On August 31, the Eighth Circuit issued an opinion in Eggers v Evnen, 22-2268. This is the case over the Nebraska county distribution requirement for statewide initiatives. By a 2-1 vote, the panel reversed the U.S. District Court and said the law is likely constitutional. Therefore it dissolved the injunctive relief that had been granted by the U.S. District Court. The initiative proponents who had filed the case had been trying to qualify an initiative related to marijuana.

Here is the opinion. The majority consists of Judge Raymond Gruender, a Bush Jr. appointee; and Judge David Stras, a Trump appointee. The dissent is by Judge Jane L. Kelly, an Obama appointee.

The majority says initiatives aren’t created by the U.S. Constitution, so states need not treat each voter equally in matters concerning the initiative process. But the dissent quite shrewdly points out that the U.S. Constitution doesn’t require the states to let the voters elect presidential electors either. Nevertheless, the U.S. Supreme Court struck down county distribution requirements for independent presidential petitions in 1969 in Moore v Ogilvie. The majority does not discuss that very powerful point.

On August 31, a California trial state court in Alameda County ruled that an Oakland initiative should remain on the ballot. It asks voters if they wish to allow permanent resident alien adult voters vote in Oakland School Board elections. Some voters had sued to remove it from the ballot. But the judge said it is customary to consider the constitutionality of ballot measures only after the election is over.