State ex rel. Davis v. Evnen

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
State of Nebraska ex rel. Al Davis et al.,
relators, v. Robert B. Evnen, Nebraska
Secretary of State, respondent.
___ N.W.3d ___
Filed September 10, 2026. 	No. S-26-720.
1. Constitutional Law: Justiciable Issues: Appeal and Error. Questions
of justiciability and of constitutional interpretation that do not involve
factual dispute are questions of law.
2. Appeal and Error. An appellate court reviews questions of law de
novo, drawing independent conclusions irrespective of any decision
made by the Nebraska Secretary of State.
3. Mandamus: Words and Phrases. Mandamus is a law action and repre-
sents an extraordinary remedy, not a writ of right.
4. Mandamus. Whether to grant a writ of mandamus is within a court’s
discretion.
5. Mandamus: Proof. Mandamus relief is available if the movant can
show (1) a clear right to the relief sought, (2) a corresponding clear duty
to perform the act requested, and (3) that no other plain and adequate
remedy is available in the ordinary course of the law.
6. ____: ____. In a mandamus action, the burden lies on the party seeking
mandamus to show clearly and conclusively that the party is entitled to
the particular thing the relator asks, as the respondent is legally obli-
gated to act.
7. Initiative and Referendum: Justiciable Issues. A preelection challenge
based on the procedural requirements to a voter ballot initiative’s place-
ment on the ballot is ripe for resolution.
8. Initiative and Referendum. Sufficiency of a ballot, including the single
subject requirement, is a procedural requirement suitable for preelection
determination.
9. Constitutional Law. A constitution represents the supreme written will
of the people regarding the framework for their government.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:31 AM CDT

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STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
10. Constitutional Law: Initiative and Referendum. The right of initia-
tive is precious to the people and one which the courts are zealous to
preserve to the fullest tenable measure of spirit as well as letter.
11. ____: ____. The power of initiative must be liberally construed to pro-
mote the democratic process, and provisions authorizing the initiative
should be construed in such a manner that the legislative power reserved
in the people is effectual.
12. ____: ____. A purpose of the single subject rule is to avoid logroll-
ing. That is the practice of combining dissimilar propositions into one
proposed amendment so that voters must vote for or against the whole
package even though they would have voted differently had the proposi-
tions been submitted separately.
13. ____: ____. The Nebraska Supreme Court applies the natural and neces-
sary connection test to the single subject requirement for voter initia-
tives under Neb. Const. art. III, § 2.
14. Initiative and Referendum. Under the natural and necessary connec-
tion test, where the limits of a proposed law, having natural and neces-
sary connection with each other, and, together, are a part of one general
subject, the proposal is a single and not a dual proposition.
15. Constitutional Law: Initiative and Referendum: Intent. The control-
ling consideration in determining the singleness of a subject for pur-
poses of article III, § 2, of the Nebraska Constitution is its singleness
of purpose and relationship of the details to the general subject, not the
strict necessity of any given detail to carry out the general subject.
16. Initiative and Referendum: Intent. An initiative’s general subject is
defined by its primary purpose.
17. Constitutional Law: Initiative and Referendum. A review of a consti-
tutional initiative for legal sufficiency should focus on the actual text of
the initiative.
18. Initiative and Referendum. A general subject must be characterized at
a level of specificity that allows for meaningful review of the natural
and necessary connection between it and the initiative’s other purposes.
19. Constitutional Law: Initiative and Referendum. The single subject
requirement may not be circumvented by selecting a general subject so
broad that the rule is evaded as a meaningful constitutional check on the
initiative process.
Original action. Writ of mandamus denied.
Alexander S. Arkfeld and Daniel J. Gutman, of Gutman Law
Group, for relators.

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
Michael T. Hilgers, Attorney General, Zachary B. Pohlman,
and Cody S. Barnett for respondent.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Per Curiam.
INTRODUCTION
Sponsors of a ballot initiative brought this mandamus action
to compel the Nebraska Secretary of State to place on the
November 2026 general election ballot their proposed initiative
seeking a constitutional amendment to protect the initiative and
referendum powers. Because the proposed initiative violates
the “single subject rule” set forth in Neb. Const. art. III, § 2,
we deny the writ.
BACKGROUND
Article III, § 2
We start by setting forth, in its entirety, the constitutional
section reserving the power of initiative:
The first power reserved by the people is the initiative
whereby 	laws 	may 	be 	enacted 	and 	constitutional
amendments adopted by the people independently of
the Legislature. This power may be invoked by petition
wherein the proposed measure shall be set forth at length.
If the petition be for the enactment of a law, it shall
be signed by seven percent of the registered voters of
the state, and if the petition be for the amendment of the
Constitution, the petition therefor shall be signed by ten
percent of such registered voters. In all cases the registered
voters signing such petition shall be so distributed as to
include five percent of the registered voters of each of
two-fifths of the counties of the state, and when thus
signed, the petition shall be filed with the Secretary of
State who shall submit the measure thus proposed to the
electors of the state at the first general election held not
less than four months after such petition shall have been

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STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
filed. The same measure, either in form or in essential
substance, 	shall 	not 	be 	submitted 	to 	the 	people 	by
initiative petition, either affirmatively or negatively, more
often than once in three years. If conflicting measures
submitted to the people at the same election be approved,
the one receiving the highest number of affirmative votes
shall thereby become law as to all conflicting provisions.
The constitutional limitations as to the scope and subject
matter of statutes enacted by the Legislature shall apply
to those enacted by the initiative. Initiative measures
shall contain only one subject. The Legislature shall not
amend, repeal, modify, or impair a law enacted by the
people by initiative, contemporaneously with the adoption
of this initiative measure or at any time thereafter, except
upon a vote of at least two-thirds of all the members of
the Legislature. 1
Although we have emphasized the language imposing the sin-
gle subject rule, all of § 2 is important. Context matters. And
§ 2 sets forth the parameters of the reserved power of initiative.
Ballot Initiative
Al Davis, Dawn Essink, and JoVanora Galbreath (collec-
tively the Sponsors) are the sponsors of the ballot initiative
measure that is the subject of this action. They seek to have
the “Protect Nebraskans’ Initiative & Referendum Powers” (the
Initiative) placed on the November 2026 general election bal-
lot. The stated object of the Initiative is to
[a]mend the Nebraska Constitution to protect the people’s
reserved initiative and referendum powers by requiring a
four-fifths vote of the Legislature to change, impair, or
repeal citizen-initiated laws or to pass new laws affecting
the initiative and referendum process, and prohibiting all
legislative enactments that condition, restrict, burden, or
impair these reserved powers.
1 Neb. Const. art. III, § 2 (emphasis supplied).

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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
The proposed constitutional amendment would amend two
sections of the Nebraska Constitution. Above, we set forth the
entire text of article III, § 2. The proposed amendment would
alter only the last sentence:
The Legislature shall not amend, repeal, modify, or impair
a law enacted by the people by initiative, contemporane-
ously with the adoption of this initiative measure Initiative
Measure 418, adopted November 2, 2004, or at any time
thereafter, except upon a vote of at least two-thirds four-
fifths of all the members of the Legislature.
It would amend article III, § 4, as follows:
The whole number of votes cast for Governor at the
general election next preceding the filing of an initiative
or referendum petition shall be the basis on which the
number of signatures to such petition shall be computed.
The veto power of the Governor shall not extend to
measures initiated by or referred to the people. A measure
initiated shall become a law or part of the Constitution,
as the case may be, when a majority of the votes cast
thereon, and not less than thirty-five per cent of the total
vote cast at the election at which the same was submitted,
are cast in favor thereof, and shall take effect upon
proclamation by the Governor which shall be made within
ten days after the official canvass of such votes. The vote
upon initiative and referendum measures shall be returned
and canvassed in the manner prescribed for the canvass
of votes for president. The method of submitting and
adopting amendments to the Constitution provided by this
section shall be supplementary to the method prescribed
in the article of this Constitution, entitled, “Amendments”
and the latter shall in no case be construed to conflict
herewith. The provisions with respect to the initiative and
referendum shall be self-executing, but legislation may
be enacted to facilitate and safeguard their operation.
upon a vote of at least four-fifths of all the members of
the Legislature, and only to advance a compelling state

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STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
interest achieved by the least restrictive means. Such
laws may include neutral, ministerial, and administrative
laws necessary to facilitate the fair, orderly, and efficient
administration of these powers, but no law shall be valid
that conditions, restricts, burdens, or otherwise impairs
the exercise of these powers. All propositions submitted
in pursuance hereof shall be submitted in a non-partisan
manner and without any indication or suggestion on the
ballot that they have been approved or endorsed by any
political party or organization. Only the title or proper
descriptive words of measures shall be printed on the
ballot and when two or more measures have the same
title they shall be numbered consecutively in the order
of filing with the Secretary of State and the number shall
be followed by the name of the first petitioner on the
corresponding petition.
The Sponsors delivered to Nebraska Secretary of State
Robert B. Evnen (the Secretary) enough signatures to place the
Initiative on the ballot.
The Secretary notified the Nebraska Attorney General of the
initiative petition, and the Attorney General’s office prepared
an explanatory statement and ballot title to be printed on the
ballot. The explanatory statement would provide:
A vote “FOR” will amend the Nebraska Constitution
to: (1) Require a four-fifths vote of the Legislature to
amend, repeal, modify, or impair a law enacted by the
people by initiative on or after November 2, 2004; (2)
Require a four-fifths vote of the Legislature to pass laws
to facilitate and safeguard the initiative and referendum
process 	only 	to 	advance 	a 	compelling 	state 	interest
achieved by the least restrictive means; and (3) Prohibit
the Legislature from passing laws that condition, restrict,
burden, or impair the exercise of the initiative and
referendum powers.
A vote “AGAINST” means the Nebraska Constitution
will not be amended in this manner.

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STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
(Emphasis in original.) Below the explanatory statement, the
ballot title would state:
Shall the Nebraska Constitution be amended to: (1)
Require a four-fifths vote of the Legislature to amend,
repeal, modify, or impair a law enacted by the people by
initiative on or after November 2, 2004; (2) Require a
four-fifths vote of the Legislature to pass laws to facilitate
and safeguard the initiative and referendum process only
to advance a compelling state interest achieved by the least
restrictive means; and (3) Prohibit the Legislature from
passing laws that condition, restrict, burden, or impair the
exercise of the initiative and referendum powers?
The Challenge
A current and a former state senator filed a joint objection
with the Secretary. They asserted that the Initiative violates
Nebraska’s constitutional single subject rule and should be
withheld from the general election ballot.
On August 31, 2026, the Secretary informed the Sponsors
that he would not place the Initiative on the ballot. He deter-
mined that the Initiative violated the single subject rule.
Proceedings in Nebraska Supreme Court
The Sponsors filed with this court an emergency application
for leave to commence an original action, which we granted.
They asserted in their verified petition for writ of mandamus
that the Initiative contains a single subject and meets all appli-
cable constitutional and statutory requirements to place an
initiative measure on the ballot.
Based on the verified petition, we issued an alternative writ
of mandamus instructing the Secretary to certify the Initiative
for placement on the November 2026 general election ballot
or show cause why a preemptory writ commanding him to
do so should not issue. We later sustained a stipulated motion
to supplement the verified petition in order to include as an
exhibit the Secretary’s formal determination letter.

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STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
The Secretary responded to our alterative writ. He denied
having a purely ministerial and clear legal duty to certify the
initiative for placement on the general election ballot. The
Secretary asserted that he has a legal obligation under Neb.
Rev. Stat. § 32-1409(3) (Supp. 2025) to “determine if con-
stitutional and statutory requirements have been met” before
placing an initiative on the general election ballot. According
to the Secretary, the Initiative violated the single subject rule
and, thus, was legally insufficient to be placed on the ballot.
We ordered the parties to file simultaneous briefs and ordered
that the matter be submitted without oral argument. 2
ISSUE PRESENTED
The question is whether a peremptory writ should be issued
to the Secretary. The answer depends on whether the Initiative
satisfies the single subject rule.
APPLICABLE STANDARDS
[1,2] Questions of justiciability and of constitutional inter-
pretation that do not involve factual dispute are questions of
law. 3 An appellate court reviews questions of law de novo,
drawing independent conclusions irrespective of any decision
made by the Nebraska Secretary of State. 4
[3,4] Mandamus is a law action and represents an extraor-
dinary remedy, not a writ of right. 5 Whether to grant a writ of
mandamus is within a court’s discretion. 6
[5,6] Mandamus relief is available if the movant can show
(1) a clear right to the relief sought, (2) a corresponding clear
duty to perform the act requested, and (3) that no other plain
and adequate remedy is available in the ordinary course of the
2 See Neb. Ct. R. App. P. § 2-111(B)(1)(a) (rev. 2022).
3 State ex rel. Constance v. Evnen, 317 Neb. 600, 10 N.W.3d 763 (2024).
4 See State ex rel. Wagner v. Evnen, 307 Neb. 142, 948 N.W.2d 244 (2020).
5 State ex rel. Constance v. Evnen, supra note 3.
6 Id.

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STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
law. 7 In a mandamus action, the burden lies on the party seek-
ing mandamus to show clearly and conclusively that the party
is entitled to the particular thing the relator asks, as the
respondent is legally obligated to act. 8
[7,8] A preelection 	challenge 	based 	on 	the 	procedural
requirements to a voter ballot initiative’s placement on the
ballot is ripe for resolution. 9 Sufficiency of a ballot, including
the single subject requirement, is a procedural requirement
suitable for preelection determination. 10
ANALYSIS
We begin our analysis with a discussion of the initiative
right and the single subject limitation on that right. Next,
we summarize the parties’ arguments related to whether the
Initiative contains a single subject. Then, we discuss our case
law applying a natural and necessary connection test to ballot
initiatives. Finally, we apply the law to the Initiative.
Right of Initiative and Single Subject Rule
[9] A constitution represents the supreme written will of
the people regarding the framework for their government. 11
Nebraska’s constitution allows the people to enact laws and
amend the constitution through the initiative process. Neb.
Const. art. III, § 2, begins by declaring that “[t]he first power
reserved by the people is the initiative whereby laws may be
enacted and constitutional amendments adopted by the people
independently of the Legislature.”
[10,11] On numerous occasions, we have stated that the
right of initiative is precious to the people and one which
the courts are zealous to preserve to the fullest tenable
7 State ex rel. Brooks v. Evnen, 317 Neb. 581, 10 N.W.3d 887 (2024).
8 Id.
9 Id.
10 Id.
11 Id.

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STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
measure of spirit as well as letter. 12 The power of initia-
tive must be liberally construed to promote the democratic
process, and provisions authorizing the initiative should be
construed in such a manner that the legislative power reserved
in the people is effectual. 13
In 1998, the people adopted the single subject rule by voter
ballot initiative. 14 We have described the rule as a “‘“self-
imposed limitation[]”’” 15 on the power of initiative. That
limitation on the power of initiative must be enforced with
equal vigor.
[12] A purpose of the single subject rule is to avoid log-
rolling. 16 That is the practice of combining dissimilar proposi-
tions into one proposed amendment so that voters must vote
for or against the whole package even though they would
have voted differently had the propositions been submitted
separately. 17
[13-16] We apply the natural and necessary connection test
to the single subject requirement for voter initiatives under
Neb. Const. art. III, § 2. 18 Under the test, where the limits of
a proposed law, having natural and necessary connection with
each other, and, together, are a part of one general subject, the
proposal is a single and not a dual proposition. 19 The control-
ling consideration in determining the singleness of a subject
for purposes of article III, § 2, of the Nebraska Constitution
is its singleness of purpose and relationship of the details to
12 See id. (listing cases).
13 Id.
14 See 1997 Neb. Laws, L.R. 32CA, § 1.
15 State ex rel. Wagner v. Evnen, supra note 4, 307 Neb. at 163, 948 N.W.2d
at 260.
16 See State ex rel. Brooks v. Evnen, supra note 7.
17 See id.
18 See State ex rel. Loontjer v. Gale, 288 Neb. 973, 853 N.W.2d 494 (2014).
19 State ex rel. Brooks v. Evnen, supra note 7.

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STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
the general subject, not the strict necessity of any given detail
to carry out the general subject. 20 An initiative’s general sub-
ject is defined by its primary purpose. 21
Arguments
The Sponsors contend that each provision of the Initiative
is naturally and necessarily connected to its general subject.
They characterize the Initiative’s general subject as “limit-
ing the Legislature’s ability to interfere with the People’s
reserved power to make laws.” 22 The Sponsors assert that
the Legislature may interfere with the people’s lawmaking
power at two junctures: (1) before the power is exercised, by
changing the procedural rules governing the qualification of
initiatives and referendums for the ballot, and (2) after the
power is exercised, by amending or repealing voter-approved
laws. The Sponsors argue, “The Initiative expressly restricts
legislative interference at these two points in the process,
which are the only times when the Legislature has any role
to play.” 23
The Secretary disagrees. He reasons that the Initiative con-
tains at least two subjects—one limiting the Legislature’s
regulatory authority over the initiative process and the other
limiting the Legislature’s plenary authority over the subject
matter of any law enacted by initiative. And the Secretary
contends that the two subjects are not naturally and necessar-
ily connected, pointing out that the initiative process could
be protected without regulating its results. According to the
Secretary, “protecting the People’s power to make law is dis-
tinct from protecting the laws the People make.” 24
20 Id.
21 See id.
22 Brief for relators at 10.
23 Id. at 11.
24 Brief for respondent at 9.

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STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
Case Law Discussion
Since the addition of the single subject rule in 1998, we
have applied the natural and necessary connection test to an
initiative petition on a few occasions.
We first applied the test in Christensen v. Gale, 25 which
involved a challenge to an initiative petition seeking to expand
Medicaid coverage. The petition proposed to add a section 2,
containing five subsections, to the Medical Assistance Act.
We summarized that the subsections would:
(1) expand Medicaid to adults ages 19 through 64 whose
income is equal to or less than 138 percent of the fed-
eral poverty level, (2) direct the Department of Health
and Human Services (DHHS) to submit a state plan
amendment and all other necessary documents seeking
required approvals or waivers to the federal centers for
Medicare and Medicaid services, (3) direct DHHS to
take all actions necessary to maximize federal financial
participation in funding medical assistance pursuant to
section 2, (4) require that no greater burdens or restric-
tions may be imposed on persons eligible for medical
assistance under section 2 than any other population eli-
gible for medical assistance, and (5) require that section 2
shall apply notwithstanding any other provision of law or
federal waiver. 26
Challengers argued that the initiative had two distinct sub-
jects—the expansion of Medicaid eligibility and maximiza-
tion of federal financial participation in funding Medicaid.
But we reasoned that the expansion of Medicaid and its fund-
ing had a natural and necessary connection and a singleness
of purpose.
In State ex rel. McNally v. Evnen, 27 sponsors filed three
proposed ballot initiatives relating to gaming devices. We
25 Christensen v. Gale, 301 Neb. 19, 917 N.W.2d 145 (2018).
26 Id. at 22-23, 917 N.W.2d at 151.
27 State ex rel. McNally v. Evnen, 307 Neb. 103, 948 N.W.2d 463 (2020).

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STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
determined that our single subject review would focus on the
specific initiative being reviewed without reference to the other
initiatives. This focus naturally followed, because each initia-
tive would be separately considered by the electorate.
We described the initiatives as follows:
Generally, the first initiative would amend the prohi-
bition against gambling contained in Nebraska Const.
art. III, § 24, by permitting enactment of an exception
which would authorize games of chance conducted within
licensed racetrack enclosures; the second initiative would
enact certain statutes and amend certain existing statutes
to regulate games of chance operated by licensed gam-
ing operators within licensed racetrack enclosures; and
the third initiative would enact statutes that impose a tax
on revenues from games of chance and specify how such
taxes would be distributed. 28
With respect to the first initiative, the Secretary of State
asserted that it contained two subjects—authorizing all forms
of games of chance and restricting those games of chance to
racetrack enclosures. A plurality of this court found no single
subject violation, reasoning that “[i]dentifying and limiting
the location of a new activity is a detail naturally and neces-
sarily connected to its creation and not a separate subject.” 29
A concurrence providing the necessary fourth vote reasoned,
“The primary purpose of the proposal is to provide another
exception to the basic prohibition of [gaming]. The detail
of ‘where’ is naturally and necessarily related to the ‘what.’
Expansion of gaming presumes some location. The racetrack
limitation merely specifies the place.” 30
The Secretary of State argued that the second initiative vio-
lated the single subject rule because it exempted licensees of
the Nebraska Gaming Commission from sales and use tax and
28 Id. at 105, 948 N.W.2d at 469.
29 Id. at 123, 948 N.W.2d at 479.
30 Id. at 135, 948 N.W.2d at 486 (Cassel, J., concurring).

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STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
excluded gaming devices from the Mechanical Amusement
Device Tax Act. But the majority opinion 31 determined that
both tax-related provisions had a natural and necessary con-
nection to the regulation of games of chance, because its
parts all related to the same general subject of expanding
games of chance.
As to the third initiative, the majority reasoned that the dis-
tribution of a tax had a natural and necessary connection to the
imposition of the tax. Thus, a majority of this court found no
single subject violation.
In State ex rel. Wagner v. Evnen, 32 we determined that an
initiative contained more than one subject. We characterized
the initiative’s general subject as creation of a constitutional
right for persons with serious medical conditions to produce
and medicinally use cannabis, subject to a recommendation
by a licensed physician or nurse practitioner. We reasoned that
subsections (1) and (2) of the proposed amendment concerned
a personal constitutional right of patients with serious medi-
cal conditions to produce and use cannabis for themselves,
but subsection (3) concerned a constitutional right of private
entities to grow and sell cannabis to others and subsection
(4) would confer immunity from civil or criminal liability on
any private entity acting under the color of constitutional right
under subsection (3). Ultimately, we determined that the initia-
tive contained at least eight subjects. We explained:
In addition to enshrining in our constitution a right of
certain persons to produce and medicinally use cannabis
under subsections (1) and (2), in subsections (3) and (4),
the [proposed amendment] would enshrine a right and
immunity for entities to grow and sell cannabis; and in
subsections (6), (7), and (8), it would regulate the role
of cannabis in at least six areas of public life. These
31 See id. at 136, 948 N.W.2d at 486 (Cassel, J., concurring) (“I join the . . .
lead opinion regarding [the second and third initiatives]”).
32 State ex rel. Wagner v. Evnen, supra note 4.

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STATE EX REL. DAVIS v. EVNEN
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secondary purposes are not naturally and necessarily con-
nected to the [proposed amendment’s] primary purpose.
As such, they constitute logrolling. 33
In State ex rel. Brooks v. Evnen, 34 we found no single subject
violation concerning a constitutional amendment to include a
right to abortion. The proposed amendment would have added
a new constitutional section stating:
“All persons shall have a fundamental right to abortion
until fetal viability, or when needed to protect the life or
health of the pregnant patient, without interference from
the state or its political subdivisions. Fetal viability means
the point in pregnancy when, in the professional judgment
of the patient’s treating health care practitioner, there is
a significant likelihood of the fetus’ sustained survival
outside the uterus without the application of extraordinary
medical measures.” 35
Challengers to the proposed initiative essentially argued that
the limitations, parameters, and definitions were each separate
subjects. However, we determined that the parts of the initia-
tive were all naturally and necessarily related to the initiative’s
subject—creating a constitutional right to abortion.
Application
With the teachings from our prior decisions in mind, we
apply them to the Initiative. They are not easily applied.
[17-19] The first step in a single subject rule inquiry is
to determine the general subject or primary purpose of the
initiative measure. A review of a constitutional initiative for
legal sufficiency should focus on the actual text of the initia-
tive. 36 A general subject must be characterized at a level of
specificity that allows for meaningful review of the natural
33 Id. at 164, 948 N.W.2d at 260.
34 State ex rel. Brooks v. Evnen, supra note 7.
35 Id. at 584, 10 N.W.3d at 891.
36 See State ex rel. McNally v. Evnen, supra note 27.

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STATE EX REL. DAVIS v. EVNEN
Cite as 322 Neb. 256
and necessary connection between it and the initiative’s other
purposes. 37 The single subject requirement may not be cir-
cumvented by selecting a general subject so broad that the
rule is evaded as a meaningful constitutional check on the ini-
tiative process. 38
We recall the various provisions of the Initiative. In doing
so, we note that they would amend two sections of article III.
First, it would amend the constitutional section reserving the
power of initiative. 39 It would require a four-fifths vote of the
Legislature to amend, repeal, modify, or impair an initiative-
enacted law on or after November 2, 2004. Second, it would
change the constitutional section authorizing the Legislature
to enact laws that facilitate the initiative and referendum
process. 40 The Initiative would require a four-fifths vote of the
Legislature to enact laws that would facilitate and safeguard
the initiative and referendum process. It would require that
any such laws “advance a compelling state interest achieved
by the least restrictive means.” And the Initiative would pro-
hibit the Legislature from passing any law that conditions,
restricts, burdens, or impairs the exercise of the initiative and
referendum powers.
Regarding 	the 	general 	subject 	here, 	the 	parties 	dis-
agree. According to the Sponsors, “The general subject of
the Initiative is limiting the Legislature’s ability to inter-
fere with the People’s reserved power to make laws.” 41 The
Secretary identifies “at least two subjects.” 42 He argues that
“the Initiative limits the Legislature’s regulatory authority
over the initiative process itself.” 43 He adds that “the Initiative
37 State ex rel. Wagner v. Evnen, supra note 4.
38 Id.
39 See Neb. Const. art. III, § 2.
40 See Neb. Const. art. III, § 4.
41 Brief for relators at 10.
42 Brief for respondent at 11.
43 Id. (emphasis in original).

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also limits the Legislature’s plenary authority to legislate on
subjects unrelated to the initiative process.” 44 This, he argues,
“protects two different things: the initiative process itself and
the ends the process produces.” 45
We agree that the Initiative addresses at least two subjects.
The Initiative would not only strengthen the requirement of a
Legislative supermajority necessary to “amend, repeal, modify,
or impair a law,” 46 it would fundamentally change the balance
of legislative powers between the people, through the reserved
powers, and the Legislature.
The second step in the inquiry is whether the various provi-
sions of the Initiative have a natural and necessary connection
to the primary purpose. The provision requiring a vote of at
least four-fifths of the Legislature to enact legislation that
affects an initiative-enacted law bears a natural and necessary
connection to the Initiative’s primary purpose. By requiring
a heightened voting requirement, the provisions restrict the
Legislature’s ability to alter a law enacted through initiative.
But other provisions lack a clear connection. The proposed
amendments to article III, § 4, concern the initiative and ref-
erendum process, rather than an initiative-enacted law. They
require that any legislation seeking to facilitate or safeguard
the process also “advance a compelling state interest” and that
it be “achieved by the least restrictive means.” Essentially,
this language makes any such legislation subject to strict
scrutiny. 47 And by doing so, the Initiative injects the judicial
branch into matters of legislative policy. These requirements
44 Id. at 12 (emphasis in original).
45 Id. at 13 (emphasis in original).
46 Neb. Const. art. III, § 2.
47 Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739
N.W.2d 742 (2007) (under strict scrutiny review, law must be justified
by compelling governmental interest and must be narrowly tailored to
advance that interest). See, also, State ex rel. Bruning v. Gale, 284 Neb.
257, 817 N.W.2d 768 (2012).

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also demonstrate a secondary purpose. Although a strict scru-
tiny review would restrict the Legislature’s ability to alter a
law affecting the initiative or referendum process, it has no
connection to protecting initiative-enacted laws. Because it is
not naturally and necessarily connected to the purpose of the
Initiative, we determine that the Initiative contains more than
one subject.
An initiative containing more than one subject does not
meet the constitutional requirement of a single subject. The
Secretary of State has no duty to place on the general election
ballot a measure that is not valid and sufficient. 48 We need not
determine whether the Initiative also contains more than two
subjects. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and con-
troversy before it. 49
CONCLUSION
We conclude that the Initiative violates the single subject
rule. Accordingly, the Secretary does not have a duty to
place it on the general election ballot. The Sponsors’ applica-
tion for a writ of mandamus is denied. The alternative writ
is dissolved.
Writ of mandamus denied.
48 See § 32-1409(3).
49 Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128
(2022).
Papik, J., dissenting.
I respectfully disagree with the majority’s conclusion that
the ballot initiative before us contains more than one subject
in violation of Neb. Const. art. III, § 2. Under the test we
have recently applied to analyze single subject challenges to
ballot initiatives, I would conclude that this initiative contains
one subject. At a more fundamental level, however, I question
whether we should be using this test to resolve such chal-
lenges. I write separately to address both points.

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Natural and Necessary Connection Test.
In several recent single subject challenges to ballot initia-
tives, we have applied what we have called “the natural and
necessary connection test.” State ex rel. Brooks v. Evnen, 317
Neb. 581, 595, 10 N.W.3d 887, 897 (2024). We have described
the test as follows:
[W]here the limits of a proposed law, having natural and
necessary connection with each other, and, together, are a
part of one general subject, the proposal is a single and
not a dual proposition. The controlling factors in this
inquiry are the initiative’s singleness of purpose and the
relationship of other details to its general subject. An ini-
tiative’s general subject is defined by its primary purpose.
State ex rel. Wagner v. Evnen, 307 Neb. 142, 151, 948 N.W.2d
244, 253 (2020) (internal quotation marks omitted).
While that description of the test is, in isolation, somewhat
opaque, our prior cases provide assistance in understanding
how the test has been applied. Our practice has been to first
identify the proposed initiative’s general subject. See, State
ex rel. Brooks, supra; State ex rel. Wagner, supra. We then
ask whether the various details of the proposed initiative are
naturally and necessarily connected to that general subject
and each other. See, State ex rel. Brooks, supra; State ex rel.
Wagner, supra; Christensen v. Gale, 301 Neb. 19, 917 N.W.2d
145 (2018). We have emphasized, however, that in determin-
ing whether the various details of the proposed initiative are
sufficiently connected, the question is not whether one part
of the initiative could have been proposed without others or
whether the initiative presents “different policy issues,” see
Christensen, 301 Neb. at 35, 917 N.W.2d at 158, but, rather,
whether all the details relate to the general subject, see id. at
34, 917 N.W.2d at 157 (explaining that “controlling consider-
ation” in single subject analysis is “relationship of the details
to the general subject” and “not the strict necessity of any
given detail to carry out the general subject”). For reasons I

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will explain, I conclude that the proposed initiative passes the
natural and necessary connection test.
Our first task under the natural and necessary connection
test is to review the various aspects of the initiative proposal
and determine its general subject. The majority opinion clearly
explains the various aspects of the initiative proposal, so I feel
no need to rehash them here. The sponsors of the initiative
proposal characterize its subject as “limiting the Legislature’s
ability to interfere with the People’s reserved power to make
laws.” Brief for relators at 10. That description is, unsur-
prisingly, framed in the language of an advocate. Put more
neutrally, but still consistent with the content of the proposed
initiative, the general subject of the proposed initiative might
be described as the Legislature’s authority over the people’s
reserved power to make laws.
I recognize that we have previously cautioned that under the
natural and necessary connection test, a court cannot allow a
general subject to be characterized at so high a level of gener-
ality that the single subject requirement is circumvented. See
State ex rel. Wagner, supra. I grant that such a requirement is
necessary because of the ease with which one can, in defining
the “subject” of any measure, raise the level of generality to
encompass all of its potentially disparate elements. See, e.g.,
Planned Parenthood of the Heartland v. Hilgers, 317 Neb.
217, 9 N.W.3d 604 (2024) (Papik, J., concurring). But as easy
as it is to raise and lower the level of generality, it is equally
difficult to identify and describe the point at which a subject
has been defined so broadly that the single subject require-
ment has been circumvented. We have never attempted to
explain when that point is reached, I am not aware of another
court that has, and, frankly, I question whether it is even pos-
sible. See, e.g., Jeffrey S. Sutton, Who Decides? States as
Laboratories of Constitutional Experimentation 260 (2022)
(discussing “soaring level of generality problem” in deciding
“[h]ow high up the ladder of abstraction should a court go in
deciding what counts as a subject”).

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Given this difficulty, perhaps the best we can do is to
attempt to be consistent from case to case. But our prior
cases have permitted the general subject to be defined with
considerable breadth. This court has found that ballot initia-
tive measures passed the natural and necessary connection
test with general subjects as broad as the “constitutional right
to abortion,” see State ex rel. Brooks, 317 Neb. at 597, 10
N.W.3d at 898; “a regulatory scheme for operation of games
of chance,” see State ex rel. McNally v. Evnen, 307 Neb. 103,
127, 948 N.W.2d 463, 482 (2020); “Medicaid expansion,” see
Christensen, 301 Neb. at 34, 917 N.W.2d at 157; and “regu-
lating illegal aliens,” see City of Fremont v. Kotas, 279 Neb.
720, 728, 781 N.W.2d 456, 463 (2010), abrogated on other
grounds, City of North Platte v. Tilgner, 282 Neb. 328, 803
N.W.2d 469 (2011). Even in the one recent case in which this
court found that an initiative measure failed the natural and
necessary connection test, it was not because the general sub-
ject of the measure—“[a] constitutional right to produce and
medicinally use cannabis”—was too broad; indeed, this court
expressly found otherwise. See State ex rel. Wagner v. Evnen,
307 Neb. 142, 155, 948 N.W.2d 244, 255 (2020) (“[a] consti-
tutional right to produce and medicinally use cannabis is not
so broad as to evade the single subject rule”). In my view, a
general subject of the Legislature’s authority over the people’s
reserved power to make laws is not any broader than the gen-
eral subjects of which we have already approved.
The natural and necessary connection test requires that a
court go on to consider whether all the details of the proposed
initiative are naturally and necessarily connected to that gen-
eral subject and each other. I would conclude that the various
aspects of this initiative are sufficiently connected. The provi-
sion of the initiative that raises the number of votes neces-
sary for the Legislature to change a law enacted by initiative
concerns the Legislature’s authority over the people’s power
to make laws.

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So too, as I see it, do the other provisions of the initiative.
The initiative’s second provision would require a four-fifths
vote of the Legislature to enact laws that would “facilitate
and safeguard the initiative and referendum process.” It would
require that any such laws “advance a compelling state inter-
est achieved by the least restrictive means.” And the initiative
would prohibit the Legislature from passing any law that con-
ditions, restricts, burdens, or impairs the exercise of the initia-
tive and referendum powers. These provisions are, in my view,
like the first, insofar as they too limit legislative authority
over the people’s reserved lawmaking power. Even the “strict
scrutiny” language and the possible attendant involvement of
the judiciary, which the majority finds problematic, merely
adds a limitation to the Legislature’s authority to regulate the
process by which the people are allowed to make law.
The requirements of the initiative are also, in my view,
naturally and necessarily connected to each other. Although
some of the proposed initiative’s details apply to the initia-
tive and referendum process and others apply to laws passed
by voter initiative, each detail of the initiative takes aim at
the constitutional provisions granting the Legislature authority
over the initiative process. Each detail limits the power of the
Legislature over the people’s reserved power to make laws.
For these reasons, I would conclude that the initiative mea-
sure has one subject under the natural and necessary connec-
tion test.
Natural and Necessary Connection Test?
Although I would find that the initiative measure before
us has one subject under the natural and necessary connec-
tion test, I question whether we should be using the natural
and necessary connection test to analyze single subject chal-
lenges to ballot initiatives. The single subject requirement in
article III, § 2, is not the only time the term “single subject”
is referenced in the Nebraska Constitution. Long before the
single subject prohibition in article III, § 2, became a part

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of the constitution, another provision of the constitution pro-
vided that no legislative bill “shall contain more than one
subject.” See Neb. Const. art. III, § 14; Neb. Const. art. III,
§ 11 (1875).
Given the essentially identical language in article III, § 2,
and article III, § 14, one might assume that this court would use
the same analysis when considering single subject challenges
to ballot initiatives and statutes passed by the Legislature. That
assumption would be wrong. Although this court has articu-
lated multiple tests to analyze single subject challenges to
statutes passed by the Legislature, see Planned Parenthood of
the Heartland v. Hilgers, 317 Neb. 217, 9 N.W.3d 604 (2024),
it has made clear that the natural and necessary connection
test is stricter than tests to be used for assessing whether a
legislative bill contains more than one subject. See id. at 229,
9 N.W.3d at 613 (“[a]s a practical matter [the natural and nec-
essary connection test], when applied, tends to be stricter than
the test utilized in assessing whether a legislative enactment
comports with article III, § 14”). Because one test is stricter
than another, a statute enacted by the Legislature and an ini-
tiative proposal might be identical in all respects and yet the
statute passed by the Legislature could be found to have one
subject while the initiative proposal could be found to have
more than one.
I question whether the term “subject” should mean one
thing for purposes of article III, § 14, and something else for
purposes of article III, § 2. When the same word or phrase
is used in different parts of the same legal text, courts usu-
ally attempt to give the word or phrase consistent meaning.
See Adair Asset Mgmt. v. Terry’s Legacy, 293 Neb. 32, 37,
875 N.W.2d 421, 425 (2016) (“where the same words are
used repeatedly in the same act, unless the context requires
otherwise, the words are to have the same meaning”); Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 170 (2012) (“[a] word or phrase is presumed to
bear the same meaning throughout a text”). See, also, District

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of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L.
Ed. 2d 637 (2008) (recognizing consistent usage of phrase “the
people” across various provisions of U.S. Constitution).
We appear to have concluded that initiative proposals should
face a stricter single subject review than bills passed by the
Legislature in State ex rel. Loontjer v. Gale, 288 Neb. 973, 853
N.W.2d 494 (2014). I am not sure, however, that the rationale
put forward in State ex rel. Loontjer for that conclusion with-
stands scrutiny. The language in article III, § 2, providing
that “[i]nitiative measures shall contain only one subject” was
adopted by the voters in 1998. Prior to 1998, article III, § 2, had
already provided that “[t]he constitutional limitations as to the
scope and subject matter of statutes enacted by the Legislature
shall apply to those enacted by the initiative.” In State ex rel.
Loontjer, the court reasoned that the language applying the
limitations on the scope and subject matter of statutes to initia-
tives meant that initiatives were already governed by the single
subject limitation of article III, § 14, and therefore, if the 1998
amendment was to accomplish anything, it had to impose
something beyond the single subject limit on legislative bills.
See 288 Neb. at 998, 853 N.W.2d at 512 (“[b]ecause it was
added later, it necessarily implies a requirement that exceeds
the requirement that the subject matter of initiatives shall be
subject to the same requirements as legislative enactments”).
This conclusion, however, overlooked the fact that the 1998
amendment did something else. It subjected initiatives propos-
ing constitutional amendments to a single subject requirement
when they were previously not governed by one. See Anthony
B. Schutz, Direct Democracy: From Theory to Practice, 101
Neb. L. Rev. 1 (2022).
Aligning our tests for reviewing single subject challenges
to legislative bills and initiative proposals would also give us
an opportunity to adopt a test for assessing single subject chal-
lenges to initiative proposals that is, in my view, more consis-
tent with the word “subject.” Although the language of the nat-
ural and necessary connection test mentions the constitutional

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term “subject,” it also calls for substantial consideration of a
measure’s purpose. Indeed, we usually say that the “control-
ling consideration in determining the singleness of a proposed
amendment is its singleness of purpose and the relationship
of the details to the general subject.” See, e.g., Christensen v.
Gale, 301 Neb. 19, 32, 917 N.W.2d 145, 156 (2018) (emphasis
supplied). We also say that the general subject is to be “defined
by its primary purpose.” Id. (emphasis supplied).
As I have previously written with reference to the single
subject rule in article III, § 14, I believe that the history and
text of single subject provisions counsel against consideration
of a measure’s purpose in analyzing single subject chal-
lenges. See Planned Parenthood of the Heartland v. Hilgers,
317 Neb. 217, 9 N.W.3d 604 (2024) (Papik, J., concurring).
Instead, I have suggested that this court analyze single sub-
ject challenges under article III, § 14, by using a test used
by several other state supreme courts that, in summary, asks
whether an act “embrace[s] two or more dissimilar and dis-
cordant subjects that by no fair intendment can be consid-
ered as having any legitimate connection with or relation
to each other.” Planned Parenthood of the Heartland, 317
Neb. at 243, 9 N.W.3d at 621 (Papik, J., concurring) (quoting
Johnson v. Harrison, 47 Minn. 575, 50 N.W. 923 (1891)). In a
future case, I would be open to considering whether that same
test, or something like it, is the appropriate test for resolving
single subject challenges to initiative proposals under article
III, § 2.
I acknowledge that such a test would be less strict than
the natural and necessary connection test. Indeed, it might
fairly be critiqued as leading to invalidation of measures in
only “the most egregious cases.” See Richard Briffault, The
Single-Subject Rule: A State Constitutional Dilemma, 82 Alb.
L. Rev. 1629, 1659 (2018-19). Yet that is an outcome that we
appear to have accepted at least when it comes to reviewing
single subject challenges to legislative bills. Furthermore, I
fear a stricter approach is not without drawbacks of its own.

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I do not question that the Secretary of State and all the mem-
bers of this court are doing their level best to fairly and con-
sistently apply the natural and necessary connection test. But
given the difficulty in identifying how broad a “subject” is
allowed to be, a stringent single subject review can feel like
a bit of an “[e]ye of the [b]eholder” inquiry, rather than the
usual work of the judicial branch. See Daniel H. Lowenstein,
California Initiatives and the Single-Subject Rule, 30 UCLA
L. Rev. 936, 938 (1983). See, also, Grutter v. Bollinger, 539
U.S. 306, 357, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003)
(Thomas, J., concurring in part and dissenting in part) (stating
that “‘we know it when we see it’ approach” is “not capable
of judicial application”).
Conclusion.
I do not dispute that the initiative proposal before us amends
the state constitution in more than one way. It both makes it
more difficult for the Legislature to amend statutes that have
been passed by initiative and makes it more difficult for the
Legislature to pass statutes that regulate the initiative and
referendum process. But, as I understand our single subject
law, the relevant question is not whether a measure “does two
things”; it is whether those “things” are sufficiently related
to each other as to fall under a single subject. Because the
different aspects of this initiative proposal are both limita-
tions on the Legislature’s authority over the people’s power
to make law under our state constitution, I believe the aspects
are sufficiently related and I do not perceive a single subject
problem. I respectfully dissent from the majority’s decision to
the contrary.