222268P.pdf   08/31/2022  Crista Eggers  v.  Robert Evnen
   U.S. Court of Appeals Case No:  22-2268
   U.S. District Court for the District of Nebraska - Lincoln   
   [PUBLISHED] [Gruender, Author, with Kelly and Stras, Circuit Judges] 
   Civil case - Elections. Plaintiffs sued the Nebraska Secretary of State, 
   alleging a provision of the Nebraska constitution that establishes a 
   signature requirement for ballot initiatives violates the Equal Protection 
   Clause, and the district court entered a preliminary injunction barring 
   the Secretary from enforcing the provision. The provision in question 
   states that in order for a initiative to be placed on the ballot, the 
   signatories must "be so distributed as to include five percent of the 
   registered voters of each of the two-fifths of the counties of the state." 
   Plaintiffs' claim that the provisions restricts a fundamental right is 
   foreclosed by circuit precedent as this court has held that no right can 
   qualify as fundamental for purposes of equal-protection analysis unless it 
   is guaranteed by the U.S. Constitution, and the right to place initiatives 
   on a state ballot is not a right created by the U.S. Constitution, but is 
   a right created by state law; plaintiffs must therefore prove that the the 
   provision cannot survive even a rational-basis scrutiny, and they have not 
   show they have even a "fair chance" of carrying that burden; as such, they 
   have not shown a likelihood of success on the merits; the other Dataphase 
   factors also weigh in defendant's favor, and the injunction is vacated. 
   Judge Kelly, dissenting.