By AARON SANDERFORD
Nebraska Examiner
LINCOLN — The Nebraska Legislature likely won’t consider a Cherry County Republican’s allegation that her representative, State Sen. Tom Brewer, doesn’t live in his Sandhills district and should forfeit his seat.
That was the consensus among more than a dozen state lawmakers contacted after Valentine resident Sherri Bacon filed a complaint with the Clerk of the Legislature that Brewer lived in Cass County, not Sheridan County in District 43, which he represents.
One state senator, speaking on condition of anonymity, said the Legislature should consider the state constitutional question Bacon raised about residency from Article III, Section 8 before risking the legality of any bills Brewer helps pass in a narrow vote.
“This could kill every major bill this session if he’s deemed ineligible,” the senator said.
Potential legal complications
Conservative activists have spent hours discussing the potential chaos if the Legislature or the courts concluded Brewer didn’t live in the district. A state constitutional provision says no senator elected in a district “shall hold his office after he shall have removed (sic) from such district.”
Privately, some political observers said they worried about the repercussions if a court eventually ruled Brewer’s votes could not be counted. The Legislature is narrowly divided on a number of long-term GOP goals such as income tax cuts, concealed carry of a handgun without a permit, and additional abortion restrictions.
Legal complications could be possible on legislation that narrowly passed final reading if the Legislature later found a senator ineligible for having “removed from the district” he represents, said Anthony Schutz, a law professor at the University of Nebraska-Lincoln and one of the state’s top experts on the Nebraska Constitution.
“If a bill were to pass with a margin of one vote, and the ineligible senator was one of those voting for the bill, then there is a possibility that the law was not constitutionally enacted,” said Schutz.
He stressed, however, that the courts were unlikely to weigh in on whether a senator is eligible. If the Legislature does nothing, Schutz said, “I am not aware of any other means of raising the issue.”
Legal standing to complain
Some senators questioned the statute the Clerk of the Legislature cited, 50-1501, concluding Bacon didn’t have standing to file her complaint. On its face, it appears to allow only losing candidates to challenge the qualifications of someone elected to the Legislature.
State Sen. John Cavanuagh of Omaha, an attorney, disagrees. His read of the statute was that it was never intended to limit citizen complaints like Bacon’s. Applying the law to all citizen complaints against senators “just doesn’t make sense,” he said, and he thinks Bacon would have a legal argument to sue.
Schutz said the statute does not spell out a right for Bacon to have her complaint heard by the Legislature, nor does it preclude Bacon from filing a complaint. The Legislature has the discretion to consider the complaint on its own.
“The statute does not tie the Legislature’s hands,” he said.
Legislature unlikely to act
As of Friday, several senators in both parties said they had heard no colleagues calling for an investigation of Brewer’s residency.
Sen. Lou Ann Linehan of Omaha, one of the Legislature’s most influential members, said Brewer is unlikely to face additional scrutiny. She said he is popular among his peers and is serving his last term before he is term limited.
“I don’t even know if it’s percolating,” Linehan said. “Nobody’s mentioned it to me.”
Sen. Tom Briese of Albion, who chairs the Executive Board, which would first consider such a complaint, said he had nothing to report. Neither did Speaker of the Legislature John Arch of La Vista.
Brewer has said he splits time between his homes in Cass and Sheridan Counties depending on the length of legislative session. He received a homestead exemption on the Cass County home. The exemption is available for a property owner’s “primary home.”