State Supreme Court says Nebraskans with felony convictions are eligible to vote in November election
Less than three weeks from Election Day, the Nebraska Supreme Court is directing the secretary of state and election commissioners to "comply in all respects with the provisions of LB20," a law passed by the Legislature this year to restore voting rights to people with felony convictions who have completed their sentences.
In a rare move, the court issued a 90-page decision Wednesday where each of the justices gave separate opinions, just two — Justice Jeffrey Funke and John Freudenberg — dissented.
To find the law unconstitutional, a supermajority of the justices — five of the seven — would have had to have agreed.
Here, only Funke and Freudenberg said they would have found the law unconstitutional.
The state's high court ordered election commissioners to begin registering to vote those who complete the registration application and directed Bob Evnen, the secretary of state, to rescind any direction to election commissioners that said otherwise.
"This is justice," ACLU of Nebraska attorney Jane Seu said Wednesday. "Given the sheer scale of disenfranchisement that this decision corrects, there is no question that it will be remembered as one of our state’s most consequential voting rights decisions."
She said that for Nebraskans who have been caught up in the mess, the key takeaway is this: "If you are done with all terms of your sentence, you are eligible to vote, and there is now a court decision backing that up. Now is the time to know your rights, get registered and make a plan to vote.â€
At a news conference Wednesday held by several advocacy organizations, Jason Kotas spoke on behalf of RISE, a Nebraska nonprofit that supports those leaving prison. He also spoke as someone who spent most of his adult life behind bars for crimes committed while addicted to drugs and alcohol.
“So, I'm 50 years old, and this is the first time in my life I'll be able to register to vote,†Kotas said minutes before walking into the Douglas County Election Commission Office in Omaha to register. “This is a really big deal. I think people who have never lost this right — I don't even think you really understand how important this is.â€
Civic Nebraska, a nonprofit that advocates for voter protections, called it a "big win for democracy in our state."
Nebraska Attorney General Mike Hilgers, whose office argued the law was unconstitutional, said he appreciated the Supreme Court’s consideration of the important issue "and (we) are grateful that the court provided clarity before the election.â€
By mid-afternoon, Evnen said he had directed county clerks and election commissioners to immediately begin allowing those with felony convictions who have completed their sentences to register to vote in accordance with the law.
"The Supreme Court has resolved this issue and we are following the requirements of the decision. With our counties across the state, we are working to ensure that those who were made eligible to register to vote under LB20 may now do so," he said in a statement.
Separation of powers
The case largely came down to an argument over separation of powers.
This spring, state lawmakers passed LB20, restoring voting rights to thousands of Nebraskans who have been convicted of a felony and completed their sentences.
Before that, there had been a two-year waiting period since 2005.
But in July, two days before LB20 was set to take effect, Hilgers issued a nonbinding opinion that it and the 2005 law both were unconstitutional, saying the power to restore voting rights to Nebraskans with felony convictions lies exclusively in the Board of Pardons, part of the executive branch.
The same day, Evnen directed local elections offices to refuse voter registrations for anyone with a felony record if the voter had not been pardoned, in line with the opinion.
The ACLU of Nebraska lawsuit followed.
In it, the group petitioned the state's high court on behalf of three men — two from Omaha and one from Wood River — and Civic Nebraska, seeking to block Evnen from automatically disqualifying convicted felons from the voter rolls if they hadn't been pardoned.
Represented by the Attorney General's Office, Evnen's sole defense was that he believed LB20 to be unconstitutional, so he would be violating the law if he followed it.
Expedited timeline
Working on an expedited timeline, the Supreme Court heard arguments in the case in August, after taking it as a direct filing rather than it first being heard by a district court judge.
Chief Justice Michael Heavican expressed concerns about the relatively short time frame between the case being submitted to the court and the onset of deadlines related to this year's general election.
Early voting started Oct. 7. The deadline to register to vote online or by mail is Friday, and the deadline to register in person is Oct. 25. The election itself is Nov. 5, just 20 days away.
"We recognize the importance of the issue this case presents, but under the circumstances, I am not confident that we have given, or were able to give, this important issue the attention and consideration it deserves in advance of the deadlines for voter registration," he wrote.
Heavican said he declined to reach the conclusion that the provisions of LB20 are unconstitutional based on the record before him and the other justices.
Justice Lindsey Miller-Lerman said she wrote separately, at the risk of seeming impolite, because of her belief that the separation of powers issue in the case "includes not only the obvious tension between the executive and legislative branches, but also the tension between the executive and judicial branches."
"I believe the true separation of powers story of this case is ultimately the preservation of the judiciary’s power, including the power to declare what statutes are constitutional," she wrote in an opinion agreeing with the majority decision but dissenting in how they arrived at it.
Miller-Lerman said the restoration of voting rights by the Legislature wasn't a full restoration of civil rights or a full pardon, which is reserved to Nebraska’s Board of Pardons in the executive branch.
"An opinion that would find the statutes unconstitutional would not protect separation of powers, but contrary to the constitution, would enable consolidation of power in the executive branch. If the statutes were declared unconstitutional as urged by some members of the court, the elected officials would choose their voters instead of the other way around," she wrote.
Miller-Lerman also questioned the timing of the attorney general's nonbinding opinion and Evnen's directive to reject voter registrations, which came two days before LB20 would have gone into effect and nearly two decades after LB53 was passed in 2005 providing those with felony convictions a two-year waiting period before restoring their right to vote.
"Why now? Why not take the opportunity to challenge the laws long ago with available remedies, rather than creating uncertainty at this time? Why did the court enable the tardiness by expanding mandamus?" she asked.
Constitutional challenge
Justice Stephanie Stacy pointed out that statutes governing felon reenfranchisement have existed in Nebraska in one form or another for more than 150 years. But this case was the first to raise a separation of powers challenge to the constitutionality.
In his dissent, Justice Funke said, assuming the statutes could have been challenged at some earlier time, he didn't see the legal relevance.
He said he would've found the reenfranchisement provisions of LB20 unconstitutional.
Funke said all members of the court are "cognizant of the importance of the right to vote and the implications of our decision upon the potential ability of Nebraskans to exercise that right. "
He said the issue didn't hinge upon their views as to the merits of reenfranchisement, but instead on constitutional interpretation.
Funke said that by giving the power to grant pardons to the Board of Pardons, the Nebraska Constitution granted them the power to eliminate legal consequences of convictions "and, more specifically, the power to restore felons’ right to vote."
He said he would find that the separation of powers prohibits the Legislature from exercising the same power.
Freundenberg said it was the second time this year the court "has failed to protect the Nebraska Constitution's separation of powers," citing a decision in March involving a motion for a deferred sentence.
"I unfortunately find myself again dissenting in a case where this court is empowering the Legislature to exercise the pardon power exclusively granted by our constitution to the executive branch. I believe that our duty to protect and preserve the separation of powers mandated by the Nebraska Constitution demands better," he wrote.
On Wednesday, Sen. Justin Wayne of Omaha, the bill's sponsor, said the ruling reinforced the fundamental principle that nobody is above the law, and the secretary of state isn't free to disregard laws passed by the Legislature.Â
“The Attorney General’s opinion is just that — an opinion. It is non-binding, and the Legislature, as the body representing the people of Nebraska, must maintain its independence and ensure that laws passed by the people’s representatives are respected and upheld,†Wayne stated.
The Nebraska Voting Rights Restoration Coalition said its partners were gearing up to help register voters whose rights have been in limbo.
"From now until 6 p.m. Oct. 25 — the very last moment Nebraskans can register to vote in the Nov. 5 general election — our partners are committed to reversing the harm and confusion resulting from the attorney general’s opinion and the secretary of state’s directive,†the group said in a press release.
Jeremy Jonak, an Omaha man named in the lawsuit, said he was ecstatic about the ruling.
"For so long, I was uncertain if my voice would truly count under this law. Today’s decision reaffirms the fundamental principle that every vote matters. It’s a victory not just for me, but for thousands of Nebraskans who can now exercise their right to vote with confidence,†he said.
Here is the Lincoln Journal Star's comprehensive guide to the 2024 Nebraska general election.Â
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The Associated Press contributed to this story.