Key Points

  • The Nebraska Supreme Court affirmed judgment for the Secretary of State, holding that the challengers failed to prove Neb. Rev. Stat. § 32-939(2) facially unconstitutional.
  • The court found the U.S. Supreme Court's reasoning in Bost v. Illinois State Bd. of Elections persuasive, though not binding, and held that candidate Pamela Dingman had standing to challenge a statute governing the counting of votes in her election.
  • The court held that a U.S. citizen born abroad who has never lived in the United States acquires a Nebraska parent's domicile at birth and can qualify as an elector under article VI, section 1, of the Nebraska Constitution.
  • The court held that the 'never resided' voters covered by subsection (2) are different people from the 'overseas citizens' covered by subsection (1).
  • Justice Cassel dissented, finding Dingman's asserted injury neither actual, imminent, nor palpable, and would have dismissed the appeal.

The Nebraska Supreme Court on Friday upheld a state law that lets voting-age U.S. citizens who live abroad and have never lived in the United States register and vote in the Nebraska county where a parent is registered. The ruling rejected a Republican National Committee suit arguing that the law violates the state constitution's residency requirement for voters.

In a per curiam opinion, the court affirmed a ruling by Lancaster County District Judge Ryan S. Post in favor of Secretary of State Robert B. Evnen. Justice Cassel dissented. The court first held that one plaintiff, Pamela Dingman, a candidate for Lancaster County engineer, had standing, meaning a stake in the dispute sufficient to bring the suit.

The decision leaves in force a 2005 statute under which, according to the Secretary's evidence, 116 people were registered to vote. It also relies on the reasoning of Bost v. Illinois State Board of Elections, a 2026 U.S. Supreme Court decision the court found persuasive though not binding, holding that candidates are concretely harmed when votes in their races are counted under unlawful rules.

Since 1875, the Nebraska Constitution has required that voters "shall have resided in" the state, county and voting precinct. In 1895, in Berry v. Wilcox, the court held that residence there means domicile, a person's permanent legal home. The 2005 law, codified at Neb. Rev. Stat. § 32-939(2), covers a citizen "residing outside the United States, who has never resided in the United States," who has not registered in another state and who has a parent registered in Nebraska.

A separate, unchallenged 1994 provision, which the court called subsection (1), appears to implement the federal Uniformed and Overseas Citizens Absentee Voting Act and lets Nebraska residents living abroad, including "[o]verseas citizens," register and apply for ballots.

The RNC, registered voter Jack Riggins and Dingman sued on June 22, 2026, seeking to have the 2005 law declared unconstitutional and to bar the Secretary from providing ballots to people who vote under it. An affidavit from the deputy secretary of state for elections showed 116 people registered under the law, 30 of them in Lancaster County, and the Secretary noted that six had voted in the 2026 primary.

On standing, the Secretary argued that Bost did not control and that the Legislature already lets candidates contest an election result "[i]f illegal votes have been received . . . sufficient to change the results." "The Secretary is correct that Bost is not binding on Nebraska courts," the court wrote. But it found Bost's reasoning about the harm that departures from election rules cause candidates "to be persuasive given the facts and circumstances of this case."

In Bost, an Illinois congressional candidate challenged a law requiring officials to count mail ballots postmarked or certified no later than Election Day and received within two weeks after it. The U.S. Supreme Court concluded that candidates "have an obvious personal stake in how the result is determined." Applying that reasoning, the Nebraska court wrote that the harm Dingman "would suffer as a candidate if votes were cast in her election by unlawful voters is sufficiently concrete in light of Bost." Because Dingman had standing, the court did not decide whether the RNC or Riggins did.

The court also rejected the challengers' claims that the district court erred on indispensable parties, because that court never found a party absent. Instead, it had concluded that the absence of the 116 registrants was "not a jurisdictional defect," because the attorney general could represent them under the parens patriae doctrine, which presumes that the state represents all its citizens in suits involving sovereign interests.

On the merits, the challengers brought a facial challenge, which seeks to void a statute in every application. To win, the court explained, a plaintiff must establish "that no set of circumstances exists under which the act would be valid." The Secretary offered a hypothetical voter named Joe, born in South America to missionary parents from Saunders County who always intended to return. Joe, now an adult, never registered elsewhere or intended to make a foreign country his home.

The RNC argued that Joe was already an overseas citizen eligible under subsection (1), so the 2005 law did nothing for him. In the challengers' view, the law instead enfranchised people like Joe's hypothetical 23-year-old brother, who "has established domicile in South America, and does not consider himself a Nebraskan."

The court disagreed. Because the Legislature used the phrase "never resided" in 2005 rather than the existing term "overseas citizens," the court presumed it meant different people. It added that the federal registration form treats overseas citizens as people who lived in the United States before moving abroad, which Joe never did.

The court then held that Joe qualifies as a voter under the state constitution because children acquire their parents' domicile at birth. "Under these precedents, Joe acquired domicile in Nebraska at birth even though he had never been there, and there is no suggestion that he has resided in a new locality with an intention to remain there," the court wrote. "We determine there is at least one constitutional application of subsection (2)."

In dissent, Cassel, who also dissented in Forbes v. Nebraska Democratic Party, a 2026 decision the challengers cited, wrote that the majority "neither cites nor discusses Forbes" and that he did not find Dingman's claim of injury "to be direct, concrete, distinct and palpable, or fairly traceable to the challenged action."

Citing the deputy secretary's comparison of votes cast under the law with total voters over the last three election cycles, Cassel wrote, "These numbers establish that the claimed harm is neither actual, imminent, nor palpable. The purported harm resembles a droplet in a deluge." He added that "under other circumstances, standing might exist. But not here," and said he would dismiss the appeal.

Lawyers for the RNC and the other challengers included J.L. Spray of Mattson Ricketts Law Firm, L.L.P. The Secretary was represented by Attorney General Michael T. Hilgers. Daniel J. Gutman of Gutman Law Group represented the Democratic National Committee as amicus curiae.

The affirmance leaves in place the district court's dismissal of the amended complaint with prejudice. Having rejected the challenge on the merits, the court did not reach the Secretary's fallback request to dismiss without prejudice for failure to join the registrants.