Nebraska Attorney General Opinion 26-005 — Obligation of Home-Rule City to Submit a Proposed Charter Amendment to the Ballot

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AUG 2 4 2026
Mik Hilar

MICHAEL T. HILGERS

# NEBRASKA DEPARTMENT OF JUSTICE

Opinion No. 26-005- August 24, 2026

OPINION FOR SENATOR BALLARD

Obligation of Home-Rule City to Submit a
Proposed Charter Amendment to the Ballot

Summary: The Nebraska Constitution requires municipal officials
to submit charter-amendment petitions that satisfy the
Constitution's signature requirement to a vote "at the next general
or special election not held within thirty days after such petition is
filed." Thus, assuming a charter-amendment petition satisfies the
signature requirement and is submitted in advance of 30 days prior
to the November 3 general election, the Constitution requires
municipal officials to submit the proposal for the November 3 ballot.
A municipality has no discretion to impose additional procedures
that would delay such a proposal to a subsequent election.

You have asked for an Attorney General opinion
regarding the constitutional obligation of city officials with
respect to charter-amendment petitions. Specifically, you
have asked, "Under existing state law, if a petition to
amend a home-rule charter satisfies the signature and
timeliness requirements of Neb. Const. art. XI, section 4,
does the home-rule city have any discretion to impose
additional procedural requirements or processes that could
keep such petition off the ballot for the next election not
within 30 days of when the petition was submitted?" If so,
you have asked whether the State Legislature could "pass
a statute limiting that discretion." Your request is made in
the context of three proposed amendments to the Lincoln
City Charter that were recently submitted to Lincoln city
officials for the November 3 election.

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## Op. Att'y Gen. No. 26-005 (Aug. 24, 2026)

We conclude that the City has no discretion to
establish or implement any procedure that would cause an
otherwise compliant charter-amendment petition to be
excluded from the ballot at the next general or special
election. The Constitution gives city officials a ministerial
duty when a petition to amend a municipal charter obtains
the requisite signatures: City officials "shall submit the
same to a vote of the qualified electors at the next general
or special election not held within thirty days after such
petition is filed." That language leaves no room for
municipalities to impose additional hurdles that could
keep such a petition from a vote at the next election outside
of 30 days. While the City of Lincoln may be a home-rule-
charter city, this does not give city officials license to
disobey a direct command of the State Constitution. Thus,
we conclude that existing law gives the City no discretion
to keep the three proposed charter amendments off the
November 3 ballot, so long as the Constitution's signature
requirement is met. No additional legislation is needed to
give effect to the Constitution's command to city officials.

Section I of our opinion provides the relevant
constitutional backdrop. Section II provides an analysis of
your question. Section III explains why the City of
Lincoln's home-rule status does not affect our analysis.
Section IV summarizes our opinion.

I.
A.

We start with a constitutional background of State
and municipal authority. Nebraska municipalities are
creatures of the State. Pro. Firefighters of Omaha v. City of
Omaha, 243 Neb. 166, 174 (1993). They are thus entirely
subject to the State-they may exercise only those powers
the State gives them. Johnson v. Vill. of Polk, 319 Neb. 352,
361 (2025); Obitz v. Airport Auth. of City of Red Cloud, 181

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## Obligation of Home-Rule City to Submit a Proposed Charter Amendment to the Ballot

Neb. 410, 418 (1967). And the power they do exercise is
subject to the Nebraska Constitution and Nebraska
Revised Statutes. Id.

The State Constitution gives cities with a
population of more than 5,000 inhabitants authority to
frame a charter creating a municipal government. Neb.
Const. art. XI, § 2. And cities of over 100,000 people may
adopt a "home rule charter." Neb. Const. art. XI, § 5. A
"home rule charter" "render[s] cities independent of state
legislation as to all subjects of strictly municipal concern."
State ex rel. Martin v. Cunningham, 158 Neb. 708, 710
(1954). In other words, home-rule charters can regulate
local matters even without express authority from the
Legislature. But home-rule charters are not without limits.
They are ultimately "subject to the Constitution and laws
of the State." Neb. Const. art. XI, § 5. The City of Lincoln
has adopted a home-rule charter.

### B.

The State Constitution also lays out the process to
amend a home-rule charter. Home-rule charters are
amended like any other municipal charter-according to
the procedures of Neb. Const. art. XI, § 4. See Neb. Const.
art. XI, § 5. The charter amendment process begins with a
proposed amendment made by (1) a charter convention, (2)
the municipal law-making body (i.e., city council), or (3) "by
the qualified electors in number not less than five per cent
of the next preceding gubernatorial vote in such city, by
petition filed with the council or governing authorities."
Neb. Const. art. XI, § 4; accord Lincoln Charter art. XI, § 4.
Under option (3), when a petition satisfies the 5%
signature requirement, "[t]he council or governing
authorities shall submit" such a proposal "to a vote of the

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qualified electors at the next general or special election not
held within thirty days after such petition is filed." Id.

II.

You have inquired about whether the Constitution
leaves room for the City of Lincoln to establish or
implement procedures that could keep the three subject
proposals off the November 3 ballot, assuming the
requisite signatures are obtained. You give as example a
provision of the Lincoln City Charter that requires money-
related ordinances "be fully and distinctly read on three
different days" before the City Council can pass them.
Lincoln Charter art. V, § 3; see also Neb. Rev. Stat. § 15-
404 (Reissue 2022) (same). We conclude that the
Constitution does not permit the City to cause a timely
charter-amendment petition with sufficient signatures to
be kept off the November ballot for any reason, including
the three-readings charter provision.

A petition seeking to amend a home-rule charter
must clear two obstacles to be placed on the ballot for the
next election: (1) it must obtain signatures of 5% of the
qualified voters of the previous gubernatorial vote in the
home-rule city, and (2) it must be filed before 30 days prior
to the election. If both hurdles are cleared, the Constitution
affords the City's "council or governing authorities" no
discretion: They "shall submit [the proposal] to a vote of
the qualified electors at the next general or special
election." Neb. Const. art. XI, § 4 (emphasis added).

That language leaves no room for the City to create
additional procedural hurdles. In terms of statutory
interpretation, Nebraska statute provides that "[w]hen the
word shall appears," "mandatory or ministerial action is
presumed." Neb. Rev. Stat. § 49-802 (Reissue 2021). And
the Nebraska Supreme Court has explained that "the
general rule is that in the construction of statutes, the word

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## Obligation of Home-Rule City to Submit a Proposed Charter Amendment to the Ballot

'shall' is considered mandatory and inconsistent with the
idea of discretion." State ex rel. Shepherd v. Neb. Equal
Opportunity Comm'n, 251 Neb. 517, 526 (1997). "It is
particularly so considered when the statute is addressed to
public officials." Id.

This interpretive principle also applies to the
Constitution. See, e.g., Weinberger v. Bd. of Pub.
Instruction of St. Johns Cnty., 112 So. 253, 256 (Fla. 1927)
("[T]he fact that [the Constitution] has prescribed the
manner in which the thing shall be done is itself a
prohibition against a different manner of doing it."). Thus,
Article XI, § 4's command that city officials "shall submit"
a compliant petition to a vote at the next general election
is "mandatory and inconsistent with the idea of discretion."
Shepherd, 251 Neb. at 526. The provision leaves no room
for the City to withhold or delay the proposal.

The City cannot, therefore, apply its three-readings
procedure in a manner that would keep a compliant
charter-amendment petition off the November ballot. For
one, the three-readings provision does not apply to charter
amendments, but only to "ordinances, resolutions, or
orders for the appropriation or payment of money." Lincoln
Charter art. V, § 3. But even if it did apply to charter
amendments, no municipal (or statutory) procedure can
displace the Constitution's command that the City submit
compliant charter-amendment petitions for a vote at the
next election not within 30 days after the petition is filed.

## III.

The City's status as a home-rule-charter city does
not convey any constitutional discretion to impose
additional procedural requirements that could delay the
vote of an otherwise compliant proposal. The City may
contend that its procedural requirements satisfy the

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Nebraska Supreme Court's two-part test for determining
whether a local ordinance is consistent with "the
Constitution and laws of the State." Neb. Const. art. XI,
§ 5. That two-part test asks (1) whether the ordinance is
actually "inconsistent with[] State law," and (2) whether
the ordinance regulates a "matter[] of statewide concern."
State v. Albarenga, 313 Neb. 72, 84 (2022). But that test
would not apply here.

The two-part test would not apply because the City
has no discretion to disobey a direct constitutional
command. The Nebraska Supreme Court has applied the
two-part preemption test in cases where state law and
municipal law both regulate citizens on a similar matter.
See, e.g., Albarenga, 313 Neb. at 84; Van Patten v. City of
Omaha, 167 Neb. 741, 747-48 (1959). Here, the
Constitution (not merely a statute) commands the City to
submit eligible petitions for the ballot of the next election.
So, the issue here is not whether the City can regulate
something the State has already regulated; it is whether
the City can disobey a direct constitutional command. We
find that no level of municipal concern could permit the
City to disobey the Constitution's direct command.1

1 Even if the two-part test applied, which it does not, the City
would fail to meet it. Any procedure that requires the City to
delay a petition that the Constitution requires it to submit for
the November election would be inconsistent with the
Constitution under conflict-preemption principles. See Malone v.
City of Omaha, 294 Neb. 516, 530 (2016). And if laws regulating
traffic signals, street congestion, and gambling are all matters of
statewide concern, see Albarenga, 313 Neb. at 84; Van Patten v.
City of Omaha, 167 Neb. 741, 747-48 (1959); State ex rel. Hunter
v. The Araho, 137 Neb. 389 (1940), then surely so is Nebraskans'
constitutional right to direct democracy in their municipalities.

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## Obligation of Home-Rule City to Submit a Proposed Charter Amendment to the Ballot

Finally, the Lincoln City Charter incorporates the
Constitution's requirement that the City submit a
compliant petition "to a vote of the qualified electors at the
next general or special election not held within thirty days
after such petition is filed." Lincoln Charter art. XI, § 4. So
even under municipal law, the City has no discretion keep
a timely and compliant petition off the November ballot.

In sum, the Constitution's language is clear. City
officials "shall submit" a compliant petition to a vote at the
next election outside of 30 days. It simply does not give the
City discretion to delay a petition that satisfies the
requirements of Neb. Const. art. XI, § 4.

IV.

Where petitions are submitted, and the requisite
signatures certified, in advance of 30 days before the
November general election, the City has a ministerial duty
to submit them for the ballot for such election. The City has
no discretion to implement any procedure that would delay
the proposals for a subsequent election.

MICHAEL T. HILGERS
Attorney General of Nebraska