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LINCOLN — Democrat Cindy Burbank will stay off the U.S. Senate ballot for now after a Lancaster County District Court judge dismissed her lawsuit Thursday that she plans to appeal to the state Supreme Court.
The order, signed by retired Lancaster County District Court Judge John Colborn, partly read, “The Court concludes that she has not met her burden of proof for either remedy.”
One of Burbank’s attorneys, Kathleen Neary, said they would file a motion to appeal straight to the Nebraska Supreme Court. The appeal was filed around noon. The state’s top election official said the certification process for the May primary ballot had been completed.
Burbank had sued to get back on the 2026 Democratic primary ballot after Secretary of State Bob Evnen decided she wasn’t a “good-faith candidate” under state law following his office’s receipt of a Nebraska Republican Party complaint arguing she had no plans to serve in the office she sought.
Arguments during a court hearing Wednesday largely echoed filings from Burbank and the state GOP to Evnen before he decided. Attorneys for the Nebraska GOP and Evnen argued this week that Burbank’s campaign website and comments from Nebraska Democratic Party chair Jane Kleeb show Burbank did not plan to serve in Congress but planned to compete for the nomination and eventually support registered nonpartisan Dan Osborn.
Attorneys for the state and the state GOP also reinforced that Evnen can reject a candidate if the secretary decides the candidate did not act in “good faith.”
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State law says the secretary can reject someone if someone objects to their candidacy and the secretary agrees. Court decisions have cited the example of someone using the same name as another candidate and someone who files for the “purpose of creating confusion among the electors.” Burbank’s attorneys had questioned whether Evnen had the authority to remove her.
Burbank’s legal team argued the decision to remove her from the ballot violated her First Amendment rights and the U.S. Constitution’s qualifications clause.
Burbank’s attorneys also argued voters should be able to decide the nominee and that the same scrutiny should be applied to the other Democrat in the Senate race, William Forbes, whom some have alleged is trying to help U.S. Sen. Pete Ricketts, R-Neb. The GOP’s attorney rejected that characterization of Forbes, saying there is no “proof.” Forbes has sidestepped a question about whether he wanted to address allegations of being “loyal” to Ricketts.
Forbes was part of dueling allegations of planted candidates in the race. Legal Marijuana NOW Party candidate Mike Marvin has been accused by the marijuana party’s former chair, Mark Elworth Jr., of being a “Dan Osborn plant” on the party’s Facebook page — pointing to Marvin’s union ties. Osborn is a former Omaha union leader. Marvin has said he’s not a “plant.” Osborn and Ricketts are in a heated campaign. Ricketts, a former two-term governor, faces a nominal primary involving four lesser-known Republicans, but is expected to win the GOP nomination. Osborn is gathering signatures to get on the November ballot as a nonpartisan. The signatures are due Aug 3.
If the Nebraska Supreme Court decides to weigh in, it has a tight deadline, since Friday is the deadline by which Evnen needs to finalize the May primary ballot. It decided a similar case involving Democratic Douglas County sheriff candidate Mark Martinez this week. A justice put him back on the ballot.
An Evnen spokesperson said that he had been advised by the Nebraska Attorney General’s Office to begin “the certification process for the primary ballot.”
“That process has been completed,” the statement said.
In a statement, Forbes said, “The primary is over, and it’s time for Democrats in Nebraska, and across the country, to unite behind a campaign that can win.”
Nebraska’s primary election is May 12. The general election is Nov. 3.
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- 2:49 pmEditor’s note: This story has been updated with the formal filing of the appeal.
