The Nebraska Supreme Court has recognized the following general rules governing the interpretation of constitutional provisions:

The intent and understanding of [the] framers [of a constitutional provision] and the people who adopted it as expressed in the instrument is the main inquiry in construing it ... . The words of a constitutional provision will be interpreted and understood in their most natural and obvious meaning unless the subject indicates or the text suggests they are used in a technical sense. The court may not supply any supposed omission, or add words to or take words from the provision as framed. It must be construed as a whole, and no part will be rejected as meaningless or surplusage, if it can be avoided. If the meaning is clear, the court will give to it the meaning that obviously would be accepted and understood by the layman .... It is permissible to consider the facts of history in determining the meaning of the language of the Constitution .... It is also appropriate and helpful to consider, in connection with the historical background, the evil and mischief attempted to be remedied, the objects sought to be accomplished, and the scope of the remedy its terms imply.

State ex rel. Spire v. Beermann, 235 Neb. 384, 389-90, 455 N.W.2d 749, 752 (1990) {quoting State ex rel. State Railway Comm'n v. Ramsey, 151 Neb. 333, 340-41, 37 N.W.2d 502, 508 (1949) (citations omitted)).

Under art. IV, § 1, the candidate for Governor must select the candidate for Lieutenant Governor for the general election and "one vote shall be cast jointly for the candidates for Governor and Lieutenant Governor." The crucial inquiry in assessing the propriety of the statutory "party affiliation" rule is whether it is consistent with the intent and meaning of the constitutional "joint vote" requirement in art. IV, § 1.

In Nebraska, "[t]he Governor and Lieutenant Governor shall be elected on the partisan ballot." Neb. Rev. Stat. § 32-506 (2016). A candidate filing for a partisan office must "be a registered voter affiliated with the appropriate party if required pursuant to section 32-702." Neb. Rev. Stat. § 32-602(2) (Cum. Supp. 2020). A person cannot file a candidate filing form as a partisan candidate to have their name placed on the primary election ballot of a political party unless they are "a registered voter of the political party if required by section 32-702" and the party satisfies certain requirements. Neb. Rev. Stat. § 32-610 (Cum. Supp. 2020).

Thus, a person must be affiliated with and be a registered voter of a political party to have their name placed on the primary election ballot as the party's candidate for a partisan office. The offices of Governor and Lieutenant Governor are elected on a partisan ballot. Under § 32-619.01, the winning candidate of a political party in the primary election for Governor must select a candidate for Lieutenant Governor "of the same political party" to run in the general election. Art. IV, § 1, provides that the candidate for Governor must select a Lieutenant Governor candidate and that one vote must be cast jointly for the candidates for Governor and Lieutenant Governor in the general election. The requirement in § 32-619.01 that a political party candidate for Governor receiving the most votes in the primary election must select a Lieutenant Governor candidate of the same political party for the general election contest for these partisan offices is consistent with the intent and meaning of the "joint vote" requirement in art. IV, § 1.

"The Nebraska Constitution is not a grant, but, rather, a restriction on legislative power, and the Legislature is free to act on any subject not inhibited by the Constitution." Jaksha v. Thomas, 243 Neb. 794, 798, 502 N.W.2d 826, 829 (1993). "[C]ourts can enforce only those limitations which the Constitution imposes." Lenstrom v. Thone, 209 Neb. 783, 789, 311 N.W.2d 884, 888 (1981). Art. IV, § 1, places no restriction on the Legislature's power to establish a party affiliation rule for nominees for Governor of a political party in selecting a candidate to run with them jointly on the general election ballot. Absent such a restriction in the Constitution, the Legislature was free to enact such a requirement in § 32-619.01.

Construing the "joint vote" requirement in art. IV, § 1, to permit § 32-619.01 's "same political party" requirement is also consistent with the historical development of the language in Art. IV, § 1. That section previously required that "the candidates for Governor and Lieutenant Governor [be] nominated by the same party." 1969 Neb. Laws, ch. 417, § 1, p. 1428 (Neb. Const, art. IV, § 1 (Cum. Supp. 1972)). But the people removed that language in 2000, and in so doing, they demonstrated their intent to leave that issue to the Legislature. Notably, the people did not resolve that question in a different way - by, for example, directing that "the candidates for Governor and Lieutenant Governor need not be nominated by the same party." Rather, they decided that the Constitution would be silent. Because the Constitution does not take a position on whether a candidate for Lieutenant Governor must be of the same party as the candidate for Governor, it is open for the Legislature to decide.

The historical facts surrounding the Legislature's consideration of LR 14CA further confirm this conclusion. As originally introduced, LR 14CA required each candidate for Governor to select a Lieutenant Governor candidate "of the same political party status." 1999 Neb. Leg. Journal, 96 Leg., 1 Sess. at 157 (Jan. 12, 1999). Senator Chambers offered a floor amendment (FA23) to strike this language. Id. at 596 (Feb. 17, 1999). Opening discussion on the amendment, Senator Chambers stated "[w]e should just make a general statement in the constitution to make it clear that the person who is to be Lieutenant Governor will be selected by the person running for Governor." Floor Debate on LR 14CA , 96 Leg., 1 Sess. at 1149 (Feb. 7, 1999). He noted "there is no need for us to put this type of language in the constitution which would better be argued when we're considering a statute." Id. at 1150. Senator Schimek, citing the existing constitutional language providing that votes were to be cast jointly for the Governor and Lieutenant Governor "nominated by the same party," raised a concern that adoption of FA23 "would change the meaning that is ... in the constitution now." Id. In response, Senator Chambers stated that the language referred to by Senator Schimek was "to prevent, in the general election, the public having the option of voting for a Governor of one party and a Lieutenant Governor of another party . . ." by "put[ting] the Democrat for Governor and the Democrat for Lieutenant Governor on one spot on the ballot, and a vote cast was a vote for both of them. The same with the [Republican] side—a vote for one was a vote for both." Id. at 1154. He continued by stating he "was not changing anything by [his] amendment," explaining: "When the names appear on the ballot, there will still have to be one vote cast for the candidate for Governor and Lieutenant Governor of the same party on one ballot, the candidates for Governor and Lieutenant Governor for the other party on the other ballot." Id. Advocating that "we should put as little restrictive language in the constitution as possible," Senator Chambers stated:

It will still be clear, with the adoption of this amendment that I'm offering, that in the general election, which is the only time that a person will have to vote for a Lieutenant Governor, they must be of the same political party. One vote will be cast jointly for the Governor and Lieutenant Governor candidate of the same party. Id. at 1155.

After FA23 was adopted, Senator Schimek again expressed "concern[ ] about the Chambers amendment." Id. at 1780 (March 4, 1999). Senator Schrock, noting that the "original constitutional amendment" required the Governor candidate to "choose a Lieutenant Governor of the same party," stated: "[S]hould LR 14CA be passed this session then we will need enabling legislation in the statutes next year, and then the issue could be decided by this legislative body as to whether we should require that the Governor candidate choose a Lieutenant Governor candidate from their same party or not." Id. at 1781. Toward the end of debate, Senator Schrock urged advancement of the amendment, stating "that [the] issue of whether the Lieutenant Governor should be from the same political party can be addressed statutorily." Id. at 1798.

This history reflects a legislative understanding that the "joint vote" requirement authorized the Legislature to implement the amendment by enacting a statute imposing a party affiliation requirement. These historical facts further support concluding that the party affiliation rule in § 32-619.01 is consistent with art. IV, § 1.

B. The Party Affiliation Rule Does Not Impose an Additional Qualification for the Office of Lieutenant Governor.

The constitutional qualifications to be eligible for the offices of Governor and Lieutenant Governor are "having attained the age of thirty years" and being a resident and citizen of this state and the United States "for five years next preceding" election to office. Neb. Const, art. IV, § 2. You contend the party affiliation rule in § 32-619.01 "conflicts with the constitutional qualifications for eligibility for candidates for Governor and Lieutenant Governor because it requires consistency of party membership as eligibility for being candidates for these offices."

"[W]here the Constitution creates an office and enumerates the qualifications for eligibility to the office the legislature is without power to impose other conditions for eligibility." State ex rel. Quinn v. Marsh, 141 Neb. 436, 439, 3 N.W.2d 892, 894 (1942). See also State ex rel. Brazda v. Marsh, 141 Neb. 817, 830, 5 N.W.2d 206, 214 (1942) ("[W]hen a state Constitution creates an office and names the qualifications of the incumbent, the legislature has no authority to prescribe additional qualifications or to remove any of the requirements provided for by the Constitution.").

While this rule is well-established, the issue here is whether the party affiliation rule in § 32-619.01 imposes an additional qualification for the offices of Governor or Lieutenant Governor. As explained below, the party affiliation rule is not an additional qualification for the offices of Governor or Lieutenant Governor and thus does not violate art. IV, § 2.

In Roberts v. Cleveland, 48 N.M. 226, 149 P.2d 120 (N.M. 1944) ["Roberts"], the Supreme Court of New Mexico considered a challenge to the constitutionality of a statute requiring that a person be registered with a political party for a certain length of time to be eligible as that party's nominee for office. The relator asserted that the statute imposed an additional qualification for eligibility to the office of Representative in Congress in violation of the United States Constitution. Id. at___, 149 P.2d at 121. While it was

conceded "that the state legislature cannot add to or subtract from the qualifications to hold the office of Congressman," the court noted a "difference between the qualifications of a person to hold the office" and "the qualifications to enter the contest in the Primary Election for the nomination of [a party] as its candidate for said office." Id. "Every voter has a right to be a candidate for a public office if he possesses the qualifications required to fill the office. It does not necessarily follow that he can be the candidate of a particular political party." Id. "The statute provides when and how one may be a candidate of a

political party. If he cannot fill the requirement so as to be the candidate of the political party of his choice, he may still be a candidate at the general election by petition." Id. Concluding that the statute did not impose an improper additional qualification for office, the court stated:

[N]o political party under our system can be compelled to put forward as its candidate one who does not affiliate with it. The voter at the general election may vote for whom he pleases but may not be deceived by false labels. It surely is within the power of the legislature to prevent such deception, and we think it clearly appears that it was intended to do so and, likewise, that it was not intended to enlarge upon or subtract from the constitutional qualifications of our citizens to hold public office. We are determining the qualifications for nomination as the candidate of a political party, and not the right to be a candidate for election to the office. Id. at 122.

Roberts instructs that there is a distinction between qualifications necessary to be a candidate for an office and eligibility to be nominated as the candidate of a political party running for an office. Because § 32-619.01 applies to candidates of a "political party" for Governor and requires such candidates to select a Lieutenant Governor candidate of the "same political party," it imposes no qualification for either office. The Legislature has authority to require that candidates of a political party seeking election to an office be affiliated with that party. This requirement does not impose an additional qualification for office. It merely recognizes "the power of the legislature to protect the various political parties in their right to present candidates at the general election who affiliate with the party that presents them." Roberts, 48 N.M. at___, 149 P.2d at 121. seeking to be placed on the general election ballot by petition. Neb. Rev. Stat. § 32-619 (2016). Under the petition process, a person not seeking to be the candidate of a political party for the office of Governor may be a candidate for Governor and select a Lieutenant Governor candidate without any political party affiliation requirement. This further illustrates the party affiliation rule is not an additional qualification for these offices.

There is some authority supporting the view that requiring a Lieutenant Governor candidate to be of the same political party as a candidate for Governor unconstitutionally adds to the constitutional qualifications for the office of Lieutenant Governor. Opinion of the Justices, 290 A.2d 645 (Del. 1972); Wash. Op. Att'y Gen. 1975 No. 4 (March 18, 1975), 1975 WL 165893. Unlike Nebraska, however, Delaware and Washington require the separate election of the Governor and Lieutenant Governor in the general election. While imposing a political party requirement when these offices are constitutionally required to be elected separately may well impose an additional qualification on a Lieutenant Governor candidate, Nebraska does not follow the separate vote model. Nebraska has chosen a "team ticket" model where the candidate for Governor selects the Lieutenant Governor candidate for the general election, and one vote is cast jointly for both candidates. See generally Yeargain, T. Quinn, One Vote, Two Winners: Team-

C. The Party Affiliation Rule Does Not Violate the Rights of Candidates or Voters.

You further raise issues regarding whether § 32-619.01 "violates candidates' rights to choose running mates of their own choosing without regard to partisan designation," or "voters' rights to vote for candidates separate from political party or right to vote for candidates of different parties." It does not.

As explained above, the Legislature may require that candidates of a political party seeking election to an office be affiliated with that party. A candidate for Governor that does not wish to run as a candidate of a political party retains the option to be a candidate by petition and is free to select any person as a Lieutenant Governor candidate without regard to party affiliation. Neb. Rev. Stat. § 32-619 (2016). Section 32-619.01 only requires that a political party's candidate for Governor select a Lieutenant Governor candidate of the same political party. There is no improper restriction on a candidate's right to select a running mate.

Nor does § 32-619 improperly restrict the rights of voters. Again, art. IV, § 1, provides for a joint vote in the general election for the candidate for Governor that wins the primary election and the person that candidate selects for Lieutenant Governor. The Constitution does not permit a separate vote for Governor and Lieutenant Governor. Voters are not denied the right to vote for any candidates running jointly for Governor or Lieutenant Governor, whether they be on the ballot on a party basis or by petition.

D. Effect of a Political Party Nominee for Governor Selecting a Lieutenant Governor Candidate Who Is Not of the Same Political Party.

Finally, you ask us to address "[w]hat happens if a gubernatorial candidate chooses a running mate with no party affiliation or a different party affiliation" and, if so, "[w]ill that candidate for Governor be listed on the ballot?" As a member of the Legislature, you are entitled to ask our opinion about the constitutionality of pending or proposed legislation. While we have found it appropriate to address the constitutional issues you raise based on certain provisions in pending LB 635, your final questions regarding the effect of a political party nominee for Governor selecting a Lieutenant Governor candidate who is not of the same political party, and the placement of those candidates on the ballot, do not involve any pending legislation. Accordingly, we must decline to respond to these questions.

Ticket Gubernatorial Elections and the Need for Further Reform, 75 U. Miami L.Rev. 751 (2021). Thus, the Delaware and Washington authority is not persuasive or relevant to interpreting our Constitution.

CONCLUSION

"A statute is presumed to be constitutional, and all reasonable doubts are resolved in favor of its constitutionality. Yant v. City of Grand Island, 279 Neb. 935, 939, 784 N.W.2d 101, 105 (2010). "The unconstitutionality of a statute must be clearly established before it will be declared void." Id. We conclude the "same political party" provision in § 32-619.01 is not in conflict with the Constitution's requirements that a candidate for Governor select the Lieutenant Governor candidate for the general election ballot and that "one vote shall be cast jointly for the candidates for Governor and Lieutenant Governor." Neb. Const, art. IV, § 1. This interpretation is consistent with the constitutional language and the historical facts in the legislative record. Further, the "same political party" requirement imposes no additional qualification for the office of Lieutenant Governor and places no improper limit on the selection of a running mate by the Governor candidate of a political party.

Very truly yours,

DOUGLAS J. PETERSON Attorney General

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Notes:

There is, of course, no "party affiliation" requirement for candidates for Governor

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