Nebraska requires statewide initiatives to have signatures from 5% of the last vote cast from at least 38 of the state’s 93 counties. On July 14, the Eighth Circuit ruled 2-1 that Kent Bernbeck does not have standing to challenge the county distribution requirement. The decision reverses the 2014 U.S. District Court decision that struck down the Nebraska county distribution requirement.

The case is Bernbeck v Gale, 15-1983. Judge Clarence Beam, a Reagan appointee, wrote the decision, which was also signed by Judge Bobby Shepherd, a Bush Jr. appointee. Jane Kelly, an Obama appointee, dissented. The dissent mentions the U.S. Supreme Court decisions that say ballot access laws can be challenged whether the plaintiff tried to get on the ballot or not. There is also an Eighth Circuit opinion that says plaintiffs need not try to petition in order to have standing, which the majority does not mention, although the dissent does. It is very likely that Bernbeck will ask for a rehearing en banc. The majority said he doesn’t have standing because, even though he has been active in promoting various Nebraska initiatives for decades, he didn’t actually try to put a statewide initiative on the ballot recently.