Arguing that Nebraska Democrats must have a Senate candidate, primary loser says he’s willing

Attorneys for William Forbes, who overwhelmingly lost the Democratic Senate primary race, argued at a Monday hearing that the Nebraska Democratic Party must field a replacement candidate for the general election after the winner dropped out of the race.

Despite receiving just over 10% of the primary vote, Forbes also expressed a “willingness to be considered” as the Democrats’ replacement candidate.

The hearing is the latest chapter in an unusual and litigious Democratic primary race. Forbes is an anti-abortion pastor accused by Democrats of being a “plant” candidate to aid incumbent U.S. Sen. Pete Ricketts. Forbes’ opponent, Cindy Burbank, was open about her intention to drop out after the primary to steer Democratic support to independent candidate Dan Osborn. She did so last month.

Forbes is seeking a temporary injunction to force the Nebraska Democratic Party to nominate a replacement candidate for Burbank. After hearing arguments Monday, Lancaster County District Court Judge Susan Strong took the issue under advisement and said she would issue a decision “as soon as I can.”

At issue are two Nebraska statutes: One that says a candidate declining the nomination “shall create a vacancy on the ballot which may be filled,” and another that says the “vacancy shall be filled by the majority vote of the proper committee of the same political party.”

The Nebraska Democratic Party says those statutes are a two-step process: The party may fill the vacancy, and the party shall follow the outlined procedure if it decides to do so. Attorneys for Forbes argued that the statutes make filling the vacancy mandatory.

Daniel Gutman, an attorney representing the Democratic party, also said there are a number of “procedural deficiencies” that should result in the motion for temporary injunction being denied before reaching the merits. He argued that Forbes does not have standing to bring the lawsuit and faces no “concrete injury” by the party not replacing Burbank.

“Forbes talks very generally about the right to vote, but that generalized right does not at all confer standing on him to do something totally different – which is to force a political party to engage in conduct that it doesn't intend to do against its will,” Gutman said.

One of Forbes’ attorneys, Erin Hawley of conservative D.C.-based law firm Lex Politica, said Forbes will suffer an injury if he isn’t able to “consider supporting the nominee for the Democratic Party,” which gives him standing to sue.

In an affidavit filed during the hearing on Monday, Forbes also said that he would be “willing to be considered by the Nebraska Democratic Party as its replacement nominee.”

“Of course, he doesn't have that right,” Gutman said. “The voters have already rejected him.”

After the affidavit was filed, Strong questioned whether the lawsuit was a "workaround" for Nebraska laws that prevent losers in a primary race from mounting an independent or write-in challenge in the general election. Hawley said state statute would not prevent the party from replacing the withdrawn candidate with the runner-up.

Strong took the issue under advisement and said she would make a written decision “as quickly as possible.” To grant the temporary injunction, Strong would have to find that Forbes’ lawsuit has a likelihood of success on the merits. But if she finds that Forbes does not have standing to bring the lawsuit, or that a temporary injunction is not an appropriate remedy, Strong may not reach the merits of his argument.

In any case, her decision is likely to be appealed to the Nebraska Supreme Court.