What to know ahead of Wednesday's Nebraska Supreme Court hearing on felon voting rights
On Wednesday, the Nebraska Supreme Court will hear arguments in a case that will determine if people convicted of felonies lose their right to vote for life unless granted clemency.
In July, two of Nebraska's top state officials deemed two state laws that restored voting rights to be unconstitutional — and ordered county officials to halt registrations for people convicted of felonies. The Nebraska Legislature voted earlier this year to allow those with felony convictions the right to vote immediately upon the completion of their sentences.
At the request of Nebraska Secretary of State Bob Evnen, Nebraska Attorney General Mike Hilgers issued a non-binding legal opinion in July finding the state law eliminating a two-year waiting period for regaining the right to vote was unconstitutional. Hilgers' opinion also found a 2005 law enacting the waiting period was unconstitutional.
Hilgers said the restoration of voting rights cannot be done legislatively, because that power rests exclusively with the Nebraska Board of Pardons. In response to Hilgers' opinion, Evnen ordered county election officials to stop allowing people with felony records to register to vote.
The American Civil Liberties Union of Nebraska petitioned the Nebraska Supreme Court on behalf of three men with felony records — two from Omaha and one from Hall County — who are seeking to vote in the 2024 election.
Attorneys for each side will have 15 minutes Wednesday to present arguments in front of the state's high court.
Does voting law violate the Separation of Powers Clause?
Since 2005, Nebraskans with felony records have had their voting rights restored after a two-year waiting period following the completion of their sentences.
During the last legislative session, lawmakers passed Legislative Bill 20 on a 38-6 vote . The law, which took effect in July, eliminated the two-year waiting period.
Nebraska Gov. Jim Pillen opted not to sign or veto the bill when it came to his desk in April, allowing it to become law. He issued a statement inviting Evnen, who is responsible for the management of elections in the state, and Hilgers, who has the power to respond to legal questions from state agencies and officials, to "promptly take such measures as are appropriate" to determine if the new law was constitutional.
In an 18-page legal opinion requested by Evnen in July, Hilgers found that both the recent and the 2005 laws are unconstitutional. The restoration of voting rights is considered a pardon, Hilgers said, or "an act of grace that relieves a person of legal consequences of his crime." Hilgers argued the Nebraska Board of Pardons has sole jurisdiction to restore voting rights to felons.
The Nebraska Board of Pardons includes of three people: Hilgers, Evnen and Pillen.
Though Hilgers' opinion is not legally binding, Evnen quickly directed county election officials to stop allowing felons to register to vote — even those who completed the waiting period previously required under 2005's LB 53.
"The Attorney General concluded that LB 20 and LB 53 violate the Separation of Powers Clause set forth in the Nebraska Constitution," Evnen wrote. "The opinion concluded that only the Board of Pardons could restore voting rights to an individual convicted of a felony."
Evnen announced Aug. 15 those with felony convictions who registered to vote under the provisions of LB 53 would not be removed from the state's voter registration system — but he instructed county election offices not to accept voter registration applications from felons unless they had been pardoned.
In legal filings, the petitioners requested the Nebraska Supreme Court issue a writ of mandamus — a court order requiring a government official or lesser court to perform their legal duty. The petitioners argued the court should order Evnen to allow those with felony convictions to register to vote as is required under current state law.
Secretary of State: The last 19 years were 'an unconstitutional aberration'
In written briefs filed this month, the sides laid out their arguments.
Evnen's brief, written by Nebraska Solicitor General Eric Hamilton, makes the case for what could become one of the country's most restrictive felon disenfranchisement laws. If the state Supreme Court sides with the state, only Nebraska and Virginia would have policies that strip all felons of the right to vote unless they are explicitly restored on an individual basis, according to the Brennan Center .
The respondents take the position that any form of re-enfranchisement is, by definition, a type of clemency which can only be granted by the Nebraska Board of Pardons.
"The last 19 years of automatic legislative re-enfranchisement are an unconstitutional aberration," the brief said. "The separation-of-powers clause precludes the Legislature from re-enfranchising felons since re-enfranchisement is an exercise of the executive clemency power."
The argument also relies on what respondents call the "rules of grammar." Language in the Nebraska Constitution says those convicted of a felony cannot vote "unless restored to civil rights." And because of the use of the plural "rights," they argue, restoring a singular civil right (the right to vote) is impermissible without also restoring other rights, like the right to serve on a jury or hold public office.
Would-be voters: The state's actions led to 'confusing, chaotic' election year
Attorneys for the three Nebraskans with felony convictions said Evnen's and Hilgers' actions have led to a "confusing, chaotic, and unsettling operation of elections."
"On the eve of a presidential election, the Secretary has, without legal authority, upended two decades of rights restoration law, re-disenfranchised thousands of Nebraska voters, and declined to enforce large swaths of Nebraska's election code," the brief stated. "The Court should not countenance this clear violation of legal duty."
The petitioners argue the Nebraska Supreme Court addressed the issue of legislative authority over voter re-enfranchisement in a 2002 case called Ways v. Shivley. In that case, which predated the implementation of LB 53 and the two-year waiting period, the court found that Lincoln man John Ways was ineligible to vote because of his felony conviction.
Core to the petitioner's argument is that the court in its Ways opinion wrote that the "restoration of the right to vote is implemented through statute."
"Because Ways states that voting rights restoration can occur via the legislature, in other words, through 'statute' — and not solely executive action by the Board of Pardons, or any other agency or official— the Re-Enfranchisement Statutes are constitutional," the petitioners brief reads.
Pillen, former secretary of state, others file amicus briefs
Multiple people, including Pillen, submitted amicus briefs to the court. Amicus briefs allow uninvolved third parties with a vested interest in a case to add their arguments for consideration.
Pillen's brief was joined by U.S. Sen. and former Nebraska Gov. Pete Ricketts, former Nebraska Gov. Dave Heineman, and State Sens. Joni Albrecht, Bruce Bostelman, Robert Clements and John Lowe.
"(We) believe that individualized consideration by the Board of Pardons serves an important state interest in discouraging recidivism and promoting rehabilitation," the brief states.
State and national nonprofits also submitted amicus briefs. The Nebraska Criminal Defense Attorneys Association and the National Probation and Parole Association submitted briefs arguing in support of the petitioners and against Evnen.
Former Nebraska Secretary of State John Gale also joined in an amicus brief in support of the petitioners alongside State Sen. Justin Wayne.
"County election officials currently face the impossible dilemma of being required by law to facilitate registration for Nebraskans with past convictions who have completed their sentences, while also being required to comply with Respondent Evnen's directives," the brief says.
What you missed last week in notable Omaha crimes and court casesLast week's local crime and court updates from The World-Herald.
Top StoryThe teenager's arrest stems from the shooting death of Mursal Jama southwest of the 90th and Maple Streets intersection late Tuesday night.
Top StoryThe arrest of the boys, who range in age from 11 to 17 years old, stems from the shooting death of 64-year-old Mursal Jama in west-central Omaha late Tuesday night.
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Top StoryAn 18-year-old Omaha man will spend more than 60 years in prison after being convicted of first-degree murder and three other felonies for the 2021 killing of 14-year-old Isabella Santiago.
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