The Nebraska Supreme Court ordered the state’s Secretary of State to implement Legislative Bill (LB) 20 on Wednesday, providing for the automatic restoration of voting rights for felons in Nebraska upon completion of their sentence.
Nebraska Secretary of State Robert Evnen had refused to implement the statute after it passed in the Nebraska Legislature, directing election officials to stop registering felons who have not been pardoned by the Nebraska Board of Pardons and challenging the law as unconstitutional. Following Evnen’s order, a case was filed by the American Civil Liberties Union (ACLU) in July 29, alongside several individual plaintiffs and Civic Nebraska. ACLU of Nebraska’s legal and policy counsel, Jane Seu stated:
It is hard to overstate how much is at stake. Unless the courts step in, our state’s top elections official will stop our clients and thousands of other Nebraskans from having a say in this November’s election. These are Nebraskans who have done their time, who by state law have a right to vote, and who are working, paying taxes and contributing to our communities. We are confident in the constitutionality of the laws that these officials want to ignore, and we are ready to make our case to make sure that every eligible voter can participate in our democracy.
LB20 passed the Nebraska Legislature in April, replacing LB53, the 2005 law that repealed lifetime disenfranchisement for convicted felons and automatically restored voting rights for felons two years after completing their sentences. In his order, Evnen claimed that both LB20 and LB53 were unconstitutional based on an advisory opinion by Nebraska Attorney General Mike Hilgers.
Under article IV-13 of Nebraska’s constitution, the power of pardon is vested in the Board of Pardons under the executive branch. According to Hilgers, because the loss of voting rights is a consequence of a felony, the power to restore the rights of felons to vote would be an act of pardon that would be exclusively within the powers of the Board of Pardons. As such, acts of the legislature such as LB53 and LB20 would violate the constitutional separation of powers in the state.
However, the court disagreed with the opinion, finding that the Evnen had failed to establish the unconstitutionality of LB20’s re-enfranchisement provisions. According to the court, a claim that a statute is unconstitutional in Nebraska faces a high burden of proof due to the presumption of constitutionality of statutes, where a court will “resolve all reasonable doubts in favor of a statute’s constitutionality.” Article V-2 of the Nebraska constitution also sets a high bar for proving unconstitutionality, stating that “No legislative act shall be held unconstitutional except by the concurrence of five judges.” This high burden, as Justice Cassel claims, “should discourage any executive officer, in all but the clearest circumstances, from unilaterally refusing to fulfill a statutory mandate.” Furthermore, the court also disagreed that the civil rights of felons could only be restored via a general pardon, as suggested by the advisory opinion. The court cited that the framers of the 1873 statute which originally disenfranchised felons in Nebraska did not explicitly indicate that re-enfranchisement was exclusively dependent upon executive pardon and that they would not have left “such an important point to implication,” if it was intended.
