The Nebraska Supreme Court heard arguments Wednesday in a case that could upend voting rights for tens of thousands of people convicted of felonies in the state and threaten a law that’s been on the books for nearly two decades.
The court hearing over the constitutionality of two laws restoring voting rights for felons in the state was frequently steeped in legal minutiae – with debates between the attorneys and the seven-justice court over the text of 1800s-era state statutes and the breadth and authority of the powers of the state’s pardon board. But the decision in the case could have far-reaching implications for thousands of would-be voters in Nebraska and beyond with the 2024 presidential election less than 70 days away.
While Nebraska votes reliably Republican in state and federal elections, it’s one of two states that allocates electoral votes by individual congressional districts. And Nebraska’s Omaha-based 2nd Congressional District is competitive: President Joe Biden won the district in 2020 by about 22,000 votes, while former President Donald Trump won it by just over 6,500 votes in 2016.
In April, the state legislature, which is controlled by Republicans, passed a bill, 38-6, restoring voting rights to felons after they completed their prison sentences. The statute expanded upon a 2005 state law that had restored voting rights to felons two years after their sentences had ended.
But last month, two days before the new law took effect, Nebraska Attorney General Mike Hilgers, a Republican, issued an advisory opinion that the 2024 law – as well as the 2005 law – were both unconstitutional, arguing that the power to restore voting rights to felons in Nebraska resided solely with the state’s board of pardons, not the legislature.
That prompted Republican Nebraska Secretary of State Bob Evnen to tell county election officials to stop registering convicted felons who have not been pardoned.
In response, the American Civil Liberties Union of Nebraska sued on behalf of three individuals who had completed their prison sentences, asking the courts to compel Evnen to comply with the law.
Voting rules for felons vary state-by-state, but most states provide those convicted of felonies a path to voting rights after they complete their sentences. Over the past three decades, voting rights for felons have been expanded in more than two-dozen states, including Nebraska, according to the Sentencing Project. More than 70,000 people convicted of felonies had their voting rights restored in Nebraska as a result of the 2005 law, according to the ACLU’s written brief.
Across the country, there is bipartisan support for restoring the voting rights of people convicted of felonies. But the Nebraska case is the latest example of Republican politicians seeking to undermine such measures, resulting in high stakes legal battles.
Ironically, Trump has benefited from the push to restore franchise for felons, as he will be able to cast a ballot in Florida this fall because of a relatively recent New York law that made it easier for people with felony convictions to regain their voting rights.
At Wednesday’s oral arguments, ACLU attorney Jane Seu argued that the court should compel the secretary of state to comply with the law passed by the legislature. Seu’s argument focused on both the constitutional question that the legislature has the power to pass laws restoring voting rights and also the fact that the secretary of state and attorney general unilaterally declared the law unconstitutional, arguing that question should be decided by the judicial branch.
“The secretary here made a unilateral determination on his own to declare our statutes unconstitutional,” Seu said. “The court should correct this overreach.”
Nebraska Solicitor General Eric Hamilton later responded that there was precedent in the state for executive officials not to enforce statutes that are unconstitutional.
“My client has always recognized that this has to be decided by the courts, but certainly in recent decades, the practice has been for officials to make a good-faith judgement that a statute is unconstitutional,” Hamilton said.
After the bill passed the legislature, Republican Gov. Jim Pillen did not sign or veto it, allowing it to become law. But he issued a statement saying there were “potential constitutional issues” with the bill and asking the attorney general and secretary of state to “promptly take such measures as are appropriate in light of the constitutional infirmities.”
In July, Hilgers issued the advisory opinion that both laws were unconstitutional, throwing into doubt the voting rights of thousands of former felons who had registered to vote in the 19 years since the 2005 law was passed.
“What separates felons who may show little intent to re-engage with civil society from those who have truly turned their lives around can be assessed only on an individualized basis. The Constitution vests the power to restore rights in the Board of Pardons, which does just this individualized review,” Evnen and Hilgers wrote in a joint op-ed this week ahead of the court hearing.
