LINCOLN — In August, Nebraska Secretary of State Bob Evnen made the decision to mail applications for mail-in ballots to all registered voters in the state, something that had never been done before.
The rationale was that because of the COVID-19 pandemic, many voters would be reluctant to stand in line at a crowded polling place to vote on Nov. 3, so all voters should be given the option to vote by mail, without risking infection.
But now Nebraska, with Evnen’s blessing, is supporting a Texas challenge of the vote count in four other states, arguing, among other things, that only state legislatures — and not officials like judges or secretaries of state — can change election rules.
The apparent contradiction, and complaints that Nebraska is wasting taxpayer money on a long-shot legal attempt to overturn the election of Democratic President-elect Joe Biden, raised questions on Thursday, a day after Nebraska Attorney General Doug Peterson decided to join in a “friend of the court” filing supporting the Texas lawsuit.
A group of eight Black leaders from Omaha, including City Councilman Ben Gray and Douglas County Board member Chris Rodgers, criticized Peterson, saying the challenge was “ridiculous” and had “strong racial overtones” because it attacked legitimate voting in states and counties that were primarily African American.
State Sen. Ernie Chambers of Omaha called the lawsuit “totally frivolous” and likely a violation of the code of professional conduct of attorneys. Sen. Ben Sasse, a Republican often at odds with President Donald Trump, told the Washington Examiner that the lawsuit was more about gaining a pardon for Texas Attorney General Ken Paxton (as the FBI investigates allegations including bribery) than prevailing in court.
A spokeswoman for Peterson deferred comment to Evnen, a lawyer who, like Peterson, is a Republican. Evnen defended the objective of the lawsuit and said there was nothing in Nebraska election law to prohibit what he did, unlike in the states named in the Texas lawsuit.
“Nebraska statutes are silent as to the early application of voters,” he said. “The Nebraska statutes leave it to the secretary of state to enforce the act and interpret it.”
And so it went on Thursday, a day after Nebraska signed onto the lawsuit filed by the Texas attorney general, a Republican. The lawsuit seeks to toss out the presidential election results in four battleground states (Pennsylvania, Michigan, Wisconsin and Georgia) and let the Republican-controlled legislatures choose the presidential electors in those states.
Among the lawsuit’s claims: that only the state legislatures have the power to change election rules and that secretaries of state and courts violated the constitutional “separation of powers” by adopting changes in the face of COVID-19 and a huge increase of absentee votes.
In Michigan, the lawsuit alleged impropriety by the secretary of state for mailing absentee ballot applications to all 7.7 million registered Michigan voters when state law specifies only three other ways to request an absentee ballot. But a recent article in the Michigan Bar Association magazine said that the secretary of state has broad powers to interpret election law and that a recent voter-approved constitutional amendment allows voters to receive an absentee ballot without citing a reason.
Social media was ablaze with criticism of and support for Nebraska’s decision to join the last-ditch legal battle. Some called it a waste of taxpayer money; others, a courageous defense of democracy.
An Omaha man urged Reddit followers to file a bar complaint against Peterson.
But 106 House Republicans, including Reps. Jeff Fortenberry and Adrian Smith, also filed a friend of the court brief supporting the Texas attorney general. Rep. Don Bacon, who represents the Omaha area, did not.
Ryan Hamilton, executive director of the Nebraska Republican Party, said the GOP is “unified” behind Peterson and “grateful for his courage and leadership.”
“The facts aren’t in question — certain elections officials violated their own state statutes, operating outside of the process set forward in our nation’s constitution,” Hamilton said.
But John Hibbing, a political science professor at the University of Nebraska-Lincoln, said his reading of the lawsuit was that it was “grabbing at disparate straws in a fashion unbecoming of an overdue undergraduate research paper.”
No law crafted by a state legislature can “dot every i and cross every t,” Hibbing said, so it’s up to courts and executives like Evnen to interpret and apply things like election law.
Evnen, the professor said, did a good job with the 2020 elections in Nebraska. But Hibbing said he was disappointed that Evnen would support such a “craven” lawsuit and dismayed that Peterson would waste staff time on a frivolous lawsuit that is “being pushed merely so that ambitious and/or sycophantic attorneys general can preen in front of Trump’s diehard base.”
But Evnen said there were good reasons to urge court review of the election procedures in the four states.
He cited a recent Rasmussen poll that found that 47% of participants believed that Democrats stole votes or destroyed pro-Trump ballots to guarantee a Biden victory.
With that high level of distrust, Evnen said its “paramount” that “credible claims” are presented for court evaluation.
“We have to go through this process if we’re going to regain the confidence of a very large percentage of American voters in the accuracy, security and legitimacy of our voting systems,” he said. “There are no shortcuts.”
Evnen also insisted that the legal challenge was not partisan but was about election integrity. That is despite the lawsuit being filed by a Republican and gaining the backing of several Republican states and congressional representatives.
John Cartier, director of Voting Rights for Civic Nebraska, which tracks state election laws, disagreed, saying the lawsuit seeks to invalidate the results of a “free and fair” election and the hard work of election officials to ensure that despite the coronavirus pandemic.
Dozens of court challenges to the 2020 presidential election have already been dismissed as unfounded, Cartier said, and “the action Nebraska has now joined is no different.”