Forbes Lawsuit: Nebraska Democrats Must Fill Nebraska Senate Vacancy

• William Forbes is suing the Nebraska Democratic Party to force them to nominate a U.S. Senate candidate replacement.
• The lawsuit follows primary winner Cindy Burbank's withdrawal, which Forbes claims was a strategic move to benefit independent candidate Dan Osborn.
• Democrats argue state law grants them discretion ("may be filled") rather than a mandate ("shall be filled") to fill the ballot vacancy.
• Forbes faces accusations of being a "stalking horse" candidate, potentially linked to Republican Senator Pete Ricketts' campaign.
• A Lancaster District Court judge has not yet ruled but previously denied Forbes' request for an injunction, citing constitutional concerns.

At the heart of the Lancaster District Court election case lies a dispute over the interpretation of Nebraska election law vacancy statutes.

A legal battle is unfolding in Nebraska over a vacant U.S. Senate ballot spot, initiated by a former primary candidate, William Forbes. Forbes has filed a lawsuit in Lancaster District Court, seeking to compel the Nebraska Democratic Party to nominate a replacement for Cindy Burbank, who withdrew from the race after securing the party's nomination. Burbank won the Democratic primary for Nebraska's U.S. Senate seat in May but subsequently dropped out in July.

Forbes, who garnered only 10% of the vote in the primary against Burbank, alleges that her withdrawal was a calculated maneuver by Nebraska Democrats. He claims this strategy aims to channel support toward independent candidate Dan Osborn in the upcoming general election. The Nebraska Democratic Central Committee recently voted against filling the vacancy created by Burbank's departure, a decision that occurred amidst some internal party discussion. Forbes is now asking Judge Susan Strong to intervene and mandate a new Democratic nominee to face Osborn in November.

At the heart of the Lancaster District Court election case lies a dispute over the interpretation of Nebraska election law vacancy statutes. William Forbes' legal team contends that state law mandates the filling of such vacancies. They cite a specific statute stating that if a vacancy arises for a partisan office, "the vacancy shall be filled by the majority vote of the proper committee of the same political party." This language, Forbes' attorney John Ehrett of Lex Politca argued, implies an obligation, not an option.

Conversely, attorneys representing the Nebraska Democrats, led by David Fox of Elias Law Group, assert that Forbes is misinterpreting the legislation. They argue that the cited section merely outlines the *method* for filling a vacancy *if* the party chooses to do so. The Democrats point to a different statute concerning candidate withdrawals, which states that such a vacancy "may be filled." Fox emphasized that the term "may" is widely understood to grant discretion, thereby allowing the party to decide whether or not to nominate a replacement. He suggested Forbes' argument lacked a coherent explanation for this statutory distinction, highlighting the critical difference between "may" and "shall" in Nebraska election law vacancy provisions. This legal nuance underscores the broader issue of party discretion ballot vacancy in the state's electoral process.

Beyond the statutory debate, the William Forbes vs Nebraska Democrats lawsuit delves into accusations of political strategy and potential voter confusion. Forbes' legal team argues that the state Democratic Party is implicitly supporting independent candidate Dan Osborn without explicitly endorsing him, thereby confusing voters. John Ehrett stated that the party's overall interest, not just the leadership's strategic preferences, should be considered, asserting that "voter confusing stands at the heart of this strategy" and that there is no First Amendment right to arrange a ballot in a particular way.

Adding complexity to the case, Forbes himself has faced allegations of being a "stalking horse" candidate. His history of conservative activism has led Democrats to suggest he might be a plant from the campaign of incumbent Republican U.S. Senator Pete Ricketts. Both Forbes' attorneys and Nebraska Solicitor General Cody Barnett countered this, arguing that if Democrats believed Forbes was not a legitimate candidate, they should have filed an objection. However, the Democrats responded that they did not consider Forbes' candidacy unlawful, merely undesirable, and that his entry into the primary forced them to field another candidate. They further contend that compelling them to nominate a Nebraska Senate candidate replacement at this late stage would force them to support someone they do not wish to, which would also be "unbelievably confusing to voters."

Judge Susan Strong previously denied Forbes' request for a temporary injunction, indicating that his efforts were unlikely to succeed due to constitutional issues. The judge did not issue a final ruling on Monday but indicated a decision would be made soon, ahead of the September 11 deadline for Nebraska Secretary of State Robert Evnen.

This case provides critical insight into the interpretation of Nebraska election statutes regarding political party obligations and discretion in filling ballot vacancies, particularly when strategic political maneuvering is alleged. Lawyers advising political parties or candidates in Nebraska should monitor the ruling for clarity on statutory 'may' vs. 'shall' language concerning candidate replacement.

Source: Original reporting via Courthouse News