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LINCOLN — The clock is ticking on a legal battle over who will appear as Pete Ricketts’ No. 2 man on Nebraska ballots this fall.

The federal deadline to have ballots sent to military and overseas voters is Friday, and the printers are already running for some counties.

“My ballots have gone to print,” said Cass County Election Commissioner Nancy Josoff. She’s also emailed ballots to a couple traveling abroad.

Most counties are in the final stages of proofing the many versions of ballots they distribute within their areas. Those proofs are then generally sent to Election Systems and Software, the Omaha company that produces ballots for 90 of Nebraska’s 93 counties.

Meanwhile, attorneys are wrangling over whether state Auditor Mike Foley’s name should be allowed to replace that of former Lt. Gov. Lavon Heidemann on the ballot as running mate for Ricketts, the Republican gubernatorial nominee. Ricketts named Foley as his pick for lieutenant governor after Heidemann resigned last week.

Democrats and others have balked at Nebraska Secretary of State John Gale for allowing the switch despite a Sept. 1 deadline for a person to agree to appear on the ballot as a candidate for lieutenant governor. Gale is a Republican.

On Tuesday, lawyers for the state and the Ricketts campaign appeared in Lancaster County District Court to defend Gale’s decision, arguing Ricketts has a constitutional right to pick his running mate and that ordering Gale to put Heidemann’s name on the ballot instead of Foley’s would “cause disorder and chaos.”

Gale has some discretion when it comes to state election rules, Assistant Attorney General L. Jay Bartel told Judge Lori Maret. He said Gale’s decision was consistent with the purpose of the law given the “unique circumstances” at play.

“The deadlines in this case are not discretionary,” argued Elizabeth Eynon-Kokrda, attorney for Libertarian gubernatorial candidate Mark Elworth Jr., who is seeking a writ of mandamus to require Gale to put Heidemann's name on the ballot.

“Candidates like my client have a right to know who they’re running against” within a reasonable time, Eynon-Kokrda said, and voters need time to consider who they’re voting for.

Allowing changes to the ballot after the set deadline defeats that purpose, she said.

She cited a comment made by former state Sen. DiAnna Schimek in 2001, when lawmakers instituted the Sept. 1 deadline. At the time, Schimek said the Legislature intended for any candidate who dropped out late to still appear on the November general election ballot.

Gale’s decision prevented handing a “confusing and incorrect ballot” to voters, said Steve Grasz, an attorney with Husch Blackwell representing the Ricketts campaign, which also submitted a friend of the court brief.

The secretary of state’s highest duty is to uphold the state Constitution, Grasz said.

He and Eynon-Kokrda traded assertions about whether Foley feasibly could be a write-in candidate.

Anyone who voted for Ricketts and then wrote in Foley for lieutenant governor would have their votes discounted because they voted twice, Grasz said.

But Eynon-Kokrda said anyone wanting to vote for a Ricketts-Foley ticket could simply write in both candidates’ names. The ballot will include lines for both governor and lieutenant governor, according to the Secretary of State’s office.

With Friday’s deadline looming, election officials across Nebraska are watching the case closely.

Gale certified the ballot with Foley’s name on Sept. 12, leaving a one-week window for those preparing ballots for uniformed and overseas voters as well as those trying to challenge Gale’s decision.

“We are in our last stage of proofing,” said Joyce Oakley, the clerk in Nemaha County. “We’re all doing our finals.”

She has just two military voters, stationed in the Colorado Springs area. Sarpy County, home of Offutt Air Force Base, had 23 military service members ask for absentee ballots, in addition to nine nonuniformed voters who are overseas.

The federal law requiring those ballots to be sent by Friday is the Uniformed and Overseas Citizens Absentee Voting Act. According to the Department of Justice, states that have missed the deadline have faced court orders to extend their deadlines for receiving and counting ballots, “even when they arrived after Election Day.”

In Lincoln, Lancaster County Election Commissioner Dave Shively said he expected to sign off on ballots in the next day or two. Twenty-five to 30 Lancaster County voters requested overseas or military absentee ballots, he said.

Should Judge Maret’s decision come close to the deadline, Shively and Sarpy County Election Commissioner Wayne Bena said it might cause some headaches, but fixing the ballots wouldn’t take long.

Most overseas voters now request ballots be emailed rather than mailed. And hard copies sent to those who ask for them can simply be printed from a computer file.

“We can get a new proof, you know, pretty easy with a new name on it by Friday in order to get them out by Friday,” Bena said.

“We’ll do what we have to do.”


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