Davis v. Gale , 299 Neb. 377 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
DAVIS v. GALE
Cite as 299 Neb. 377
Tyler A. Davis, relator, v.John A. Gale, in his
official capacity as Secretary of State
of the State of Nebraska, respondent,
and Robert J. K rist, intervenor.
___ N.W.2d ___
Filed March 19, 2018. No. S-18-218.
Special proceeding before Michael G. Heavican, Chief
Justice of the Nebraska Supreme Court. Judgment entered.
Joseph A. Wilkins, of Mattson Ricketts Law Firm, for relator.
Douglas J. Peterson, Attorney General, L. Jay Bartel, Ryan
S. Post, and Lynn A. Melson for respondent.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
intervenor.
Heavican, C.J.
Tyler A. Davis objected to the inclusion of Robert J. Krist
as a Democratic candidate for Nebraska governor on the pri-
mary election ballot. Nebraska Secretary of State John A.
Gale denied the objection. Davis filed a verified petition for
special proceeding before a judge of the Nebraska Supreme
Court pursuant to Neb. Rev. Stat. § 32-624 (Reissue 2016).
The issue is whether non-partisan is a “political party affilia-
tion” for the purpose of interpreting Neb. Rev. Stat. § 32-612
(Reissue 2016). I conclude non-partisan is not a “political party
affiliation,” but rather is the lack of a political party affiliation.
Krist’s name shall be included on the primary ballot.
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DAVIS v. GALE
Cite as 299 Neb. 377
FACTS
The relevant facts are undisputed. Prior to September 13,
2017, Krist was affiliated with the Republican party. On that
date, he filed a Nebraska voter registration application with
the Douglas County election commissioner, registering as
“Nonpartisan.” On February 12, 2018, Krist filed a Nebraska
voter registration application with the Douglas County election
commissioner, registering as a Democrat.
On February 13, Krist filed with the Nebraska Secretary
of State a “Governor Candidate Filing Form,” declaring he
was a Democratic candidate for the office of Nebraska gov-
ernor, and requesting that his name be shown on the ballot
as “Bob Krist” for the primary election to be held on May
15, 2018.
On February 20, 2018, Davis filed an objection with the
Secretary of State to Krist’s candidate filing form.1 Davis
alleged that Krist’s February 13, 2018, candidate filing form
was not effective because Krist made a “change of political
party affiliation” after the first Friday in December prior to the
date of the May 15, 2018, primary, and thus violated § 32-612.
The first Friday in December prior to the date of the May 15,
2018, primary election was December 1, 2017.
Gale denied the objection on February 27, 2018. Gale deter-
mined that on December 1, 2017, Krist was a nonpartisan
registered voter with no political party affiliation. Gale rea-
soned that because Krist was registered as nonpartisan prior to
February 12, 2018, his Nebraska voter registration application
filed that day declaring his “Party Affiliation” as a Democrat
was a declaration of a political party affiliation, not a change
of political party affiliation.
JURISDICTION
On March 6, 2018, Davis filed an application for “leave
to commence an original action in the nature of a petition for
1
See § 32-624.
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Cite as 299 Neb. 377
a special proceeding relating to elections.” The application
referred to § 32-624 and to the Nebraska Supreme Court’s
original jurisdiction under Neb. Const. art. V, § 2 as set forth
in Neb. Rev. Stat. § 24-204 (Reissue 2016).
In his responsive brief, Krist contends original jurisdic-
tion does not lie for this action because it does not involve an
election contest in that no election has occurred. Whether the
court has original jurisdiction need not be determined because
§ 32-624 provides jurisdiction for this special proceeding.
Pursuant to that statute, Gale’s decision shall be final
unless an order is made in the matter by a judge of
the county court, district court, Court of Appeals, or
Supreme Court on or before the fifty-fifth day preced-
ing the election. Such order may be made summarily
upon application of any political party committee or
other interested party and upon such notice as the court
or judge may require. The decision of the Secretary of
State or the order of the judge shall be binding on all
filing officers.
Davis’ filing invoked § 32-624, and thus a judge of this court
may issue an order summarily. The decision here is not an
opinion of the Nebraska Supreme Court.2 Rather, it is a deci-
sion of a single justice of the Nebraska Supreme Court.
ANALYSIS
At issue in this special proceeding is the application and
interpretation of Neb. Rev. Stat. §§ 32-610 (Supp. 2017) and
32-612. Section 32-610 provides in relevant part:
[N]o person shall be allowed to file a candidate filing
form as a partisan candidate or to have his or her name
placed upon a primary election ballot of a political party
unless (1) he or she is a registered voter of the political
party if required pursuant to [a party rule] . . . .
2
See, State ex rel. Chambers v. Beermann, 229 Neb. 696, 428 N.W.2d 883
(1988); State ex rel. Strom v. Marsh, 162 Neb. 593, 77 N.W.2d 163 (1956).
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And § 32-612(1) provides in relevant part:
A change of political party affiliation by a registered
voter so as to affiliate with the political party named
in the candidate filing form . . . after the first Friday in
December prior to the statewide primary election shall
not be effective to meet the requirements of section
32-610 . . . , except that any person may change his
or her political party affiliation after the first Friday
in December prior to the statewide primary election to
become a candidate of a new political party which has
successfully completed the petition process required by
section 32-716.
The first Friday in December prior to the May 15, 2018,
statewide primary election was December 1, 2017. On that
date, Krist was a registered voter and his registration reflected
he was “Nonpartisan.”
The heart of the issue is the meaning of the statutory phrase
“a change of political party affiliation” as used in § 32-612.
Gale, relying in part on a 1998 memorandum issued by a
former Secretary of State,3 reasoned that a voter registered as
“Nonpartisan” is not affiliated with any party so that when
Krist registered in February 2018 as a Democrat, he was at that
time merely declaring an affiliation with a political party, not
effecting a change of political party affiliation.
Standard of R eview and
Propositions of Law
The issue is one of statutory interpretation, which presents
a question of law.4 Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort
to interpretation to ascertain the meaning of words which
3
See Neb. Rev. Stat. § 32-201 (Reissue 2016) (providing Secretary of State
decisions on election law have force of law until changed by courts).
4
Twin Towers Condo Assn. v. Bel Fury Invest. Group, 290 Neb. 329, 860
N.W.2d 147 (2015).
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are plain, direct, and unambiguous.5 In discerning the mean-
ing of a statute, a court determines and gives effect to the
purpose and intent of the Legislature as ascertained from the
entire language considered in its plain, ordinary, and popu-
lar sense.6
A court must attempt to give effect to all parts of a statute,
and if it can be avoided, no word, clause, or sentence will be
rejected as superfluous or meaningless.7 The whole and every
part of the statute must be considered in fixing the meaning of
any of its parts.8 In construing a statute, a court looks to the
statutory objective to be accomplished, the evils and mischiefs
sought to be remedied, and the purpose to be served. A court
must then reasonably or liberally construe the statute to achieve
the statute’s purpose, rather than construing it in a manner that
defeats the statutory purpose.9
Over one hundred years ago, we stated that “it is the duty
of the courts, in construing statutes providing for printing the
names of candidates of both old and new political organiza-
tions upon the ballot,” to do so in light of the constitutional
principle that “all elections shall be free; and there shall be
no hindrance or impediment to the right of the qualified voter
to exercise the elective franchise.”10 Other jurisdictions have
similarly concluded that statutes relating to election law must
be liberally construed. In Louisiana, laws governing the con-
duct of elections are liberally interpreted “so as to promote
5
Farmers Co-op v. State, 296 Neb. 347, 893 N.W.2d 728 (2017).
6
Id.
7
Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015); Holdsworth
v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30 (2013).
8
Board of Trustees v. City of Omaha, 289 Neb. 993, 858 N.W.2d 186
(2015); Fisher v. PayFlex Systems USA, 285 Neb. 808, 829 N.W.2d 703
(2013).
9
Fisher v. PayFlex Systems USA, supra note 8.
10
Morrissey v. Wait, 92 Neb. 271, 138 N.W. 186, 188 (1912); Neb. Const.
art. I, § 22.
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rather than defeat candidacy,” and the person objecting to
the candidacy bears the burden of proving the candidate is
disqualified.11 New Jersey liberally construes election laws so
as to “effectuate their purpose,” being mindful that statutes
designed to establish an orderly system and procedure in the
electoral process should not be “so narrowly construed as to
prevent, obstruct, discourage or otherwise frustrate” the right
of persons constitutionally qualified for public office from
offering themselves as candidates.12 Ohio liberally construes
election laws “in favor of candidates for public office.”13 And
Pennsylvania liberally construes its election laws “so as not to
deprive a candidate of the right to run for office or the voters
of their right to elect a candidate of their choice.”14 I agree with
the reasoning of these authorities and conclude §§ 32-610 and
§ 32-612 should be liberally construed so as to promote, rather
than defeat, candidacy for the primary election.
Statutory Language
Davis argues that Gale erred by interpreting § 32-612 in
isolation rather than in conjunction with § 32-610. He contends
that read together, § 32-610 “required . . . Krist to be a regis-
tered voter of the Democratic party if he wished to be included
in the 2018 primary election and § 32-612 required him to do
it before December 1, 2017.”15 Davis asserts this is so because
Krist had to “change” his voter registration in order to become
affiliated with the Democratic party, and he failed to do so
prior to the deadline imposed by § 32-612.
I reject this argument because it conflates the concept of
voter registration contained in § 32-610 with the separate
11
Russell v. Goldsby, 780 So. 2d 1048, 1051 (La. 2000).
12
Alston v. Mays, 152 N.J. Super. 509, 517 (1977).
13
State ex rel. Livingston v. Miami Cty. Bd. of Elections, 963 N.E.2d 187,
192 (Ohio App. 2011).
14
Petition of Cioppa, 626 A.2d 146, 148 (Pa. 1993).
15
Brief for relator at 8.
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concept of party affiliation in § 32-612. As the instant case
aptly demonstrates, one can be registered to vote without hav-
ing a party affiliation. The objectives of §§ 32-610 and 32-612
differ and they use different terminology. As such, it is incor-
rect to read them in the manner urged by Davis.
The record is clear that Krist was a registered voter of the
Democratic party before he filed his candidate form. Krist
therefore met the statutory requirement of § 32-610 and his fil-
ing was effective unless, under § 32-612, he made a “[c]hange
of political party affiliation” after December 1, 2017.
Section 32-612 does not define “political party affiliation”
or what constitutes a change thereof. The dictionary defini-
tion of “change” is “[t]o substitute one thing for (another);
to replace (something) with something else, esp. something
which is newer or better; to give up (something) in order
to replace it with something else.”16 A different and related
statute offers guidance on the definition of “political party
affiliation.” Neb. Rev. Stat. § 32-312 (Supp. 2017) sets forth
what must be contained in a Nebraska voter registration
application. As to “Party Affiliation,” § 32-312 requires the
application to
show the party affiliation of the applicant as Democrat,
Republican, or Other . . . . . . or show no party affilia-
tion as Nonpartisan. (Note: If you wish to vote in both
partisan and nonpartisan primary elections for state and
local offices, you must indicate a political party affiliation
on the registration application. If you register without a
political party affiliation (nonpartisan), you will receive
only the nonpartisan ballots for state and local offices at
primary elections. If you register without a political party
affiliation, you may vote in partisan primary elections for
congressional offices).17
16
“Change,” Oxford English Dictionary Online, http://www.oed.com/view/
Entry/30468 (last visited March 15, 2018).
17
§ 32-312 (Emphasis added.)
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Similarly, Neb. Rev. Stat. §§ 32-308 and 32-312.02(5) (Reissue
2016) require that a voter registration application include the
“party affiliation of the applicant or indication that the appli-
cant is not affiliated with any political party.” Thus, a voter
registered as non-partisan is an individual not affiliated with a
political party.
Sections 32-308, 32-312, 32-312.02, 32-610, and 32-612
are all part of the Election Act.18 A court will construe statutes
relating to the same subject matter together so as to maintain a
consistent and sensible scheme.19 The components of a series
or collection of statutes pertaining to a certain subject matter
which are in pari materia, may be conjunctively considered
and construed to determine the intent of the Legislature so
that different provisions of the act are consistent, harmonious,
and sensible.20
It is apparent from the foregoing that the phrase “political
party affiliation” is a term of art used by the Legislature to
specifically reference an existing relationship with one of the
established Nebraska political parties: Republican, Democrat,
or Libertarian.21 And terms of art with legal significance used
in statutes are to be construed and understood according to their
appropriate meaning.22 One who is registered as “Nonpartisan,”
as Krist was prior to February 12, 2018, has no relationship
with any of these three established political parties and thus
has no “political party affiliation” as that phrase is used by the
Nebraska Legislature in the Election Act.
One who has no “political party affiliation” cannot change
his or her “political party affiliation.” This is so because, as
noted above, change requires substitution of one thing for
18
See Neb. Rev. Stat. § 32-101 (Reissue 2006).
19
Japp v. Papio-Missouri River NRD, 271 Neb. 968, 716 N.W.2d 707
(2006).
20
Id.
21
See § 32-312.
22
See Neb. Rev. Stat. § 49-802(5) (Reissue 2010).
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another or replacement of one thing with something else.23
One cannot “substitute” one thing for another or “replace” a
thing with something else if one has no thing to begin with.
For example, when one first registers to vote, he or she may
choose to affiliate with a political party. But in doing so, he or
she does not undertake a “change of political party affiliation,”
because there was no affiliation to substitute or replace. The
same logic applies when a voter who is registered as a nonpar-
tisan, and therefore has “no political party affiliation,”24 seeks
to become affiliated with a political party. There is no “change
of political party affiliation.” Rather, there is simply a declara-
tion of a political party affiliation. A change from no political
party affiliation to a political party affiliation is not a “change
of political party affiliation” for purposes of § 32-612.
In his order denying Davis’ objection to Krist’s filing form,
Secretary of State Gale noted that former Secretary of State
Scott Moore issued a written memorandum in February 1998,
interpreting § 32-612. In that memorandum, Secretary of State
Moore concluded: “It is my position that someone who amends
their registration from nonpartisan to affiliate with a political
party has not affected ‘a change in political party affiliation
. . .’ but has instead chosen to declare an affiliation.” Secretary
of State Moore thus found that one registered as a nonpartisan
could affiliate with a political party after the December dead-
line and run for partisan office in the primary election.
The Legislature has provided by statute that the Secretary
of State shall decide disputed points of election law, and that
such “decisions shall have the force of law until changed by
the courts.”25 In light of this legislative provision, I presume
the Legislature was aware of former Secretary of State Moore’s
1998 interpretation of § 32-612. Despite such knowledge, the
23
“Change,” Oxford English Dictionary Online, http://www.oed.com/view/
Entry/30468 (last visited March 15, 2018).
24
See § 32-312.
25
§ 32-201.
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Legislature made no attempt to amend the “change of politi-
cal party affiliation” language as interpreted by the Secretary
of State; thus, an acquiescence with the interpretation thereof
is indicated.26
Because the phrase “change of political party affiliation” as
used in § 32-612 necessitates the existence of a political party
with which to be affiliated, Krist did not violate § 32-612
when he registered as a Democrat in February 2018. To the
contrary, Krist merely declared an affiliation. Neither § 32-610
nor § 32-612 render Krist’s candidate form ineffective. Gale
correctly denied Davis’ objection thereto.
Purpose and History of § 32-612
This interpretation of the plain language “a change in politi-
cal party affiliation” is consistent with the purpose and history
of § 32-612. As encompassed in that statute, the time limita-
tions imposed on candidates seeking to join a political party
prior to the primary election originated in 1925, and were
codified by the Legislature first at Neb. Rev. Stat. § 32-1124
and later at Neb. Rev. Stat. § 32-515. The language used with
respect to those limitations has varied substantially over time.
At times the language was dependent upon a candidate’s reg-
istration, and at times the language was dependent upon a
candidate’s affiliation with a political party. I find these varia-
tions significant in that they demonstrate the Legislature was
capable of using precise language to draft the limitation it
wished to impose.
When originally enacted, the statute required a nominee to
file, at least 25 days before the primary, a statement verifying
under oath that he or she “affiliates” with the political party
nominating him or her.27 The direct precursor to the current
26
See, generally, Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012)
(holding when appellate court judicially construes statute and construction
does not evoke amendment, it is presumed Legislature acquiesced in
court’s determination of Legislature’s intent).
27
Laws 1925, c. 108, § 1, p. 297.
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language appears to have been a 1939 amendment which pro-
vided that
[a]ny elector of one political party within the mean-
ing of this article who desires to affiliate with a different
political party for the purpose of becoming a candidate
of said different political party shall, at least ninety days
prior to filing his application for nomination or accept­
ance of a nomination by petition, publicly declare his
intention to change his party affiliation by filing a written
statement thereof duly signed and sworn . . . .28
In 1953, a provision was added after the above language,
stating:
Provided, that where the elector resides in an area requir-
ing registration as a prerequisite to voting that a change
of registration prior to the most recent election and at
least ninety days prior to filing his application for nomi-
nation for any political office shall be deemed to be a
substantial compliance herewith.29
In 1969, the language added in 1939 was removed and
§ 32-515 stated only that “a change of registration at least
ninety days prior to filing his application for nomination for
any political office shall be deemed to be a substantial compli-
ance herewith.”30 Finally, in 1975 this language was changed
again to provide “a change of registration to the political party
named in the application less than ninety days prior to filing
his application for nomination for any political office shall
be deemed to be a lack of compliance with this section.”31
That language remained in § 32-515 until the election statutes
were re-codified in 1994 and the current language of § 32-612
was adopted.
28
Laws 1939, c. 34, § 9, p. 180.
29
Laws 1953, c. 106, § 23, p. 332.
30
Laws 1969, c. 259, § 41, p. 980.
31
Laws 1975, L.B. 494, § 2.
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The legislative history does not indicate why the lan-
guage used in § 32-612 differs from that used as of the 1975
amendments in § 32-515. It is apparent, however, that the
language is significantly different. As noted, § 32-515 pro-
hibited “a change of registration to the political party named
in the application” within a certain number of days prior
to the primary election. If that were the relevant statutory
language today, Davis’ argument would be more compel-
ling. Notably, however, the language specifically chosen by
the Legislature in § 32-612 and applicable in this case does
not broadly prohibit a candidate from changing his or her
registration to the political party named in the application.
Instead, it prohibits only a “change of political party affilia-
tion” after the first Friday in December of the preceding year.
As noted, “political party affiliation” is a term of art used by
the Legislature in election-related statutes and is consistently
applied by that body only as to affiliation with one of the
existing political parties—not to a nonpartisan voter.32 In fact,
a “Nonpartisan” or “Independent” political party cannot exist
under Nebraska law.33
To the extent it is useful, I note that additional authorities
support this interpretation of the Legislature’s chosen lan-
guage. The U.S. Supreme Court has recognized, in a related
context, that an “independent candidate” has no “political party
affiliations.”34 Similarly, the Nebraska Supreme Court has rec-
ognized that one must be “affiliated” with a party in order to
vote in a primary election, and that affiliation means “open
declaration of allegiance to a party.”35 Further, a Nebraska
Attorney General’s opinion addressed a related issue in 1998.
The opinion addressed the application of § 32-612 to “a person
32
See §§ 32-212 and 32-212.02.
33
Neb. Rev. Stat. § 32-716 (Reissue 2016).
34
Storer v. Brown, 415 U.S. 724, 733, 84 S. Ct. 1274, 39 L. Ed. 2d 714
(1974).
35
State v. Drexel, 74 Neb. 775, 105 N.W. 174 (1905).
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who was registered in one county as a member of a particular
party,” and then registered “as a member of a different party in
a different county.”36 That opinion concluded § 32-612 applied,
noting in part that “party affiliation” and “voter registration”
are not synonymous.
The sum of these parts is that the phrase “political party
affiliation,” and the concept of affiliating with a political party,
has been recognized in a distinct context by the legislative,
executive, and judicial branches of Nebraska government. That
context is in relation to an existing political party and an alle-
giance thereto. As such, the Legislature’s use of the precise
phrase “change of political party affiliation” in § 32-612 must
be viewed in light of this distinct context, and particularly
because under the relevant jurisprudence I am to liberally
construe the statute to promote rather than defeat candidacy,
limited to its precise terms. This is especially so because ear-
lier codifications of the statute used substantially different lan-
guage, which indicates the Legislature knew how to define the
limitation to precise terms and intended to do so.
In light of the precise language used in § 32-612, I con-
clude that only a “change of political party affiliation” so as
to “affiliate” with the political party named in the candidate
filing form is prevented after the first Friday in December of
the preceding calendar year. Because in February 2018 Krist
was unaffiliated with a political party as that term of art has
repeatedly been used in Nebraska law, he made no change to
his political party affiliation in order to become affiliated with
the Democratic party; thus Gale correctly denied the objection
to Krist’s candidate filing form.
Other A rguments Lack Merit
I briefly dispose of Davis’ other arguments. First, Davis
argues in his brief that Gale’s interpretation of § 32-612 violates
36
Att’y Gen. Op. No. 98024 (Apr. 9, 1998).
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the Equal Protection Clause of the Nebraska Constitution.37
Davis contends that Gale’s interpretation draws “an arbitrary
distinction between two classes of people (affiliated and unaf-
filiated) and enforces the law differently depending upon which
class of people the applicant falls into.”38 Such an argument is
not properly presented in this limited special proceeding and I
therefore decline to address it.
Second, Davis’ original objection to Krist’s candidate form
was based in part on Krist’s action related to a proposed
“United Nebraska” political party. The record is clear, how-
ever, that no such political party exists and that the only offi-
cial partisan political parties recognized in Nebraska are the
Republican, Democrat, and Libertarian parties. Because the
record shows “United Nebraska” is not and never has been
a recognized political party in Nebraska, any argument that
Krist “changed [his] political party affiliation” from “United
Nebraska” to “Democrat” in February 2018 is without merit.
CONCLUSION
The “change of political party affiliation” language in
§ 32-612 effectively allows a candidate registered without a
political party affiliation to “game” the primary system, in that
he or she may wait as late as March 139 before affiliating with a
party and filing a candidate form. In contrast, a candidate affili-
ated with a political party may file a candidate form with a dif-
ferent political party only if he or she has registered with that
different political party prior to the first Friday in December
preceding the primary election. A non-affiliated candidate can
37
Neb. Const. art. I, § 3. Davis does not assert a violation of equal protection
under the U.S. Constitution.
38
Brief for relator at 13.
39
See Neb. Rev. Stat. § 32-606 (Reissue 2016) (an incumbent of any elective
office shall file between December 1 and February 15 prior to the date of
the primary election, all other candidates shall file between December 1
and March 1 prior to the date of the primary election).
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thus adopt a “wait and see” approach and weigh the relative
strengths and weaknesses of the candidates for both politi-
cal parties prior to choosing a party affiliation. Whether this
loophole in the statute was contemplated by the Legislature
when enacting § 32-612, it had every opportunity to draft the
language precisely and specifically and it chose the language
at issue even after utilizing substantially different language in
prior versions of the statute. Furthermore, for approximately 20
years the Nebraska Secretary of State’s office has interpreted
the language in § 32-612 to not apply to one registered as
nonpartisan, and the Legislature has taken no action to change
the language. I can do no more than interpret the language in
the statute.
For the foregoing reasons, I conclude that Gale properly
denied Davis’ objection. Krist’s name should be placed on
the May 15, 2018, primary ballot as a Democratic candidate
for governor.
Judgment entered.