Judge’s ruling in lawsuit over ballot vacancy sets up two-way Senate race between Osborn, Ricketts

A Lancaster County judge ruled Wednesday that the Nebraska Democratic Party does not have to fill a vacancy on the Senate ballot, setting up a two-way race between Republican Sen. Pete Ricketts and independent candidate Dan Osborn.

William Forbes, who received just over 10% of the vote in his primary race against Cindy Burbank, sued the Democratic Party over its decision not to fill the vacancy left by Burbank dropping out of the race last month. Burbank was vocal about her intention to drop out of the general race if she won the primary, and the Nebraska Democratic Party’s governing committee officially voted Sunday to forgo filling the vacancy.

With Legal Marijuana Now Senate candidate Mike Marvin suspending his campaign last week and endorsing Osborn, a head-to-head race between Osborn and Ricketts is increasingly likely – though Marvin’s name will still appear on the ballot since he missed the deadline to remove it.

Lancaster County District Judge Susan Strong granted the Democratic Party’s motion for summary judgment on Wednesday. She dismissed Forbes’ lawsuit with prejudice, meaning it cannot be filed again.

Forbes could appeal the decision to the Nebraska Supreme Court, but the statutory deadline for the party to fill a vacancy is Sept. 1.

Attorneys for Forbes argued that state law requires the party to fill the vacancy, and leaving it empty deprives him and other voters of the opportunity to consider a Democratic candidate. In her Wednesday ruling, Strong said she had “serious doubts” that Forbes’ inability to consider voting for a Democrat gives him standing to sue. But given the impending Sept. 1 deadline, she did not rule on standing and instead considered the merits of his argument.

At issue in the case were two state 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.”

While Forbes contended that filling the vacancy was mandatory, the Democratic Party said the language is discretionary: The party may fill a vacancy, and shall follow a particular process to do so.

Strong agreed with the Democratic Party’s interpretation, finding that a “political party has discretion to fill a vacancy after a candidate declines their nomination.”

The Democratic Party further alleged that forcing a party to fill a vacancy against its will would be unconstitutional under the First Amendment. Nebraska Attorney General Mike Hilgers appeared in the case earlier this week and argued that it would be constitutional to force the party to fill a vacancy, though he took no position on whether Forbes’ interpretation was correct.

Because Strong found that Forbes’ interpretation of statute was wrong, she did not address the constitutional issues.

In a statement, the Nebraska Democratic Party reiterated its support for Osborn and said not filling the vacancy was a “deliberate decision made through the Party’s democratic process and in accordance with Nebraska law.”