Judge says effort to force Nebraska Dems to replace vacancy on ballot unlikely to succeed

An effort to force the Nebraska Democratic Party to put up a Senate candidate is unlikely to succeed and raises “serious constitutional concerns,” a Lancaster County judge ruled Friday.

Lancaster County District Court Judge Susan Strong denied a motion for a temporary injunction filed by William Forbes, who received just over 10% of the vote in his primary race against Cindy Burbank. Forbes sought an injunction to force the party to replace Burbank on the November ballot after she dropped out last month.

Burbank was open during her primary campaign about her intention to drop out. The Nebraska Democratic Party does not intend to put up a Democratic candidate in the race between incumbent Republican Sen. Pete Ricketts and independent candidate Dan Osborn.

Forbes sued the Nebraska Democratic Party last month, alleging that state law requires the party to fill the vacancy. For Forbes to succeed on his motion for a temporary injunction, he would have had to prove that he had a likelihood of success on the merits of the case. Strong found that he had not shown a likelihood to succeed.

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 argued that 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. In her eight-page ruling, Strong appeared to agree, at least preliminarily, with the party’s interpretation of the laws.

“The Legislature used the word ‘may,’ which the court cannot ignore or reject as meaningless,” Strong wrote.

Read Strong's ruling

Strong also said that Forbes’ interpretation of the law would raise “serious constitutional concerns” under the First Amendment, which limits the ability of states to regulate the internal process of political parties.

His interpretation “would not merely regulate the candidate-selection process,” Strong wrote. “It would force a political party to field a candidate for a general election against that party’s will. The court considers that a significant burden on a party.”

Before Strong’s ruling was issued on Friday morning, attorneys for Forbes filed a motion for an expedited case progression order and requested oral arguments to be set for the week of Aug. 24. In a reply brief, the Nebraska Democratic Party said it isn’t opposed to an expedited schedule, but said a number of factual disputes remain that the party would like to address.

The party requested that Strong next address the issue of whether or not Forbes had standing to sue. She chose not to rule on standing in her Friday order, instead deciding to “wait for more thorough briefing from the parties.”

Later on Friday, Strong issued an expedited progression order for the case to move forward. Dispositive motions -- motions that would end the case before a trial, like a motion to dismiss or for summary judgement -- are due by Aug. 17. A statement of disputed facts is due by Aug. 21. Oral arguments are set for Aug. 24.