Nebraska spars with ACLU over felon voting rights

(CN) — The Nebraska Legislature twice violated the state constitution when it restored voting rights to felons who had not been pardoned, once in 2005 and again earlier this year, the state argued in front of the Nebraska Supreme Court on Wednesday.

“They unconstitutionally exercise the Board of Pardon’s exclusive authority to grant clemency,” Nebraska Solicitor General Eric Hamilton told justices, defending Nebraska Secretary of State Robert Evnen's July 17 instruction to local election officials to stop registering voters with past felony convictions. “These statutes are unconstitutional.”

American Civil Liberties Union attorney Jane Seu, representing nonprofit Civic Nebraska and three individuals with felony convictions who had hoped to vote in the upcoming general election, argued to the justices that Evnen had no authority to issue such an instruction in the first place.

“Nebraska statutes enjoy a presumption of constitutionality. The secretary here made a unilateral determination on his own to declare our statutes unconstitutional,” Seu told the justices. “The court should correct this overreach.”

Evnen’s directive was prompted by an opinion issued by Nebraska Attorney General Mike Hilgers, also on July 17, two days before Legislative Bill 20 was set to take effect.

In his 18-page opinion, Hilgers deemed the new voting rights law — passed by the Cornhusker State's unicameral legislature in April and which allowed people convicted of felonies to regain their voting rights immediately after completing the terms of their sentence, including probation and parole — unconstitutional.

Hilgers said only the Nebraska Board of Pardons had sole authority to restore voting rights to people convicted of felonies and said restoration of that right is “an act of grace that undoes a legal consequence of a crime.”

The Board of Pardons is made up of three members: Hilgers, Evnen and Nebraska Governor Jim Pillen.

The bill eliminated the waiting period previously required for people with felony convictions under the terms of LB 53, which was enacted in 2005 and allowed Nebraskans to vote two years after completing a criminal sentence.

Seu described the case filed in July as a mandamus action in her remarks on Wednesday. She said the state legislature had placed a clear duty on Evnen to allow Nebraskans with felony convictions to vote once they completed their sentences, “which the secretary all but admits he’s not fulfilling,” she said.

And prior case law shows the restoration of voting rights is implemented through statute, Seu said. She argued the restoration of voting rights granted by the bill does not amount to a pardon.

Early in Seu’s arguments, Justice William B. Cassel, asked her what Evnen should have done instead.

“If the secretary really, really, believed there was a constitutionality issue here, he could have brought his own action and brought that properly,” Seu said. “Again, the burden would be on him to overcome that presumption.”

Chief Justice Michael G. Heavican asked her if the legislature could say that people could never lose their right to vote. She said there are two states where incarcerated felons can still vote.

“Could the Legislature say you can participate on juries even if you are in the penitentiary?” Heavican asked.

“I think it could,” Seu said. “It just does not rise to a pardon.”

The justices also asked Hamilton, the solicitor general, about the 2005 law, and if the fact that it had been on the books nearly two decades years mattered. He cited 19th century state law and the 1875 adoption of the Nebraska Constitution, and state law that dated back even before that.

“The last 19 years are contrasted against 130 years of unbroken practice in this state of re-enfranchisement through executive clemency,” he said. "And we cite a lot of the authority from the time of ratification of our constitution, which shows the understanding that the restoration of civil rights happens through clemency.”

In 1873, two years before the constitution was ratified, he said, the state enacted a statute that stated the right to vote was restored through a general pardon.

Only the executive branch can grant a pardon, Hamilton said. And Evnen had a duty, he added, "to make a good faith determination that the statute is unconstitutional."

The court may have to issue a decision soon, in time for the 2024 general election. Oct. 18 is the last day to register online and Oct. 25 is the last day to register in person.

Nebraska is one of two states to award electoral votes by both statewide popular vote and by congressional district. And the 2nd District, which includes Omaha, the state’s largest city, is considered a swing district.

In most past elections, Nebraska’s electoral votes have gone to the Republican candidate, but Barack Obama won the 2nd District in 2008, as did Joe Biden in 2020, each picking up a single electoral vote.

A poll earlier this month by the Remington Research Group, a conservative pollster, put Democratic nominee Vice President Kamala Harris ahead of GOP nominee Donald Trump, 50% to 42%, though the poll had a nearly 4% margin of error, the nonprofit news outlet Nebraska Examiner reported.

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