Ten states will have measures seeking to expand or restrict access to abortion on their ballots in November. For most states, the proposals simply require that the initiatives reach a certain threshold of support to pass. In Nebraska, though, it will be a little more complicated, as voters could approve two competing ballot initiatives on the matter. 

Nebraska’s supreme court ruled that Initiative 439, which would enshrine abortion access up to viability, can be on the ballot along with Initiative 434, a measure that would prohibit abortion after the first trimester. 

The dueling ballot initiatives could set up the first-ever test of a 1912 law that established the rules for competing ballot measures. A ballot measure needs to receive more “yes” votes than “no” votes and receive at least 35 percent of the total votes cast in the election to pass, according to the Nebraska secretary of state’s office. 

Due to that law, voters in the Cornhusker State could hypothetically approve both measures, but only one would be added to the state’s constitution. 

A recent poll from Emerson College shows there is a chance both measures could be approved on Election Day. According to the survey, 44.2 percent of respondents said they would vote “yes,” while 40.3 percent said they would vote “no” on Initiative 439, and 15.5 percent were undecided.

Meanwhile, 46.1 percent said they would vote “yes” on Initiative 434, 40.5 said they would vote “no,” and 13.3 percent were undecided.

If those numbers hold and both initiatives receive at least 35 percent of the total votes cast in the election, then both measures would technically be approved. The one that gets the most votes will be added to the state’s constitution because they are in conflict.

If they are tied, the governor will decide which one wins. If either amendment fails to receive at least 35 percent of the total votes cast, it will not be approved even if it gets more “yes” votes. 

Based on the Emerson poll, it appears the amendment prohibiting abortion after the first trimester has a slight advantage.

The two ballot initiatives have led to some concerns that voters may be confused or mistakenly vote the opposite way than they intended. The executive director of Nebraska Abortion Resources, Shelley Mann, told Vox, “We hear all the time how confusing the two measures are, and folks are very afraid of accidentally checking the wrong one.”

Supporters of both measures have accused proponents of the opposing initiatives of trying to deceive voters ahead of the election.

In an ad urging Nebraska voters to reject Initiative 439, a neonatal pediatrician who opposes abortion access said that measure would let “government officials interfere in medical decisions and takes care out of the hands of licensed physicians, when women in crisis need them most.” 

The language in the ad mirrors that of defenders of abortion access.

Meanwhile, supporters of Initiative 434 have said having two measures on the ballot will be confusing. A senior counsel for the Thomas Moore Society, Mark Heffron, called the measure that would enshrine abortion access an “intentionally deceptive initiative” after the state’s supreme court allowed it to be on the ballot. 

If Nebraska voters reject Initiative 439, the state could be one of the first to reject a constitutional amendment protecting abortion access since Roe v. Wade was overturned.

Since 2022, six states have considered such measures. California, Michigan, Ohio, and Vermont approved ballot measures that protect abortion access, while Kentucky and Kansas rejected measures that would have limited abortion rights. 

Florida also appears poised to reject a measure that would overturn its six-week abortion ban, as multiple polls have found that ballot measure failing to reach the 60 percent threshold needed to pass.