Nebraska Supreme Court Restores Voting Rights for Convicted Felons

A box of ballots in Omaha, Neb., on Oct 2, 2024. John Fredricks/The Epoch Times

Nebraska election officials must register people with felony convictions to vote, the state’s highest court has ruled.

In a decision issued on Oct. 16, the Nebraska Supreme Court ordered the state to reverse course and follow laws allowing people who have completed all terms of their felony sentences to vote, provided they also meet other eligibility criteria.

The dispute revolves around two voting laws. The first, a 2005 statute known as LB 53, allows former felons to vote in elections two years after completing their sentences. A more recent law, LB 20, eliminates that waiting period.

In July, Nebraska Secretary of State Robert Evnen instructed county election officials not to register voters under LB 20. He also paused new voter registrations under LB 53 but didn’t go as far as to remove those already registered under the 2005 law from voter rolls.

Evnen based his directive on the advice from Nebraska Attorney General Mike Hilgers, who described both LB 53 and LB 20 as unconstitutional. The power to restore voting rights for felons, Hilgers argued, lies exclusively with the executive branch—specifically, the state’s Board of Pardons, not the legislative branch.

The Board of Pardons consists of three members: Hilgers, Evnen, and Gov. Jim Pillen, who allowed LB 20 to become law without his signature after the state Legislature overwhelmingly approved the bill in April.

“LB 20 and the statutes it amends violate the separation of powers,” Hilgers said in his advisory opinion. “By restoring the franchise for felons, the Legislature impermissibly arrogated the Board of Pardons’ executive power to itself.”

However, Evnen and Hilgers were unable to secure enough support from the Nebraska Supreme Court on the constitutional question. Under the Nebraska Constitution, at least five of the seven Supreme Court justices must agree to declare a law unconstitutional.

“No legislative act shall be held unconstitutional except by the concurrence of five judges,” the high court said in the unsigned opinion. “In this case, ... fewer than five judges find that the reenfranchisement provisions of LB 20 are unconstitutional.”

The Nebraska chapter of the American Civil Liberties Union (ACLU) hailed the ruling as a victory for disfranchised voters. In this case, the advocacy group represented three individuals with felony history: a Democrat, an independent, and a Republican who has a federal conviction that cannot be pardoned by the Nebraska Board of Pardons.

According to the Nebraska ACLU, Evnen’s directive could have prevented an estimated 7,000 otherwise eligible voters from voting in the upcoming election.

“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,” Jane Seu, the ACLU attorney who argued the case, said in a statement.

“We live in every part of the state, and the truth is most of us are just trying to live our lives and leave the past behind us,” Jeremy Jonak, the Republican plaintiff, said in a statement shared by the Nebraska ACLU. “Thanks to this decision, we get to have a say as part of our communities.”

Evnen’s and Hilgers’ offices didn’t respond to requests for comments.

The schedule for those registering to vote under LB 20 is tight. They have until Oct. 25 to register in person at their county’s election commission office if they want to vote in the Nov. 5 election. Early voting is already underway.

Nebraska and Maine are the only states that do not use a winner-take-all system to allocate electoral votes. Two of Nebraska’s five electoral votes go to the candidate who wins the statewide popular vote, while the remaining three are awarded to the winners of each of the state’s three congressional districts.

While Nebraska generally leans Republican, its Second Congressional District—which includes Omaha—has been known to swing Democratic, as it did in 2008 for Barack Obama and in 2020 for Joe Biden.

That single electoral vote, often referred to as the “blue dot,” could be vital to Democratic presidential nominee Vice President Kamala Harris.

In a scenario in which Harris wins Michigan, Pennsylvania, and Wisconsin, she could get the 270 votes needed with this one Nebraska vote, avoiding the need to carry any of the Sun Belt swing states such as Arizona, Georgia, Nevada, or North Carolina.