Two sides make Medicaid expansion petition arguments in court

August 21, 2018

A Lancaster County District court heard arguments Monday on motions to dismiss a lawsuit filed by a state senator and a former state senator to block Nebraska’s proposed Medicaid expansion petition from reaching the general election ballot.

Motions to dismiss the lawsuit were filed on behalf of Nebraska Secretary of State John Gale and the Insure the Good Life ballot campaign committee represented by Sarah Gershon, Kathy Campbell and Rowen Zetterman.

The Medicaid expansion petition would increase eligibility for covering about 90,000 adults ages 19 to 64 with incomes at 138 percent of federal poverty designation or below. An amended Medicaid state plan would maximize federal funding to pay for the care of the people added.

In June, Insure the Good Life submitted 133,000 petition signatures to Gale, more than the required 84,268 to place the initiative on the November 2018 ballot.

Sen. Lydia Brasch of Bancroft and former Sen. Mark Christensen of Imperial want to stop the secretary of state from certifying or printing the ballot with the Medicaid expansion language. The deadlines for that are in early September.

Christensen and Brasch argue the ballot measure directs the Department of Health and Human Services, which is part of the executive branch, to exercise power reserved for the legislative branch.

They said there are multiple subjects in the petition in violation of the single subject clause of the Nebraska Constitution. The initiative seeks to expand Medicaid coverage and direct HHS to maximize federal funding to pay for it, which they argue is not necessary to expand medical assistance.

They also argue that Nebraska Appleseed, a nonprofit corporation, should have been listed as a sworn sponsor and that failure was a violation of law.

Assistant Attorney General Ryan Post, representing Gale, said the measure includes one general subject, Medicaid expansion, with components, but does not violate the single subject rule.

On listing Nebraska Appleseed as a sworn sponsor, he said Gale would not have looked for sponsors beyond the three sponsors of Insure the Good Life, the information provided to him by the organization that was responsible for the initiative.

There’s nothing in the complaint that indicates Nebraska Appleseed met the requirements to be a sworn sponsor of the petition, said attorney Andre Barry, who represented Insure the Good Life and its sponsors.

Attorney J.L. Spray, representing Christensen and Brasch, argued there were two subjects in the petition. There was no appropriation from the Legislature for the expenditure the petition calls for, he said, and it is a delegation of authority from the Legislature to the executive branch to create a plan to pay for the expansion.

Spray said everyone agrees the right to an initiative petition is a sacred and important one in Nebraska. But there are constitutional imperatives that must be met.

“We’re not here arguing that there weren’t enough signatures or that they weren’t geographically spread,” he said.

But there are restrictions and limitations, he said. and unless the petition sponsors have satisfied all the requirements, they cannot submit the question to voters.

Meg Mandy, campaign manager for Insure the Good Life, said in an emailed statement that the petition initiative, if it is placed on the ballot and passed, would help residents in every part of the state, including rural areas where residents face longer travel times, limited availability of healthcare facilities and limited financial resources.

But Gov. Pete Ricketts has said Medicaid expansion would require a state match that would eventually accumulate to about $800 million over a 10-year period.

Update hourly