Ruling likely to come next week in two cases challenging validity of new political parties

In back-to-back hearings on Wednesday, a Lincoln judge heard more than an hour of arguments in two cases that could decide which candidates end up on the November ballot.

The hearings in front of Lancaster County District Court Judge Darla Ideus were regarding two challenges to newly formed political parties: The Nebraska Democratic Party is challenging the Working People Party, and the Nebraska Republican Party is challenging the America First Party. Both major parties sued Secretary of State Bob Evnen in an attempt to force him to reject the new parties.

Evnen announced last week that both new parties secured enough signatures from registered voters for them to place candidates on the November ballot. Republican and Democratic officials have claimed that both parties intended to mislead and confuse voters.

Though the cases are similar and the hearings took place in tandem, they address different legal issues.

The lawsuit brought by the Nebraska Democratic Party is joined by the Working Families Party, a New York-based progressive party that operates nationwide but does not have ballot access in Nebraska. The parties claim that the Working People Party name runs afoul of a Nebraska law that prohibits new political parties from using any word from an existing party in its name. Evnen said in response that the objections to the name were filed too late.

The Republican Party’s challenge against the America First Party is more concerned with the ideology evoked by the term “America first.” It’s lawsuit argues that Evnen has broad authority to reject a new political party if he finds that it was formed to intentionally confuse or mislead voters.

Ideus ordered additional briefing on multiple issues and set an evidentiary hearing in both cases for Monday. Evnen asked her to make a decision by Aug. 20, which she appeared inclined to do.

“I agree that this does need to be expedited and decided as soon as possible,” Ideus said on Wednesday.

Republican challenge

The America First Party is led by John Cartier, the attorney general of the Omaha Tribe of Nebraska whom the Republican party describes as a “known leftist operative.” Filings for the formation of the party say it stands for “cracking down on out-of-control government spending and wasteful foreign aid, getting tough on illegal immigrants, standing up against abortion, and rigidly defending the Second Amendment.”

In court and in legal briefs, the Nebraska Republican Party argued that Evnen has the authority to reject the America First Party – not because the name is in use by another party, but because it is a “calculated effort to maliciously confuse voters by hijacking a nationally recognized brand inextricably linked to President Donald J. Trump and the conservative movement he leads.”

Evnen ultimately decided that he did not have authority to reject the America First Party under state statute but said he would reject the party for causing voter confusion if allowed to do so by the court.

Andrew La Grone, arguing for the Nebraska Republican Party, said Evnen had interpreted his authority too narrowly.

“He has broader authority to look into the overall circumstances surrounding the choice of a party name and rule on a challenge to that,” La Grone said.

Much of the argument in this case centers around a Nebraska Supreme Court decision from 1900 called Porter v. Flick. In that case, the court gave the Secretary of State some authority to reject a newly formed “Populist Party,” which was the name by which the existing People’s Independent Party was “generally and popularly known.”

La Grone said this case proves that the secretary has a “necessary authority outside of the explicit statutory language to do what was necessary to prevent voter confusion.” But Jason Grams, an attorney representing Cartier and the America First Party, said that decision still had to do with the names of the parties, while the Republican party’s challenge to the America First Party hinges on ideology.

“I think a simple review of Porter shows it does not grant a free-roaming license to the secretary to police his subjective view of what might be confusion,” Grams said.

Grams also said rejecting the America First Party on ideological grounds could violate the First Amendment. La Grone requested time to submit a written brief on the constitutional issue, which will be due on Friday.

Democratic challenge

The Working People Party is led by Robin Richards, described by Democrats as “a sore loser former candidate who has serially sought and failed to obtain the NDP’s nomination for the state legislature.” In filings with the Secretary of State’s Office, the party says it is focused on “practical solutions to improve economic opportunity, strengthen communities, and promote responsive and accountable government.”

Christopher Dodge, an attorney for the Nebraska Democratic Party and the Working Families Party, said having a party with such a similar name could “dilute the credibility and influence of their name with voters.” He also argued that the name of the party is meant to draw a connection with independent Senate candidate Dan Osborn.

“I think the name of the party here is geared to try and mislead voters into thinking its candidates, the [Working People Party] candidates, are bona fide progressive liberals who share their values, either to peel away votes from Democratic candidates, or in the case of Mr. Osborn, so that down-ballot candidates might sort of gain some illegitimate affiliation with his campaign message,” Dodge said.

Under state statute, the name of a newly formed political party “shall not be or include the name of any political party then in existence or any word forming any part of the name of any political party then in existence.” An attorney for the Working People Party argued that the statute only applies to parties already existing in the state.

The Democratic party and the Working Families Party formally objected to the Working People Party name on Aug. 9 before filing the lawsuit on Aug. 10. Evnen officially rejected their objection on Aug. 11 after determining that the objection should have been filed within seven days of the filing deadline. He identified that deadline as the July 15 deadline for new parties to turn in signatures for review.

Dodge argued that the statute supporting that deadline applies only to candidate filings – not political party filings. He also said there are multiple filing deadlines – like the upcoming Sept. 1 deadline for the parties to file bylaws and a party constitution – and Evnen chose the earliest one “for whatever reason.”