The ALCU of Nebraska, the ACLU Capital Punishment Project, and the law firm O’Melveny & Myers, LLP, have filed a law­suit on behalf of the state’s eleven death-sen­tenced pris­on­ers seek­ing to bar Nebraska ​“from car­ry­ing out any exe­cu­tions or tak­ing steps toward car­ry­ing out any exe­cu­tions” under the November 2016 vot­er ref­er­en­dum that restored that state’s death-penal­ty law. The law­suit, filed in Lancaster County District Court on December 4, argues that the vot­er ref­er­en­dum amount­ed to an ​“unlaw­ful exer­cise of leg­isla­tive pow­er by the exec­u­tive branch,” in vio­la­tion of the sep­a­ra­tion of pow­ers claus­es of the Nebraska con­sti­tu­tion, because Governor Pete Ricketts (pic­tured), his staff, and oth­er mem­bers of the Nebraska exec­u­tive branch ​“improp­er­ly seized and exer­cised leg­isla­tive pow­er” when they alleged­ly ​“pro­posed, ini­ti­at­ed, fund­ed, orga­nized, oper­at­ed, and con­trolled the ref­er­en­dum cam­paign against” the death-penal­ty repeal law. It also alleges that the May 2015 leg­isla­tive repeal of the death penal­ty went into effect on August 30, 2015, and con­vert­ed the pris­on­ers’ death sen­tences to life sen­tences before the peti­tion dri­ve sus­pend­ed the repeal statute. While pro­po­nents of the ref­er­en­dum sub­mit­ted their peti­tions to place the ref­er­en­dum on the bal­lot on August 25, the sig­na­tures were not val­i­dat­ed by the Secretary of State and, accord­ing to the law­suit, did not sus­pend the statute until October 2015. The Governor’s office char­ac­ter­ized the law­suit as ​“friv­o­lous lit­i­ga­tion” by a ​“lib­er­al advo­ca­cy group … work[ing] to over­turn the clear voice of the Nebraska peo­ple.” The Nebraska leg­is­la­ture vot­ed three sep­a­rate times in 2015 in favor of abol­ish­ing the death penal­ty, with a major­i­ty of the leg­is­la­ture’s 30 Republicans joined by 12 Democrats and an Independent sup­port­ing repeal. After two pre­lim­i­nary votes in April and ear­ly May, the uni­cam­er­al leg­is­la­ture on May 20 vot­ed 32 – 15 to repeal its death penal­ty and replace it with a sen­tence of life with­out pos­si­bil­i­ty of parole. Governor Ricketts vetoed the bill, but a super­ma­jor­i­ty of the leg­is­la­ture, led by con­ser­v­a­tive Republicans, vot­ed 30 – 19 on May 28 to over­ride the veto. Four days lat­er, a com­mit­tee called Nebraskans for the Death Penalty filed spon­sor­ship doc­u­ments with the Nebraska Secretary of State seek­ing a ref­er­en­dum to sus­pend and over­turn the repeal. The com­plaint alleges that the Governor was the actu­al spon­sor of the ref­er­en­dum cam­paign and that, in vio­la­tion of Nebraska law, none of the osten­si­ble ​“spon­sors” of the ref­er­en­dum sub­mit­ted state­ments ​“sw[earing] to the truth and accu­ra­cy of their spon­sor­ship.” It says that Ricketts and his par­ents pro­vid­ed 80% of the fund­ing for the peti­tion dri­ve in its first month and 30% of the total fund­ing for the cam­paign to over­turn the repeal, used state facil­i­ties to raise funds for the ref­er­en­dum cam­paign, and mailed a fundrais­ing let­ter with the let­ter­head ​“Governor Pete Ricketts, State of Nebraska,” and that mem­bers of Rickett’s exec­u­tive branch served as cam­paign man­agers or oth­er­wise worked for the ref­er­en­dum cam­paign. “[I]n Nebraska, our state Constitution … estab­lish­es a strong tra­di­tion with a clear sep­a­ra­tion of pow­ers,” ACLU Executive Director Danielle Conrad said. ““This is way beyond what the gov­er­nor can do in his per­son­al capac­i­ty. This is about blur­ring the lines and over­step­ping the bounds.”

(P. Hammel, ​“ACLU of Nebraska sues to block exe­cu­tions, says Ricketts over­stepped in ref­er­en­dum process,” Omaha World-Herald, December 4, 2017; J. Young, ​“ACLU to file law­suit on behalf of death row inmates against Ricketts, Corrections Department,” Lincoln Journal-Star, December 4, 2017.) Read the Nebraska death-row pris­on­er’s law­suit here. See Nebraska and States With and Without the Death Penalty.

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