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Opinion 98040

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

rights."




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.




Sincerely yours,




DON STENBERG

Attorney General








Dale A. Comer

Assistant Attorney General