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Judge weighs decision on whether Nebraska voters will see Medicaid expansion petition on ballot

August 21, 2018

LINCOLN — A Lancaster County district judge heard arguments Monday in a case that could determine whether Nebraskans will get to vote on a Medicaid expansion proposal.

At the end of an hourlong hearing, District Judge Darla Ideus said she would decide the case as soon as possible. The deadline for state officials to certify issues and candidates for the November ballot is Sept. 14.

Two opponents of Medicaid expansion — State Sen. Lydia Brasch of Bancroft and former State Sen. Mark Christensen of Imperial — filed the case in July.

In their suit, the pair ask the court to keep the proposal off the ballot by declaring it “invalid and legally insufficient.”

They argue, among other things, that the expansion proposal contains more than one subject, is in violation of the Nebraska Constitution and does not properly disclose the Nebraska Appleseed Center for Law in the Public Interest as a petition sponsor.

The case was filed shortly after leaders of Insure the Good Life submitted more than 135,000 signatures on a petition seeking to expand Medicaid to about 90,000 more Nebraskans.

The petition drive must have 84,268 valid signatures of registered voters to put the issue before voters this fall. It also must have signatures from at least 5 percent of registered voters in each of 38 counties.

Secretary of State John Gale announced last week that the drive had more than met the county distribution requirement. The signature total is expected this week, after county election officials wrap up their signature-checking efforts.

The case argued Monday harkens back to lawsuits filed against two recent ballot proposals.

In 2014, the Nebraska Supreme Court tossed out a proposal that would have asked voters to approve betting on replayed horse races via video machines, as well as changing how the state distributes proceeds from betting on both live and replayed horse races.

The court ruled in that case that the proposal, which had been placed on the ballot by the Nebraska Legislature, violated a constitutional requirement that ballot proposals contain only one subject.

Two years ago, the state high court allowed a referendum on the state’s death penalty to appear on the ballot. The court rejected arguments by death penalty opponents that the measure was invalid because it did not list Gov. Pete Ricketts as a sponsor.

In that case, the court said financial supporters of a petition drive are not the same as sponsors. Ricketts and his family had donated $300,000 to the referendum petition aimed at undoing a legislative repeal of the death penalty.

In the current case, the Medicaid expansion opponents argue that the petition contains two subjects. One would broaden eligibility for the state-federal health care program; the other would direct state officials to seek federal approval of the expanded coverage.

But attorney Andre Barry, representing Insure the Good Life and its three leaders, said that there is an “inextricable link” between the two parts of the proposal and that they are tied together by provisions of the federal Affordable Care Act, which allows states to expand Medicaid.

On the second issue, attorney J.L. Spray, representing the expansion opponents, argued that listing Insure the Good Life as the petition sponsor was “almost a fraud.”

He pointed to documents filed with the state showing that Insure the Good Life was a registered service mark of Nebraska Appleseed.

In response, Barry argued that registering a service mark does not make Appleseed a petition sponsor. He also noted that the registration occurred in 2015, long before the petition drive began.

The proposed expansion would provide health coverage to single adults and couples without minor children who cannot qualify for Medicaid now, as well as parents and disabled people with incomes up to 138 percent of the poverty level — $16,753 for a single person or $34,638 for a family of four.

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