Complaints about U.S. Senate candidates who hinted at helping Osborn sent to Nebraska AG

LINCOLN — A former Republican state lawmaker and an unsuccessful GOP candidate for Legislature sent complaints this week to Nebraska Attorney General Mike Hilgers asking him to look into the U.S. Senate candidacies of Democrat Cindy Burbank and Legal Marijuana NOW nominee Mike Marvin over allegations that neither of them intends to serve.

The complaints, obtained by the Examiner and verified by the people filing them, allege that Marvin and Burbank aren’t “good faith” candidates under a requirement in state law that candidates who run actually seek the office sought, and that the two targeted candidates opposing Republican U.S. Sen. Pete Ricketts made “false” statements under “oath or affirmation” when they filed to run. 

The requests argue separately that the candidates may have broken Nebraska law related to election falsification, perjury or encouraging perjury or making a false sworn statement. The complaint about Marvin comes from Derek Schwartz, a La Vista police officer who ran unsuccessfully this spring for the Nebraska Legislature in District 18. The complaint about Burbank came from Lydia Brasch, a former state senator from West Point, Nebraska, who served from 2011 to 2019.  

“I believe election integrity in Nebraska, not just this cycle, but in all cycles going forward is a paramount priority, and that manipulation of Nebraska’s election laws through strategic withdrawals and bad-faith candidacies is an unlawful practice that authorities should take steps to stop,” Brasch wrote in her complaint. 

 Marvin and Burbank didn’t immediately respond to requests for comment Thursday evening. 

The complaints largely echo arguments made by Nebraska Secretary of State Bob Evnen when he briefly removed Burbank from the ballot. She sued successfully to get back on, partly because Evnen missed a deadline for raising his objection.

The requests also echo concerns about Burbank raised to Evnen by the Nebraska Republican Party in March. The NEGOP had argued Burbank was not a “good-faith” candidate. Its complaint argued she had no intention of serving if elected. 

Brandon J. Johnson, an assistant professor at the University of Nebraska-Lincoln College of Law who focuses on election law, said the complaints, in his eyes, seem to lack merit. But he said he can’t predict how a court might rule if a lawsuit comes. 

“In terms of what the oath requires, right, is a willingness to serve if elected, which doesn’t seem to require running an active campaign … you’d probably run into some significant First Amendment problems if you required a primary candidate to run, no matter what,” Johnson said.  

Burbank’s attorneys made similar arguments in court this spring. 

The oath that candidates sign when they file to run says, “I hereby swear that I will abide by the laws of the State of Nebraska regarding the results of the primary and general elections, that I am a registered voter and qualified to be elected, and that I will serve if elected.”

Johnson, the law professor, said the complaints appear to misinterpret some state statutes. No action has yet been taken by the attorney general. The Attorney General’s Office had no immediate comment on the requests Thursday evening.

Former Nebraska Attorney General Doug Peterson, a Republican who has argued election cases, said by text Thursday that he “suspects our courts are not excited about being brought into political lawsuits, [but] in order to maintain the integrity of our electoral system it is imperative that the alleged facts be heard and decided by our judicial system.” 

The latest complaints came days after Hilgers confirmed to the Examiner that the Secretary of State’s Office in Lincoln has reached out to him for guidance on whether Evnen, the state’s top election official, can keep Burbank on the November ballot once she asks to be removed, which she could do after the state formally certifies the election on June 8. 

The requests are the latest in months of back and forth over who should reach the November ballot between backers of Ricketts and nonpartisan U.S. Senate candidate Dan Osborn, after a primary election rife with flying allegations of candidates “planted” to help each of them, which all involved campaigns have denied. 

Said Johnson, the professor: “This is all politics … and trying to turn it into a legal issue is one of the things that’s troubling about our current state of politics.”