Nebraska Democratic Party Chair Jane Kleeb responded Wednesday to what she called a "frivolous" lawsuit from former Democratic U.S. Senate candidate William Forbes who lost the May primary. He filed a lawsuit earlier this month seeking to force the party to name a replacement for Cindy Burbank, the Democratic U.S. Senate candidate who won the primary but then dropped out.
William Forbes asserts that the Nebraska Democratic Party must appoint a replacement.
His argument hinges on two statutes: one that allows a vacancy to be created when a candidate declines a nomination, and another that governs how that vacancy gets filled. While the first uses permissive language — the vacancy "may be filled" — the second uses the word "shall," which Forbes contends makes replacement mandatory rather than optional. Secretary of State Bob Evnen has told the party it 'must' file a replacement by Sept. 1, a position that aligns with Forbes' legal argument.
Whether the "shall" language makes replacement mandatory once a vacancy exists, or whether it only applies once a party has already decided to name one, is a question no Nebraska court has ruled on.
Kleeb said Wednesday that the Nebraska Democratic Party will not back down on the legal question. When asked directly about the "may" versus "shall" language in the two statutes, Kleeb pointed to the structure of the two statutes in the party's defense.
"Their lawsuit really jumps to the second section. You have to get to that second section first to get to the 'shall,' which will of course be something that our lawyers are focusing on in the courtroom," she said.
Nebraska Democratic Party Executive Director Precious McKesson echoed the message, saying the party is prepared to fight the case as far as it needs to go.
"We're willing to take [this] as far as it goes, because we know what we've done is right, and we're going to fight for Nebraskans and make sure that we elect Dan Osborn on Nov. 3," McKesson said.
This isn't the first legal battle in Nebraska's U.S. Senate race this year. Secretary of State Bob Evnen removed Burbank from the primary ballot in March, but was ultimately forced to reinstate her after she sued and the Nebraska Supreme Court ruled in her favor later that month.
A hearing on Forbes' request for a temporary injunction is scheduled for Aug. 3 before Lancaster County District Court Judge Susan Strong.
Nebraska GOP response
Forbes is being represented by attorney Brenna Grasz who represented the Nebraska Republican Party in its efforts to remove Burbank from the primary ballot, and attorneys from Lex Politica, a conservative law firm based in D.C.
But in a statement to Nebraska Public Media News, the Nebraska Republican Party disputed claims of any affiliation to Forbes. The party said he had a "right to seek justice where he sees wrongdoing." Spokesperson Haile McAnally tied the lawsuit to Kleeb's leadership.
"This lawsuit says everything about Jane Kleeb's leadership: a Democrat having to sue Democrats just to have a Democrat on the ballot," McAnally said. "She's even admitted to the New York Times that the Democrat brand is toxic here. Democrat voters should be asking why their own chair won't trust them with a real nominee. Republicans are proud to stand behind our nominee, Pete Ricketts."
McAnally referenced a May New York Times profile on the race. In it, Kleeb told the Times that Democratic leaders had grown "out of touch with some of the issues that voters in the Midwest care about," and that the alliance with independent voters was "the only viable path for us right now for a federal race."
The word "toxic" describing the Democratic brand appeared in the reporter's own framing of the broader regional trend, not as a direct quote from Kleeb. But when asked about those earlier comments at Wednesday's press conference, she stood by them.
"I stand by those words in the New York Times. I don't run away from those comments. It's why we have instituted programs. It's why we have two fulltime rural organizers. It's why we're hiring Latino organizers to work in rural communities," she said. "Just because we have a problem doesn't mean we're also not addressing it. That's the problem with the Republican Party. They have lots of problems, but they don't address them.”
The GOP statement went on to frame independent Dan Osborn as Kleeb’s preferred choice in the race.
"Cindy Burbank won the primary, then conveniently dropped out. That cleared the field for Kleeb's preferred 'independent,' Dan Osborn, against Pete Ricketts. Instead of naming a real replacement, Kleeb is fighting in court to avoid it," the statement read.