For thousands of people with past convictions in Nebraska, their right to vote is now in doubt. In an unprecedented move, the attorney general and secretary of state are attempting to nullify two laws enacted by the legislature that restored voting rights to people who have completed their sentences — one of which has been in effect for nearly two decades.
Their attempt to roll back the right to vote for Nebraskans with past convictions is out of step with most of the country, which has been moving towards letting more Americans participate in democracy, not fewer. These actions come after years of pushback from Nebraska governors and attorneys general against the legislature’s efforts to restore the right to vote. Worse yet, the decisions by both officials are creating widespread uncertainty about the voting eligibility for people with past convictions. Early voting is set to begin in October, leaving less than three months for the state to clarify the confusion created by these two officials.
This most recent conflict between the legislature and top state officials began in April. Nebraska’s unicameral, nonpartisan legislature approved a bill allowing people with felony convictions to have their voting rights restored as soon as they complete their sentence instead of waiting for two years under a 2005 policy.
Nebraska Attorney General Mike Hilgers (R), like his predecessors, argues that the state’s constitution only permits the board of pardons to re-enfranchise people with past convictions, a bad faith reading of the constitution. But that argument finds no support in the document’s text. Indeed, nowhere in the constitution does it say that only the board of pardons retains that power. The constitution only provides that “no person shall be qualified to vote who . . . has been convicted of . . . [a] felony … unless restored to civil rights” and it empowers the board of pardons to “grant respites, reprieves, pardons, or commutations.” Thus, the constitution does not restrict the legislature’s authority to restore voting rights, nor does it assign that authority to any particular branch of government. Even the Nebraska Supreme Court has acknowledged that voting rights restoration “is implemented through statute,” meaning through legislation.
For decades, Nebraska permanently disenfranchised everyone convicted of a felony. But in 2005, the legislature passed Legislative Bill 53, which repealed lifetime disenfranchisement and provided for the automatic restoration of voting rights two years after completion of sentence. The governor at the time vetoed the bill, but the legislature overrode his veto.
Later, in 2017, the legislature sought to get rid of Nebraska’s two-year waiting period, passing L.B. 75, which would have provided for the automatic restoration of voting rights upon completion of sentence. But the governor at the time vetoed the bill, and the legislature’s attempt to override his veto failed. That effort was attempted again this year, with the legislature passing L.B. 20. Gov. Jim Pillen (R) declined to sign or veto L.B. 20, allowing it to become law. Pillen, however, did issue a statement suggesting the law was unconstitutional and encouraging the attorney general and secretary of state to “promptly take such measures as are appropriate in light of the [bill’s potential] constitutional infirmities.”
Last week, one day before L.B. 20 was scheduled to take effect, Attorney General Hilgers issued an advisory opinion concluding that both L.B. 53, the law imposing the two-year waiting period, and L.B. 20, the law getting rid of it, are unconstitutional. He reasoned that Nebraska’s constitution authorizes the state’s board of pardons, not the legislature, to restore voting rights. This argument, as discussed above, is not supported by the constitution. No court has ruled on L.B. 20 or L.B. 53, and these laws still remain in effect. Yet Secretary of State Bob Evnen (R), falling in line with Hilgers, told local election officials to stop registering people with felony convictions unless their voting rights have been restored by the pardons board.
Evnen and Hilgers now find themselves in a bind. Both oppose the legislature’s authority to restore voting rights, but the legal rationale against it would invalidate a law that’s been in effect for 19 years. So, Evnen announced that he “does not intend to remove voters with felony convictions from the voter registration system,” adding that he plans to ask the pardons board — comprised of him, the attorney general, and the governor — to restore the right to vote for people who registered under the two-year waiting period law at the board’s next meeting on August 20.
The actions by Hilgers and Evnen seek to disenfranchise not only a population of voters who would have become eligible under this year’s law, but also voters who have been eligible to vote under the previous law that has been on the books for 19 years. The actions by Hilgers and Evnen also put people who are uncertain about their eligibility at risk of prosecution for mistakenly registering to vote or casting a ballot while ineligible. All of this is causing immense confusion for affected voters and the election officials charged with administering the voting process.
Nebraska isn’t the only state facing a significant rollback of rights restoration in the last week. The same day L.B. 20 was supposed to take effect, the full U.S. Court of Appeals for the Fifth Circuit, on a 13–6 vote, upheld Mississippi’s lifetime disenfranchisement policy, a relic of the Jim Crow era. The full court overturned the decision of a three-judge panel that held last year that Mississippi’s policy of permanently disenfranchising people convicted of certain felonies violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The majority opinion from the full Fifth Circuit reasoned that it was the legislature that should be the final arbiter on rights restoration, not the courts, writing that “the changes sought by Plaintiffs here can and must be achieved through public consensus effectuated in the legislative process, not by judicial fiat.”
In Nebraska, it was the legislature, acting as representatives of the public, that made the move to restore voting rights back in 2005 and again this year. And it’s the attorney general and the secretary of state who do not have authority to nullify L.B. 20, that are undermining the will of the people. But the attorney general’s advisory opinion and the secretary of state’s actions have unleashed chaos in Nebraska.
Meanwhile, states across the country are moving in a different direction, expanding access to the ballot for people with past convictions. Since 2018, 14 other states and Washington, DC, changed their policies to include more people with past convictions in our democracy. And this year, Oklahoma enacted a law that will do the same when it takes effect next year.
Instead of taking Nebraska back decades and setting up an unwieldy system for restoring voting rights, the state must recognize the voting eligibility of all citizens who have completed their sentences ahead of the fall. And it must do so in time for the 2024 election.
