Nebraska Senate ‘spoiler’ candidates battle over Democrat ballot vacancy

A failed Nebraska Senate candidate wants to force Democrats to nominate a replacement candidate after the primary winner dropped out in an accused scheme to push an independent in the general election.LINCOLN, Neb. (CN) — Cindy Burbank won the Democratic primary for Nebraska’s U.S. Senate seat in May. In July, she dropped out in what her former challenger claims is political gamesmanship.William Forbes says Burbank made no secret during their primary race of her intent to drop out upon winning the nomination — an effort, he claims, by Nebraska Democrats to funnel support to independent candidate Dan Osborn.Forbes, who received just 10% of the vote in the primary race against Burbank, now wants Lancaster District Court Judge Susan Strong to force Democrats to put up a name to face off with Osborn in November.This past weekend, the Nebraska Democratic Central Committee voted not to fill the vacancy caused when Burbank dropped out. The vote occurred with at least a small amount of drama.Hoping for summary judgment, Forbes cited a state law saying that if a vacancy arises for a partisan office, “the vacancy shall be filled by the majority vote of the proper committee of the same political party.”But the Democrats have argued that Forbes is misreading the statute, saying that section only provides a method of filling a vacancy if the party chooses to fill it. They point to another statute that governs what happens if a candidate drops out, which says the vacancy if a candidate drops out, “may be filled.”“‘May,’ as the court knows, is strongly presumed to connote discretion, and therefore, it gives discretion to the party … to fill the vacancy or not to fill the vacancy," said David Fox, a Washington D.C. based attorney for Elias Law Group, representing the Democrats. “Mr. Forbes has no explanation for that text that makes sense.”Forbes also argued Democrats were confusing voters, claiming the state Democratic party is backing Osborn without specifically saying so and that there was no proof that Nebraska Democratic primary voters approved of its support of Osborn.“We look at the Democratic Party’s interest as a whole, not just the strategy interests of the party leadership,” said John Ehrett, a Washington D.C based attorney for Lex Politca, representing Forbes. “Voter confusing stands at the heart of this strategy … There is no First Amendment right to arrange a ballot in a particular way.”Strong previously denied Forbes’ motion for temporary injunction and said Forbes was unlikely to be successful because his effort raised constitutional issues.The case is also complicated by the fact that Forbes himself has fielded accusations of being a stalking horse candidate — he has a history of conservative activism and Democrats have posited that he is a plant from the campaign of incumbent Republican U.S. Senator Pete Ricketts.Both Forbes’ attorneys and Nebraska Solicitor General Cody Barnett said Democrats should have filed an objection if they felt that Forbes wasn’t a legitimate candidate.But Democrats said there was a problem with that: They didn’t think Forbes’ candidacy was unlawful. He just wasn’t a candidate they wanted to support. His entrance to the primary required the Democrats to put up another candidate. Forbes forced the primary, Fox argued.And making the Democrats to nominate someone at this late stage would be forcing the party to nominate someone it did not wish to nominate, they claim.“It would also be unbelievably confusing to voters,” Fox said.Strong did not issue a ruling Monday, but indicated she would do so soon — Sept. 11 is the last day for Nebraska Secretary of State Robert Evnen to certify candidates for the general election. But the matter is likely to be appealed to the Nebraska Supreme Court no matter what she rules, even on the tight timeline.The Democrats support of Osborn is part of an effort in the red states of the American west to embrace independent candidates who have a better shot at toppling Republican opponents.Osborn — a 51-year-old independent and union leader who led the 2021 strike at the Kellog’s plant in Omaha — came within 7 percentage points of beating GOP incumbent Deb Fischer in the 2024 race for the state’s other U.S. Senate seat in 2024.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads