LINCOLN, Neb. (AP) — A Nebraska lawmaker behind a new law that would divert millions in state income tax to scholarships for private school tuition is now seeking to have an effort to repeal the law yanked from the November ballot.
Currently, state voters are set to decide next year whether public money can go to private school tuition after a petition effort to get the question on the November 2024 ballot far exceeded the number of valid signatures needed.
The Opportunity Scholarships Act does not appropriate taxpayer dollars directly to private school vouchers. Instead, it allows businesses and individuals to donate up to $100,000 per year of their owed state income tax to organizations that award private school tuition scholarships. Estates and trusts can donate up to $1 million a year. That dollar-for-dollar tax credit is money that would otherwise go into the state’s general revenue fund.
This week, the law’s main sponsor, Omaha Sen. Lou Ann Linehan, sent a letter to Nebraska Secretary of State Bob Evnen asking him to declare the ballot initiative unconstitutional and pull it from November’s ballot. The state constitution, she said, places the power of taxation solely in the hands of the Legislature.
Linehan based much of her argument on a 13-page legal opinion written by a private practice attorney, which cites a little-noted segment of the state constitution that states, “The legislature has exclusive and discretionary power to prescribe the means by which taxes shall be collected.”
“We have to follow the constitution,” Linehan said. “And the constitution is clear. The people of Nebraska have vested revenue power in the Legislature. I respect the petition process, but the constitution cannot be ignored.”
During debate over the scholarship bill, Linehan went to lengths to paint the bill as anything but an appropriation of tax dollars, saying at one point that “it’s not an appropriation if we never collect the money.”
But by Wednesday, she had reversed course. “It’s a revenue bill, so it is a tax law,” she said.
Linehan’s effort is in line with a growing trend among Republican-dominated state legislatures to find ways to force through legislation they want, even if it’s unpopular with the public or opposed by another branch of government. A number of those efforts center on citizen-led petitions for law changes.
In Ohio, the GOP-led legislature called a special election last August aimed at raising the threshold for passing constitutional amendments from a simple majority to 60%. The attempt, which failed, was aimed at a November ballot question in which voters resoundingly enshrined the right to abortion in that state’s constitution.
In Wisconsin, Republicans are increasingly turning to the ballot box to seek constitutional amendments to get around the Democratic governor’s veto.
Conversely, state lawmakers have also shown a willingness to defy the will of the people when such referendums don’t go their way.
Missouri’s Republican-led Legislature has frequently clashed with the sponsors of citizen-initiated ballot measures. When voters approved Medicaid expansion in 2020, the Legislature attempted to thwart it by not funding it — until a court said it must go forward.
This year, it is expected to consider proposed constitutional amendments that would make it harder to approve voter initiatives — both a reaction to past initiatives and to raise the bar for a potential abortion rights initiative that supporters hope to get on the November ballot.
Opponents of the Nebraska private school scholarship scheme called Linehan’s move to block a vote of the people on it hypocritical.
“They failed miserably in their attempt to derail the petition drive,” said Jenni Benson, president of the Nebraska State Education Association. “They will attempt everything they can to try to deny Nebraska voters the right to vote on this issue.”
Rebecca Firestone, executive director of the state government watchdog group Open Sky Policy Institute, said elected officials ask voters every year to weigh in on revenue issues through bond elections and votes on whether local school districts can override revenue caps.
“Preventing voters from weighing in on state revenue policy undermines democracy, stifles public participation and removes a check on elected officials that is a hallmark of Nebraska’s unicameral system,” Firestone said.
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