Davis v. Gale
908 N.W.2d 618
Neb.2018Background
- Robert J. Krist was registered Republican, changed his registration to “Nonpartisan” on Sept. 13, 2017, and then registered as a Democrat on Feb. 12, 2018. He filed as a Democratic candidate for Nebraska governor on Feb. 13, 2018.
- Tyler A. Davis objected to Krist’s inclusion on the Democratic primary ballot, arguing Krist made a “change of political party affiliation” after the first Friday in December (Dec. 1, 2017) in violation of Neb. Rev. Stat. § 32-612.
- Secretary of State John A. Gale denied the objection, reasoning that registration as “Nonpartisan” is the absence of party affiliation, so Krist’s February declaration was an initial declaration of affiliation, not a change.
- Davis sought judicial review under Neb. Rev. Stat. § 32-624; a single justice of the Nebraska Supreme Court issued the decision summarily.
- Central legal question: whether “non-partisan” counts as a “political party affiliation” such that switching from nonpartisan to Democrat after the December deadline constitutes a prohibited “change of political party affiliation.”
Issues
| Issue | Plaintiff's Argument (Davis) | Defendant's Argument (Gale/Krist) | Held |
|---|---|---|---|
| Whether registering as “Nonpartisan” is a political party affiliation for § 32-612 | Krist was required to be a registered Democrat before Dec. 1, 2017; switching to Democrat on Feb. 12, 2018 was a prohibited change | “Nonpartisan” means no affiliation; registering Democrat in Feb. 2018 was a declaration of affiliation, not a change | Held: “Nonpartisan” is lack of affiliation; converting from nonpartisan to a party is not a “change of political party affiliation” under § 32-612 |
| Whether § 32-610 and § 32-612 must be read to make registration status dispositive | Davis: combine §§ 32-610 & 32-612 to require party registration before deadline | Gale/Krist: statutes use different terms; affiliation is distinct from mere registration | Held: statutes read together support that affiliation is a term of art distinct from registration; Krist met § 32-610 and did not violate § 32-612 |
| Whether Secretary of State’s prior interpretation (1998 memo) controls | Davis: statute should be applied according to text, not prior memo | Gale/Krist: prior long-standing administrative interpretation and legislative acquiescence support decision | Held: administrative interpretation consistent with statute; legislative inaction supports acquiescence but decision rests on statutory meaning |
| Whether this decision raises equal protection concerns | Davis alleged arbitrary distinction between affiliated and unaffiliated voters | Gale/Krist: not properly presented in this proceeding; merits not addressed | Held: Court declined to address equal protection claim in this summary special proceeding |
Key Cases Cited
- State ex rel. Chambers v. Beermann, 229 Neb. 696 (Neb. 1988) (authority on election-related procedural issues)
- State ex rel. Strom v. Marsh, 162 Neb. 593 (Neb. 1947) (earlier Nebraska election law precedent)
- Twin Towers Condo Assn. v. Bel Fury Invest. Group, 290 Neb. 329 (Neb. 2015) (statutory interpretation principles)
- Farmers Co-op v. State, 296 Neb. 347 (Neb. 2017) (canon to give statutes plain meaning)
- Morrissey v. Wait, 92 Neb. 271 (Neb. 1912) (elections construed to avoid hindering franchise)
- Japp v. Papio-Missouri River NRD, 271 Neb. 968 (Neb. 2006) (in pari materia construction of statutes)
- Storer v. Brown, 415 U.S. 724 (U.S. 1974) (independent candidates have no party affiliation)
- State v. Drexel, 74 Neb. 775 (Neb. 1905) (affiliation and primary voting requirements)