Nebraska's unprecedented ballot battle on abortion raises concerns about voter confusion

LINCOLN — With abortion rights a key issue on the ballots of multiple states this year, Nebraska stands unique as the only one to have two initiatives actively competing against each other.

Nebraskans will vote on two ballot measures that seek to alter abortion access. One looks to solidify the state's existing 12-week ban into the Nebraska Constitution, while the other looks to expand access up to "fetal viability." Each has raised millions of dollars to spread its message.

The two initiatives not only share similarities in their subject matter, they also have similar campaign names and similar numbers listed on the ballot — and they occasionally overlap in their messaging to voters. Both claim their opponents are being purposefully deceptive, and political analysts say there is a very real threat of voter confusion that could affect the final result.

Initiative 434, known as the Protect Women and Children campaign, would amend the Nebraska Constitution to ban most abortions after the first trimester but also leave room for lawmakers to increase restrictions in the future.

Initiative 439, known as the Protect Our Rights campaign, would amend the state's constitution to establish the right to an abortion up until "fetal viability," which is generally considered to be 23 to 24 weeks of pregnancy.

Here is the language Initiative 434 asks voters to approve:

"Article I of the Nebraska Constitution shall be amended by adding a new section 31 that states as follows: 'Except when a woman seeks an abortion necessitated by a medical emergency or when the pregnancy results from sexual assault or incest, unborn children shall be protected from abortion in the second and third trimesters.'"

Here is the language Initiative 439 asks voters to approve:

"Article I of the Nebraska Constitution shall be amended by adding a new section 31 that states as shown: 'All persons shall have a fundamental right to abortion until fetal viability, or when needed to protect the life or health of the pregnant patient, without interference from the state or its political subdivisions. Fetal viability means the point in the pregnancy when, in the professional judgment of the patient's treating health care practitioner, there is a significant likelihood of the fetus' sustained survival outside of the uterus without the application of extraordinary medial measures.'"

In order to pass, each initiative needs to receive more "yes" votes than "no" votes. If both succeed, the initiative with the highest number of "yes" votes will makes it into the state constitution, said Jackie Ourada with the Secretary of State's Office.

Recent polling from Emerson College and Midwest Newsroom show the initiatives in a dead heat. Out of 1,000 registered Nebraska voters surveyed, 46% said they supported the intent of Initiative 434, and 41% opposed it, with 13% unsure. On Initiative 439, 44% of surveyed voters were supportive, with 40% opposed and 16% unsure. The poll was conducted from Sept. 26 to Oct. 2 and had a margin of sampling error of plus or minus 3 percentage points.

Vote 'yes' but also vote 'no'

Officials from each campaign say they are focused on encouraging voters to vote "yes" on their initiative, and to vote "no" on their opponent's measure. Signage associated with each campaign supports this, and four video advertisements released by Protect Our Rights explains the two votes they want Nebraskans to take on the initiatives.

"We really care deeply about both," said Andi Curry Grubb, executive director of Planned Parenthood Advocates of Nebraska, and a member of the Protect Our Rights campaign.

The Protect Women and Children campaign has released two video ads so far, which each urging voters solely to vote against Initiative 439 and making no mention of Initiative 434. The ads have similar messages, featuring doctors Alicia Mizner and Catherine Brooks. Brooks brought a lawsuit seeking to remove Initiative 439 from the ballot, which was subsequently rejected by the Nebraska Supreme Court.

Both Mizner and Brooks argue in their ads that the Protect Our Rights Initiative would allow government to interfere with medical decisions best left between patients and their doctors. It's an argument that is most often heard in opposition to increasing abortion restrictions, and it's also used in Protect Our Rights' ads.

At a Tuesday public hearing on Initiative 434, Brooks further argued that Initiative 439 would bring government interference due to its inclusion of "fetal viability" as the measurement for when an abortion would be allowed. She claimed the term is too vague and is not recognized in the medical field, though doctors who support the Protect Our Rights campaign dispute this.

Curry Grubb said the Protect Women and Children ads are "complete lies." She said she suspects the primary goal of the opposing campaign is not to pass Initiative 434, but to prevent Initiative 439 from passing, and she believes it is intentionally trying to confuse voters to do it.

"Confusion is the name of the game," she said of the Protect Women and Children campaign.

To combat this strategy, Curry Grubb said Protect Our Rights members are taking steps to educate voters about what each initiative would do, and noting that anti-abortion lawmakers in Nebraska, including Gov. Jim Pillen, have said they hope to eventually pass a full ban in the state. She said the campaign has canvassers working every day, knocking on doors and making phone calls, and it is also spreading the message online.

Protect Women and Children officials said they are also working to educate voters about the ballot initiatives but did not give specifics on how the campaign is doing so. Protect Our Rights' campaign manager Allie Berry said they have heard the opposing campaign is organizing in churches. Protect Women and Children officials did not confirm nor deny this when asked if they were working with faith organizations.

"Regardless of religious background, Nebraskans care about having safeguards in place to keep women safe," the campaign said in a written response.

On the front page of lobbying group The Nebraska Catholic Conference's website is a message to oppose Initiative 439, calling it "unsafe, unregulated, and un-Nebraskan." That message is directly followed by another urging support for Initiative 434, which they refer to as "an alternative pro-life ballot initiative."

But Protect Women and Children "does not have the monopoly on churches," Berry said. Last week, over a dozen local faith leaders gathered in Omaha to share their support for Initiative 439 and opposition to 434. Several said the Protect Our Rights initiative more closely aligns with their religious beliefs.

"I abhor the lies and confusion created by right-wing conservatives and their sin of using the Christian voice to harm vulnerable folks seeking health care," said Omaha pastor Debra McKnight.

Though it wasn't an official campaign event for Protect Our Rights, it was referenced at a press event for the campaign several days later.

Randall Adkins, political science professor at the University of Nebraska at Omaha, said he suspects both campaigns are looking to target people who already strongly agree with their messages, who can then spread information to other voters. When it comes to churches, he said Protect Women and Children probably has the advantage, as progressive views among religious groups in Nebraska are a minority.

Both campaigns are highly funded and have remained fairly evenly matched through the latest round of campaign finance reports. Protect Women and Children has raised over $7.1 million so far, mostly from two notable GOP donors. The Ricketts family contributed more than $5.1 million, and the Peed family donated $1.5 million.

The campaign had spent just under $1 million of that, as of the start of October. The largest portion of spending, $671,000, was for a media purchase.

Protect Our Rights' overall contributions come in closely behind its competitor at over $6.7 million. Its largest donor is the New Venture Fund, a nonprofit based in Washington, D.C., that supports efforts to advance equity, diversity and transformative change. It donated $1 million to the campaign this month.

So far, the campaign has spent over $1.4 million of its funds on various expenses, including canvassing, digital programming and polling.

Adkins said he expects the campaigns to spend much of their remaining funds on mail advertisements in the final stretch before Election Day. Mail ads are more effective closer to the end of election cycles, he said, because the information is fresher in voters' minds. It's also easier to target specific demographics with them.

With highly contentious issues and candidates up and down the ballot, Adkins called abortion rights an "undercurrent" that will likely drive voter turnout in an election for which he already expects high turnout. Though which side will benefit from that turnout, he said, is difficult to say.

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