Lawyers debate secretary of state’s authority to reject new Nebraska political parties to prevent ‘voter confusion’

Secretary of State Bob Evnen's authority to reject a new political party if he finds it was intentionally named to create "voter confusion" is at the heart of a lawsuit filed by the Nebraska Republican Party.

The lawsuit was filed after Evnen found that he did not have authority to reject the newly formed America First Party, which the Nebraska Republican Party alleges was deceptively named “for the purpose of confusing Nebraska voters and dividing the votes that would otherwise go to Republican candidates.”

Though Evnen said the Republican Party’s objection to the America First name was “persuasive,” he found that he lacked statutory authority to reject it. If a court deemed that he had a broader authority to reject party names for the purpose of preventing voter confusion, he said, he would not allow the America First Party on the ballot.

Lancaster County District Court Judge Darla Ideus previously granted an injunction to prevent Evnen from certifying the America First Party until further ruling. Andrew La Grone, attorney for the Republican Party, is asking Ideus to find that Evnen has the broader authority to “prevent intentional voter confusion through deceptive party names.” The America First Party and its sponsor John Cartier argue that broad power is not granted to Evnen under statute and would have to be delegated to him by the Legislature.

At a Monday hearing fashioned as a limited trial, La Grone presented evidence largely centered around the political persuasions of Cartier. The Republican Party has referred to Cartier as a “known leftist operative.”

La Grone brought up Cartier’s history of political activism and submitted multiple social media posts from Cartier as evidence. Cartier, an attorney, is the attorney general for the Omaha Tribe of Nebraska. He previously worked in a voting rights role at Civic Nebraska and as an attorney for For Our Future Action Fund, a national progressive, pro-labor voter outreach organization.

“The issue is not whether Mr. Cartier is allowed to hold these views at all,” La Grone said. “He absolutely has a right to hold those views. The issue is whether the sponsor, with a documented political background like that, may place on Nebraska’s ballot a party name that voters generally and popularly associated with President Trump and The Republican Party, while describing the party in conservative language.”

The Nebraska Republican Party does not want Ideus to rule on the underlying factual questions of Cartier’s motivations or whether or not the America First Party name causes voter confusion. Instead, it asked the court to find that Evnen has broad authority, and leave the decision of whether or not the name causes voter confusion to him.

Jason Grams, attorney for Cartier and the America First Party, rejected the characterization of Cartier as a “leftist operative.” He said Cartier previously worked for and voted for Republican candidates, and mentioned a photo of Cartier shooting a submachine gun at the FBI firing range.

Grams also challenged the Republican Party’s broader argument about Evnen’s authority to reject a party name.

“Nebraska election laws do not authorize the secretary unbridled discretion to engage in a free-wheeling review of the motives of political party sponsors and petition signers under the subjective banner of ‘confusion,’” Grams said. “Even if the statutes did create such discretion – and they do not – it would be unconstitutional under the First Amendment… Because the authority to regulate the time, place, and manner of elections rests with the Nebraska Legislature, not the executive or judicial branches. And the Legislature has not granted such power to the Secretary.”

Grams requested that the temporary injunction be dissolved so that the new party can complete procedural steps to field candidates for the November ballot. The party must submit a party constitution and bylaws by Aug. 27, and has until Sept. 1 to submit a candidate filing form.

Ideus previously said she would issue a ruling in the case by Thursday, when the injunction is set to expire. Attorneys for both Evnen and the America First Party said that a final ruling – including any appellate review – must be made by Aug. 26 so that the party has time to file paperwork and field candidates.

A ruling is also expected by Thursday in a similar case brought by the Nebraska Democratic Party against Evnen in an attempt to prevent him from certifying the Working People Party. Like the Republican Party's lawsuit, Democrats allege that the new Working People Party is a "Republican sock puppet party" meant to confuse voters. In that case, though, both Evnen and the Working People Party argue that the Democratic Party did not meet a statutory deadline to file an objection to party names, making the objection invalid.