AGO Opinion 98040
Constitutionality of Proposed Legislation Which Would Limit the Number of Sanitary Improvement District Board Members on a Particular SID Board to One Member Per Household
DATE: September 11, 1998
SUBJECT: Constitutionality of Proposed Legislation Which Would Limit the Number of Sanitary Improvement District Board Members on a Particular SID Board to One Member Per Household
REQUESTED BY: Senator Jon Bruning, Nebraska State Legislature
WRITTEN BY: Don Stenberg, Attorney General
Dale A. Comer, Assistant Attorney General
You have requested our opinion "about possible legislation
that would change election laws in Sanitary Improvement Districts."
You state that you are "considering a possible bill to be
introduced that would limit the number of SID board members to one
per household." You then ask us to advise you "as to the
constitutionality of this proposal."
You did not include any proposed legislation with your opinion
request letter; nor did you set out any specific constitutional
concerns regarding your proposal to limit the number of SID board
members to one per household. Consequently, your opinion request
involves a general question regarding unspecified statutory
language and procedures. We have previously indicated that a
general question on the constitutionality of proposed legislation
will necessarily result in a general response from this office.
Op. Att'y Gen. # 94012 (March 8, 1994). As a result, our response
to your opinion request must be in general terms, absent some
specific proposed legislation and absent some articulation of
specific constitutional questions.
It seems to us that there are two areas which present
potential constitutional problems with respect to your proposal.
First of all, if your prohibition on SID board membership in the
same household is established by a restriction on running for a SID
board, then there is a potential barrier to ballot access for SID
candidates. Such a barrier, in turn, raises concerns under the
First Amendment to the United States Constitution.
Restrictions on ballot access potentially burden two distinct
and fundamental rights: the right of individuals to associate for
the advancement of political beliefs and the right of qualified
voters to cast their votes effectively. Illinois State Board of
Elections v. Socialist Workers Party, 440 U.S. 173 (1979).
However, even though ballot access restrictions involve fundamental
rights, not all restrictions imposed by states on candidates'
eligibility for the ballot impose constitutionally suspect burdens,
since there must be substantial regulation of elections if they are
to be fair and honest. Anderson v. Celebrezze, 460 U.S. 780
(1983). Therefore, a flexible standard applies to ballot access
and voting restrictions:
A court considering a challenge to a state election law
must weigh "the character and magnitude of the asserted
injury to the rights protected by the First and
Fourteenth Amendments the plaintiff seeks to vindicate"
against "the precise interests put forward by the State
as justifications for the burden imposed by its rule,"
taking into consideration "the extent to which those
interests make it necessary to burden the plaintiff's
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (citations omitted).
In the present case, we assume that one possible formulation
of your proposed legislation would involve a prohibition against
running for a SID board seat if another member of the candidate's
household already serves on the SID board. While such a
prohibition would probably not involve a large number of
candidates, it seems to us that it would impose a fairly severe
restriction upon the rights of those potential SID candidates
subject to its provisions. As a result, the State would need to
offer some fairly significant interests as justifications for the
burden imposed by the statute. Since we do not have a proposed
statute or any legislative policy statements before us, we cannot
say what interests the State would serve by such a restriction upon
candidacy for a SID board. We do suggest, however, that if you
propose such legislation, you should take pains to create a
legislative record which clearly illustrates the reasons for and
the State interests furthered by the restriction on ballot access.
It also seems to us that one way to avoid the potential First
Amendment problems inherent in a restriction upon SID ballot access
for multiple members of the same household would be to formulate
your restriction as an eligibility requirement for assuming office
on a SID board. Under such a formulation of your proposal,
individuals could run for membership on a SID board without any
restrictions pertaining to other household members, but would only
be eligible to take office on that board if no one else from their
household served on the board at the time they were to take office.
Under those circumstances, the restriction upon board service from
the same household would be an eligibility requirement rather than
a restriction upon ballot access.
The second area where it seems to us that there are potential
constitutional problems with your proposal involves the Equal
Protection provisions of the state and federal constitutions.
Those constitutional provisions prohibit improper disparate
treatment or improper classifications of people who are otherwise
similarly situated. With regard to your proposal, the
classification at issue would presumably involve candidates for a
SID board who have members of their household serving on the board
as distinguished from all other SID candidates.
Where a statute is challenged under the Equal Protection
provisions of the state and federal constitutions, "[t]he general
rule is that legislation is presumed to be valid and will be
sustained if the classification drawn by the statute is rationally
related to a legitimate state interest." Robotham v. State, 241
Neb. 379, 385, 488 N.W.2d 533, 539 (1992). There are two
exceptions to this rule involving "suspect classifications" based
upon race, age, national origin, etc., and classifications
pertaining to fundamental rights. Clements v. Fashing, 457 U.S.
957 (1982); Robotham v. State, supra. To sustain the
constitutional validity of classifications in those latter areas,
there must be a showing of a compelling state interest. Robotham
v. State, supra.
It appears to us that your proposed classification between SID
candidates with members of their household on a SID board and all
other SID candidates does not involve a "suspect class." In
addition, candidacy for office is not a fundamental right.
Clements v. Fashing, supra. Therefore, we believe that the
constitutionality of your proposal would be tested by determining
whether the statute setting out your restriction upon SID
membership is rationally related to a legitimate state interest.
In that regard, as we noted above, you have not provided us with a
proposed statute or any legislative policy statements from which we
can determine what interests the State would serve by a restriction
upon candidacy for a SID board under the circumstances you have
proposed. However, we assume that there are legitimate state
interests underlying your consideration of this legislation, and
once again, we suggest that you should make a concerted effort to
create a legislative record which clearly illustrates the
legitimate State interests furthered by your proposal.
Dale A. Comer
Assistant Attorney General