Nebraska U.S. Senate primary loser seeks to force Dems to appoint replacement candidate after winner dropped out

The loser of Nebraska’s Democratic senate primary is seeking to force the state Democratic Party to appoint a replacement candidate after the primary winner, Cindy Burbank, dropped out earlier this month.

William Forbes, who received just over 10% of the vote in his unusual primary race against Burbank, filed a lawsuit against the Nebraska Democratic Party on July 24. Forbes, a pastor who has previously espoused anti-abortion views, was accused by Democrats of being a plant to divert votes from Burbank and benefit incumbent U.S. Sen. Pete Ricketts.

Read the complaint

Burbank had previously stated her intention to drop out of the race in an effort to drive Democratic support to independent candidate Dan Osborn, who is challenging Ricketts.

She filed the paperwork to remove her name from the November ballot on July 17, and on July 21, Secretary of State Bob Evnen accepted her withdrawal from the race.

Forbes alleges in the lawsuit that state statute requires the Nebraska Democratic Party to replace Burbank on the ballot. Nebraska law says a candidate declining the nomination “shall create a vacancy on the ballot which may be filled,” and that the “vacancy shall be filled by the majority vote of the proper committee of the same political party.”

“Construing [the statute] as mandatory makes good sense,” Forbes’ lawsuit said. “The alternative would mean that voters in a political party who previously supported a party candidate in the primary election could be functionally disenfranchised at the party’s discretion. Under Nebraska law, a political party’s choice to field candidates and invite public support comes with the responsibility to replace them if they drop out.”

Evnen appears to agree with Forbes’ argument. In a letter sent to Nebraska Democratic Party Chair Jane Kleeb on July 21 and attached as an exhibit to the lawsuit, Evnen said the party “must” designate a replacement candidate by Sept. 1.

In March, Evnen removed Burbank’s name from the primary ballot, arguing that she was not a “good faith candidate” due to her open support of Osborn. That decision was overturned by the Nebraska Supreme Court, which ruled that Evnen had not filed an objection to her candidacy within the allotted time under state statute.

Forbes is represented in the lawsuit by 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.

A hearing in front of Lancaster County District Court Judge Susan Strong is set for August 3 on Forbes’ motion for a temporary injunction to force the Nebraska Democratic Party to replace Burbank by the Sept. 1 deadline. Forbes is also seeking an order declaring that political parties must fill vacancies caused by a candidate’s withdrawal.

The issue will likely make its way to the Nebraska Supreme Court again after Strong’s ruling.

The Nebraska Democratic Party did not immediately respond to a request for comment on the lawsuit.