Nebraska Supreme Court hears arguments on felon voting law
The bench of the Nebraska Supreme Court at the Capitol in Lincoln. (Aaron Sanderford/Nebraska Examiner)
LINCOLN — Nebraska Supreme Court justices on Wednesday peppered lawyers from the ACLU and the Nebraska Attorney General’s Office with questions about whether the Legislature has the constitutional authority to restore the voting rights of people who committed felonies.
During the oral arguments, justices probed whether that power is instead reserved for the executive branch via the Pardons Board, which was the argument advanced in an advisory opinion by Attorney General Mike Hilgers.
Some justices asked whether the court should consider the broader constitutional question on voting rights and pardons or decide only whether Secretary of State Bob Evnen had the authority to avoid implementing a law the Legislature passed this spring.
Justice William Cassel seemed to hint in his questions that the broader issue might need resolving. But others, including Stephanie Stacy and retiring Chief Justice Mike Heavican, seemed open to a narrower approach.
Questions for ACLU lawyer
Justice Lindsey Miller-Lerman pressed Jane Seu, the legal and policy counsel for ACLU Nebraska who represented three Nebraskans seeking to register to vote in 2024, about whether Hilgers missed a step and whether he should have filed a separate lawsuit pushing Evnen to halt implementation of Legislative Bill 20. Other justices questioned who Hilgers would sue.
Seu did not directly address whether the executive branch should have had to sue separately to stop LB 20. But she argued that in the absence of a court ruling on the constitutionality of the statute, Evnen should have implemented the law.
She argued that years of established law and practice showed that the Legislature has the authority to change the timing of when people who have committed felonies can vote. She said the Legislature sets criminal penalties and voting laws and has the authority to adjust both.
“Nebraska statutes enjoy a presumption of constitutionality,” Seu told the justices Wednesday. “The secretary here made a unilateral determination on his own to declare our statutes unconstitutional. The Court should correct this overreach.”
LB 20, passed 38-6 this spring, eliminated a two-year waiting period to vote after completion of a criminal sentence, a restoration the Legislature created in 2005 with Legislative Bill 53. Hilgers’ advisory opinion also described LB 53 as unconstitutional.
Evnen spurred the lawsuit by ending all voter registrations of people newly eligible under LB 20 and pausing new registrations of people eligible under the earlier law. He did not purge the voter rolls of others who had registered under the old law.
RISE, a re-entry program for incarcerated Nebraskans and others involved with the justice system, estimates that more than 7,000 Nebraskans could have their voting rights restored by LB 20. LB 53 has allowed tens of thousands to have their voting rights restored sooner since it was enacted.
Solicitor general argues separation of powers
Nebraska Solicitor General Eric Hamilton, representing the executive branch, argued that only the three-member Pardons Board has the constitutional authority to restore a person’s civil rights after commission of a felony. Hilgers and Evnen sit on the board with Gov. Jim Pillen.
Pillen, who agreed with Hilgers and Evnen on the constitutional question about separation of powers and the Pardons Board, refused to either sign or veto LB 20, allowing it to become law without his signature. It became law by a veto-proof majority of state senators.
“LB 53 and LB 20 are unconstitutional,” Hamilton told the justices. “They unconstitutionally exercise the Board of Pardons’ exclusive authority to grant clemency.”
Justice Jonathan Papik questioned whether laws from the late 1800s that spelled out how the process would work might show that the Legislature has a role. He asked where the line should be drawn between legislative authority and a pardon.
Justice Jeffrey Funke asked how the court should weigh the fact that LB 53 has been the law of the land for nearly two decades without a legal challenge.
Hamilton argued that the past 19 years of LB 53 should not overcome 130 years of the state restoring voting rights through executive-granted clemency. He said getting rid of the legal consequences of a crime after someone has been sentenced is a role for the executive branch, not the Legislature.
Wayne weighs in
State Sen. Justin Wayne, an Omaha lawyer, attended the oral arguments. One of the Legislature’s leading voices on the felon voting issue, he expressed frustration after the hearing that some of the arguments drifted too far from the core of the case.
“From 1873, to 1881 and again in 1923, all the way down the road to today, it was a statute that outlined how voting rights were controlled,” Wayne said. “That means the Legislature has the power to do that. It was a statute.”
Wayne said Hilgers had options if he had wanted to sue to keep LB 53 or LB 20 from being implemented. He said Hilgers could have sued Douglas County or Lancaster County for the previous registrations under LB 53 or that he could have sought a declaratory judgment.
By taking executive action, Evnen and Hilgers forced aspiring voters to sue. Wayne criticized the idea that Hilgers and perhaps the courts would put the onus on people affected by an executive action to force them to implement new laws.
“What I am concerned about is if the court says a constitutional officer can just decide that they don’t want to implement the law, and then it requires the citizens to force that issue,” he said. “That’s not what our Constitution is about.”
The founding document of the state is a set of restrictions on government, he said, setting limits on what each branch of government can do. The people, he said, should not carry the burden of policing the state through the courts.
Evnen says he will follow court ruling
Evnen, after the hearing, said he followed Hilgers’ advisory opinion. He said he thinks it’s “important for the court to resolve this issue, and whatever the court decides, that’s what I’m going to do.”
He said the executive branch must consider the constitutionality of laws passed by the legislative branch, which considers the Constitution when it passes laws. He called the judicial branch the “ultimate arbiter of what is and isn’t constitutional.”
“But that doesn’t mean that there isn’t a role for the other two branches,” Evnen said. “There certainly is.”
Seu, in a follow-up interview, said she sees no constitutional issues in LB 20 or LB 53. She said Evnen has a duty to follow the law and that is the case she made. She said Hilgers and Evnen had “other avenues” they could have pursued.
She said the focus should be on the people who were excited to vote who have not been able to register. She disagreed with Hamilton’s assertion that the Legislature’s action to restore voting rights tramples on what is reserved for executive clemency.
“Rights restoration is not, it’s just not a pardon,” she said. “It doesn’t violate separation of powers. There are a number of other states that have this exact same structure like Nebraska, and none of them have found constitutional violations.”
