CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/6/2023 1

Overturning State-Court Blocking 

of a Ballot Initiative 

Anderson v. Gale (Richard G. Kopf, D. Neb. 4:02-cv-3257) 

Supporters of a ballot initiative filed a federal complaint seeking relief from a state-court invalidation of the initiative as concerning 

more than one subject. On the day that the complaint was filed, the 

federal judge held a conference call with the parties and scheduled a 

hearing for two days later. The judge denied immediate relief so as 

to not interfere unduly with the coming election and because he 

found no constitutional problem with the one-subject rule. 

Subject: Ballot measures. Topics: Ballot measure; getting on the 

ballot; intervention; matters for state courts. 

On September 23, 2002, supporters of a proposed gaming initiative filed a 

federal complaint in the District of Nebraska against Nebraska’s secretary of 

state, seeking relief from a state court invalidation of the initiative as concerning more than one subject.1

The petition sought to accomplish the following: 

(1) Revise the Nebraska Constitution to allow electronic gaming devices 

under local control; 

(2) Provide limitations on the manner income from the gaming could 

be spent; 

(3) Limit the ability of the Legislature to tax the gaming; and 

(4) Require the creation of a gaming commission.2

With their complaint, the plaintiffs filed a motion for a temporary restraining order.3

 On the day that the action was filed, Judge Richard G. Kopf 

held a conference call with the parties and then scheduled a hearing for two 

days later.4 When Judge Kopf received a motion for a temporary restraining 

order, it was his practice to have chambers contact plaintiffs’ counsel immediately to obtain contact information for defense counsel, if possible.5

On September 24, the director of Gambling With the Good Life, which 

opposed expansion of gambling in Nebraska and which obtained the statecourt order blocking the initiative’s inclusion on the general-election ballot, 

sought to intervene as a defendant.6

1. Complaint, Anderson v. Gale, No. 4:02-cv-3257 (D. Neb. Sept. 23, 2002), D.E. 1; see

Butch Mabin, Gambling Supporters File Federal Lawsuit, Lincoln J. Star, Sept. 24, 2002, at 

A1. 

2. Loontjer v. Robinson, 266 Neb. 902, 903, 670 N.W.2d 301, 303 (2003). 

3. Docket Sheet, Anderson, No. 4:02-cv-3257 (D. Neb. Sept. 23, 2002). 

4. Order, id. (Sept. 23, 2002), D.E. 4. 

Tim Reagan interviewed Judge Kopf for this report by telephone on September 10, 2013. 

5. Interview with Hon. Richard G. Kopf, Sept. 10, 2013. 

6. Intervention Motion, Anderson, No. 4:02-cv-3257 (D. Neb. Sept. 24, 2002), D.E. 5; see

Leslie Reed, Gambling Foes Seek to Intervene in Suit, Omaha World-Herald, Sept. 25, 2002, 

at 2B. 
Overturning State-Court Blocking of a Ballot Initiative 

2 Federal Judicial Center 10/6/2023 

On September 25, Judge Kopf granted intervention and denied immediate injunctive relief.7

 He was reluctant to interfere with the impending election: “Properly run elections are not like faucets. They cannot be turned on 

and off at will.”8

 Also, Nebraska’s supreme court had yet to rule on the case’s 

merits, but it had indicated that if the lower-court judge’s ruling was in error 

then the initiative could be placed on a subsequent ballot.9 Perhaps most importantly, Judge Kopf found no constitutional violation in restricting ballot 

initiatives to one subject.10

On November 8, Judge Kopf granted the plaintiffs’ October 16 motion to 

dismiss their complaint without prejudice.11

Nebraska’s supreme court determined on October 24, 2003, that “the petition was legally insufficient because the sponsors failed to include a sworn 

statement of their names and street addresses.”12 Three of the court’s seven 

justices also opined that the initiative violated the single-subject rule.13

7. Opinion, Anderson, No. 4:02-cv-3257 (D. Neb. Sept. 25, 2002), D.E. 12; Minutes, id.

(Sept. 25, 2002), D.E. 11; see Butch Mabin, Judge Denies Gaming Petition, Lincoln J. Star, 

Sept. 26, 2002, at A1; Leslie Reed, Ruling Ends Slot Fans’ 2002 Effort, Omaha World-Herald, 

Sept. 26, 2002, at 1A. 

8. Opinion, supra note 7, at 2. 

9. Id. at 1–2. 

10. Id. at 2–3. 

11. Judgment, Anderson, No. 4:02-cv-3257 (D. Neb. Nov. 8, 2002), D.E. 17; see Motion, 

id. (Oct. 16, 2002), D.E. 16. 

12. Loontjer v. Robinson, 266 Neb. 902, 903, 670 N.W.2d 301, 303 (2003); see Leslie 

Reed, High Court Keeps Slots Off Ballot, Omaha World-Herald, Oct. 24, 2003, at 1A. 

13. Loontjer, 266 Neb. at 912–20, 670 N.W.2d at 309–14 (Chief Justice John V. Hendry, 

concurring in the result); id. at 920–27, 670 N.W.2d at 314–19 (Justices John F. Wright and 

John Gerrard, concurring); see Robynn Tysver, Court Kills Gambling Petition, Omaha 

World-Herald, Oct. 25, 2003, at 1A.