There is a brewing crisis of democracy in Nebraska. No, not the kind involving lies about stolen elections or outlandish conspiracies, but a more subtle and strategic crisis wherein one branch of government seizes the mechanisms of institutional power to suppress the voice of the people.
We see this crisis emerge in the actions of Attorney General Mike Hilgers and Secretary of State Bob Evnen, who have injected themselves into the state’s voter registration process by unilaterally voiding democratically enacted laws.ÌýOf course, this is all happening in the lead-up to a pivotal November election.Ìý
For nearly 20 years, state law has permitted Nebraskans with felony convictions to re-acquire their right to vote two years after completing the terms of their criminal sentence. , state lawmakers amended that law to eliminate the two-year waiting requirement. LB20 became law signature. In a public statement, Pillen wrote that Hilgers and Evnen “have identified significant potential [constitutional] infirmities regarding [LB20].â€Ìý At no point during LB20’s progression through the Legislature, however, had the executive branch Ìý
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Voting rights advocates began preparing for thousands of Nebraskans to regain their rights. Yet, two days before LB20 was to take effect, Hilgers issued a non-binding opinion, declaring the law unconstitutional. Evnen ordered county officials to stop registering those with felony convictions, , despite its non-binding nature.Ìý
Hilgers and Evnen defended their actions in this very newspaper (), claiming the oath they take to “support the constitution of the United States, and the constitution of the State of Nebraska†requires them to refuse to implement laws they believe to be unconstitutional. But Hilgers and Evnen are not defending abstract visions of the constitution in which they have no vested interest. Instead, they are attempting to impose their own vision of the constitution on the state — a vision that gives them more power with less oversight.
Ordinarily, an executive official who believes a law is unconstitutional challenges the law in the courts by filing a lawsuit. The reviewing court then can consider competing legal arguments and exercise its judicial power to uphold or strike down the law. That isn’t what happened here.ÌýÌý
Instead, Hilgers and Evnen have taken the position that they have the authority to invalidate a state law that they believe is unconstitutional. If members of the public disagree with their view, they can sue to reinstate the law.ÌýÌý
This is not a costless change. By adopting a “so-sue-me†approach, Hilgers and Evnen have shifted the burdens of challenging each unilateral deprivation of a legislatively granted right to those who wish to exercise those rights. Here, those burdens land on Nebraskans who have recently completed criminal sentences and wish to rejoin our political community — people who already successfully advocated for their position before the Legislature. But it seems democracy is not enough. Now, they must undertake the costly and time-consuming burden of suing the executive branch.Ìý
In truth, however, neither the attorney general’s nor the secretary of state’s oaths of office give Hilgers and Evnen the authority to unilaterally declare our state’s laws unconstitutional. All “[e]xecutive and judicial officers and members of the legislature†are constitutionally required to take the exact same oath. Not only that, Nebraska law requires all other “state, district, county, precinct, township, municipal, and especially appointed officers†to swear to uphold the constitution. Accepting this oath-based argument at face value, then, would introduce an exceptional form of nullification where state officers and employees decide for themselves whether to follow state law.Ìý
This version of nullification says any executive officer throughout the state has the authority to set aside state law if that law does not live up to their own interpretation of the constitution. This version of nullification says that there’s no need for an executive officer to seek judicial review of a law they perceive as unconstitutional. It doesn’t take a vivid imagination to see how this sweeping vision of nullification could be abused.Ìý
The oaths sworn by the attorney general and the secretary of state are not special, they are not unique, and they do not give either of them special authority to declare validly enacted laws unconstitutional by executive fiat. Worse, their claim implies that hundreds of public officials, from civil servants to political appointees, could — and, in fact, mustÌý— ignore state laws. This level of nullification simply cannot be how we want our government to function.Ìý