Nebraska Democrats vow to fight Forbes’ ‘disingenuous’ lawsuit

“He is no clear Democrat, at least no Democrat I can relate to,” McKesson said. “His sudden claim to care about Democratic voters being disenfranchised is clearly suspect considering a lawsuit of this kind could disenfranchise the very coalition that rejected Mr. Forbes.” 

The party leaders also pointed to him being represented by the same attorneys involved in the March lawsuit defending Nebraska Secretary of State Bob Evnen’s decision to remove Burbank from the primary ballot. The Nebraska Republican Party released a statement saying the party has no affiliation with Forbes, “but it is his right to seek justice where he sees wrongdoing.” 

“This lawsuit says everything about Jane Kleeb’s leadership: a Democrat having to sue Democrats just to have a Democrat on the ballot,” part of the statement says. 

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This is just the latest drama in the Nebraska U.S. Senate race, primarily in the Democratic primary. There were allegations that each candidate was a “plant” to help either incumbent Ricketts or nonpartisan U.S. Senate candidate Dan Osborn. Both Ricketts and Osborn have denied any involvement with Forbes and Burbank. 

Forbes’ voting history and attendance at a conservative training session were reported by CNN during the primary. Nebraska Republican Party Chair Mary Jane Truemper, who declined to comment for the CNN story, told the Examiner earlier in the year that the party didn’t know Forbes, hasn’t had any relationship with him and has no knowledge of his motivations for entering the Democratic primary. 

Kleeb said the state Democratic Party has been transparent about its plans to not actively recruit a Senate candidate, as Osborn is the “best path to defeat Pete Ricketts.”

“We believe that a strong coalition of voters, Democrats, independents and Republicans, are the best way to defeat Pete Ricketts and to end the corrupt Republican one-party rule across our state,” Kleeb said.

It wasn’t a secret that state Democrats were planning to clear the candidate field for Osborn, as the political strategy has been reported by the Examiner and multiple national outlets throughout this midterm cycle. 

In his lawsuit, Forbes is asking the court to grant an injunction requiring the party to find a replacement for Burbank, citing a state law that uses the word “shall” when addressing a vacancy.  He argues in the lawsuit that the word “shall” in the law means it must be done instead of an opinion to do so. Forbes argued that voters will be “disenfranchised.”

Brandon J. Johnson, an assistant professor at the University of Nebraska-Lincoln College of Law who focuses on election law, said he can’t predict how a judge would rule, but it seems like the lawsuit doesn’t have a “terribly strong legal position.” 

“The argument is the provision that governs how to fill a vacancy uses mandatory language. …If this vacancy occurs, the party shall do X, Y, and Z,” Johnson said. “It’s hard to square that though with the statute that actually discusses the declination of nomination form.” 

The statute about declining the nomination said a vacancy caused by the candidate refusing the nomination “may be filled pursuant to section 32-627.” Johnson said the law cited in the lawsuit addresses the process that must be followed if a party chooses to replace a nominee. 

McKesson said the party is willing to take the case to the state Supreme Court if the ruling doesn’t go their way at the district level. 

This issue isn’t just a Nebraska one. Recently in Montana, the Secretary of State’s office told the national outlet Semafor that the Montana Democratic Party would be required to find a replacement if Democratic Senate candidate Alani Bankhead drops out — though she has said she doesn’t plan to drop out and a group of lawyers says the party couldn’t be forced to find a replacement. 

A hearing for the Nebraska case has been rescheduled for next week.

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