DNC won’t intervene in RNC lawsuit against Nebraska voting law after state pledges defense

LINCOLN — The Democratic National Committee withdrew a request Tuesday to intervene in a lawsuit from the Republican National Committee against a Nebraska voting law.

Omaha attorney Daniel Gutman, representing the DNC, said that as of July 1, it was unclear whether Nebraska Secretary of State Bob Evnen and Nebraska Attorney General Mike Hilgers would defend a law that allows certain U.S. citizens who have not lived in Nebraska or the United States, but whose parents are Nebraska residents and voters, to vote in the state.

At a Tuesday hearing, which lasted just over five minutes before Lancaster County District Judge Ryan Post, Gutman said officials now pledging to mount a defense changed DNC’s position.

Evnen previously described the lawsuit as “a little baffling” in an interview with the Nebraska Examiner. In a July 9 brief, state attorneys said the DNC’s involvement is neither allowed nor needed.

“If the proposed intervenor has the same interest as the state and the state provides ‘adequate’ representation, intervention is unnecessary and unwarranted,” Hilgers’ office said at the time.

The Nebraska Attorney General’s Office said representation is “adequate” if the parties did not collude, if Nebraska is not adverse to the proposed intervenor and if the state “diligently” prosecutes the case. The office said the state and Evnen have met each point and Hilgers has not determined that the law is “facially unconstitutional.”

“So he is carrying out that duty by representing the secretary of state in defending this action,” said Hilgers and Zach Pohlman, principal deputy solicitor general, who signed the July 9 brief.

Should those three points change, the AG’s Office said the DNC could seek to intervene again.

The RNC alongside Lancaster County Republican voters Jack Riggins and Pamela Dingman argue the state law “dilutes the votes of lawful Republican voters” and violates Article VI, Section 1 of the Nebraska Constitution, which defines a qualified voter as a U.S. Citizen who “has resided within the state and the county and voting precinct for the terms provided by law.

Hilgers and Evnen plan to file a motion to dismiss arguing that the RNC, Riggins and Dingman do not have standing, or the legal right, to bring the case. A hearing will be in early August.

An amended RNC complaint from July 10, one day after the Evnen filing against the DNC’s requested intervention, specifically updates background for Dingman, who serves as the elected engineer for Lancaster County. She is running unopposed for reelection this November.

The complaint states Dingman has a “concrete and particularized interest” in election policies.

The DNC argued that the RNC is the one seeking to disenfranchise American citizens and said “residence” in the Nebraska Constitution “simply means domicile, even in cases of physical absence.”

“Even if residence meant physical presence — and it does not — then for the narrow class of American citizens born and raised abroad who maintain a Nebraska domicile, Section 32-939 would establish a physical residence term of zero,” attorneys for the DNC said in a July 1 filing.

State law requires voters wishing to register under the targeted statute to affirm they have never “resided” in the United States, are not registered to vote in any other state and have a parent registered to vote in a single Nebraska county. 

Lying would be election falsification, a Class IV felony, which carries a penalty of up to two years imprisonment and 12 months post-release supervision or a fine up to $10,000, or both.

J.L. Spray, a Lincoln attorney representing the RNC and the two local voters, said he has asked Evnen’s office how many voters fall under the challenged law. Spray affirmed Tuesday that his clients have no interest in changing anything about voting for those voters living outside the country who have lived in Nebraska, particularly military personnel.

“We’re not challenging that in any way, shape or form,” Spray told Judge Post.

Evnen’s office did not respond to a reporter’s question of how many voters are registered under the challenged statute, Neb. Rev. Stat. 32-393(2), or how many voters have ever used it.

Spray told Post he hopes to have a resolution in the case by the time the first early ballots are mailed out in late September. Evnen must certify the November ballot by Sept. 11.

The general election is Nov. 3.

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