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Tyler A. Davis, relator, v. John A. Gale, 

official capacity as Secretary of

of the State of Nebraska, responden

and Robert J. Krist, interv

___ N.W.2d ___

Filed March 19, 2018. No. S-18-218.

Special proceeding before Michael G. Heavican, C

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

Tyler A. Davis objected to the inclusion of Robert J. Krist 

as a Democratic candidate for Nebraska governor on the primary 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 affiliation” 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/04/2018 08:09 AM CDT
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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 governor, 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 determined that on December 1, 2017, Krist was a nonpartisan 

registered voter with no political party affiliation. Gale reasoned 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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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 jurisdiction 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 preceding 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 decision 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 Review

Propositions of 

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 meaning 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 popular 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 organizations 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 conduct 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 Lan

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 registered 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 having a party affiliation. The objectives of §§ 32-610 and 32-612 

differ and they use different terminology. As such, it is incorrect 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 filing 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 definition 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 affiliation 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 applicant 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 nonpartisan, 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 declaration 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 deadline 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 political 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-

This interpretation of the plain language “a change in political party affiliation” is consistent with the purpose and history 

of § 32-612. As encompassed in that statute, the time limitations 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 registration, and at times the language was dependent upon a 

candidate’s affiliation with a political party. I find these variations 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 provided that

[a]ny elector of one political party within the meaning 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 acceptance 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 requiring 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 nomination 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 compliance 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 language 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 prohibited “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 compelling. 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 affiliation” 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 language. 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 recognized 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 allegiance 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 earlier codifications of the statute used substantially different language, 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 conclude 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 Arguments Lac

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 unaffiliated) 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, however, that no such political party exists and that the only official 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 affiliated with a political party may file a candidate form with a different 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 political 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 enter