The Impact of Initiative 424 on Nebraska

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The Impact of Initiative 424 on Nebraska

• A Post-Election Overview

2
Can 424 Be Challenged?

• Current Litigation
• State ex rel Hall et al. v. Gale et al.
• Alleges a pattern and practice of fraud in the
  gathering of over 40,000 signatures.
• Alleges the petition violates the single subject
  rule for ballot initiatives.
• Currently awaiting a decision from Lancaster
  County District Court Judge Karen Flowers.
• If successful would invalidate the initiative.

3
What Does 424 Do?

• Constitutional Amendment.
• The state shall not discriminate against, or
  grant preferential treatment to, any individual
  or group on the basis of race, sex, color,
  ethnicity, or national origin in the operation of
  public employment, public education, or public
  contracting.

4
What Does 424 Do?

• Forward Looking.
• This section shall apply only to action taken
  after the sections effective date.
• Nothing in this section shall invalidate any
  court order or consent decree this is in force as
  of the effective date of this section.

5
What Does 424 Do?

• Does not prohibit
• Nothing in this section prohibits action that
  must be taken to establish or maintain
  eligibility for any federal program, if
  ineligibility would result in a loss of federal
  funds to the state.
• Nothing in this section prohibits bona fide
  qualifications based on sex that are reasonably
  necessary to the normal operation of public
  employment, public education, or public
  contracting.

6
What Does 424 Do?

• Applies to
• For purposes of this section, state shall
  include, but not be limited to
• The State of Nebraska
• Any agency, department, office, board,
  commission, committee, division, unit, branch,
  bureau, council, or sub-unit of the state
• Any government institution or instrumentality of
  or within the state.
• Any public institution of higher education
• Any political subdivision of or within the state
  and

7
What Does 424 Do?

• Creates a cause of action.
• The remedies available for violations of this
  section shall be the same, regardless of the
  injured partys race, sex color, ethnicity, or
  national origin, as are otherwise available for
  violations of Nebraskas antidiscrimination law.

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Quick Summary

• The State (broadly defined) cannot grant
  preferential treatment based on race, ethnicity,
  gender, or national origin in
• Public Employment
• Public Contracting or
• Public Education.
• Forward looking and creates a cause of action.

9
424 Does Not

• Does not affect programs required under federal
  law.
• Does not affect private entities.
• Does not affect activities that are not
  preferential treatment.
• Does not affect programs that target
  socioeconomic or geographic diversity.

10
What About Nebraska Law?

• There are no state statutes authorizing any
  quotas or hiring preferences based upon race,
  sex, color, ethnicity, or national origin in
  Nebraska.
• The only hiring preference authorized in state
  law is for qualified veterans. (Neb. Rev. Stat.
  48-225 through 48-231 (2008))
• There are no state statutes authorizing any
  quotas or preferences based upon race, sex,
  color, ethnicity, or national origin in regard to
  public contracting for goods or services in
  Nebraska.
• The only contracting preference authorized in
  state law is for in state vendors receiving
  preference over out of state vendors.
  http//www.das.state.ne.us/materiel/statutes.htm

Source Nebraskans United
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Discussion