Background
Nebraska law permits a voting-age U.S. citizen who resides outside the United States, has never resided in the United States, has not registered to vote in another state, and has a parent registered in Nebraska to register and vote in a Nebraska county where either parent is registered. The Republican National Committee, voter Jack Riggins, and voter and county-engineer candidate Pamela Dingman challenged that provision, Neb. Rev. Stat. § 32-939(2), as inconsistent with the Nebraska Constitution’s requirement that an elector have resided within the state, county, and voting precinct.
The Lancaster County District Court granted summary judgment to Secretary of State Robert Evnen and dismissed the challengers’ amended complaint with prejudice. It found that Dingman had standing as a candidate but concluded that the challengers had not shown the statute to be unconstitutional on its face. The challengers appealed, and the Secretary cross-appealed the standing determination.
The Court’s Holding
The Nebraska Supreme Court affirmed. Relying on the reasoning of the U.S. Supreme Court’s decision in Bost v. Illinois State Board of Elections, the court held that Dingman had common-law standing as a candidate because she had a concrete and particularized interest in the rules governing which votes would be counted in her election. Because one challenger had standing to seek the same declaratory and injunctive relief requested by all, the court did not decide whether the RNC or Riggins independently had standing. It also concluded that no indispensable-party defect deprived the courts of jurisdiction.
On the merits, the court held that the challengers failed to establish that § 32-939(2) was unconstitutional in every application. A person born abroad to Nebraska-domiciled parents could acquire a Nebraska domicile at birth and retain it until establishing a new domicile through both presence elsewhere and an intent to remain there. Such a person could satisfy the constitutional residency requirement while also falling within § 32-939(2). The court rejected the argument that the statute did no independent work because such a person was already covered as an “overseas citizen” under § 32-939(1), reasoning that the Legislature used different terms for the two categories and that an overseas citizen ordinarily had previously lived in the United States. Justice Cassel dissented on standing, concluding that Dingman’s asserted injury was not sufficiently direct, concrete, imminent, or palpable.
Key Takeaways
- A candidate has Nebraska common-law standing to challenge allegedly unlawful voting rules governing the candidate’s own election.
- A facial constitutional challenge fails if the statute has at least one constitutional application.
- A child may acquire a Nebraska domicile from Nebraska-domiciled parents at birth despite never having been physically present in the state.
Why It Matters
The decision leaves § 32-939(2) in effect and preserves a route for qualifying U.S. citizens born abroad to register and vote in Nebraska through a parent’s Nebraska registration. The court did not hold that every person eligible under the statute necessarily satisfies the Nebraska Constitution; it held only that the challengers’ facial attack failed because at least one constitutional application exists.
The ruling also recognizes candidate standing under Nebraska common law to bring a preelection challenge to rules governing vote counting, while leaving unresolved whether the RNC or individual voters had independent standing.