Nebraska Supreme Court Spanks Attorney General, Orders Felons Be Allowed to Vote
Voting rights for Nebraskans with felony convictions were up in the air until October 16, 2024. That’s when the state Supreme Court ruled against Attorney General Mike Hilgers (R), who had declared a new re-enfranchisement law unconstitutional and refused to enforce it. The Court said it was Hilgers’ action which was unconstitutional, since he did not have unilateral authority to make a constitutionality determination. As a result, he was ordered to comply immediately with the law and register the former prisoners to vote in the November 2024 elections.
When state lawmakers passed Legislative Bill (LB) 20 in April 2024, they amended provisions governing voting rights of former prisoners released from sentences imposed for felony convictions. As the state Supreme Court recalled, these provisions have changed over time; the state’s 1875 constitution disenfranchised felons for life, unless pardoned, but by 2005, re-enfranchisement was automatic two years after release from prison and any period of parole. LB 20 removed that two-year wait entirely.
Demonstrating remarkable political courage, Gov. Jim Pillen (R) refused to either sign or veto the bill. That allowed the legislation to take effect in July 2024. But just before that, Hilgers weighed in with his advisory opinion that both LB 20 and the 2005 statute were unconstitutional, arguing that only the state Board of Pardons has authority to restore civil rights, not the legislature. Secretary of State Bob Evnen then instructed county officials across Nebraska to stop registering anyone with a felony conviction who had not been pardoned.
That left some 7,000 state residents released from felony sentences stuck in legal limbo. Civic Nebraska, a nonprofit forced to cancel voter registration drives due to the uncertainty, filed a petition for a writ of mandamus in the state Supreme Court on July 29, 2024. They were joined by three released felon co-Relator/Plaintiffs and the state chapter of the American Civil Liberties Union (ACLU) and Evnen and officials of two counties were named as respondents.
Relator/Plaintiff Jeremy Jonak said that by serving out his sentence for a felony conviction, he deserved the right to participate again in the democratic process. “Once someone has done their time, they deserve a second chance,” he said.
Ultimately, that was not the argument that swayed the state Supreme Court. Rather, the Justices decided to evaluate the merits of Hilgers constitutionality argument. They began by noting that in most cases such a review proceeds independently of any prior court rulings in a case. Here, where the mandamus action began in the same Court, it would do the same thing.
The Court then proceeded to dismiss Hilgers’ objection that Civic Nebraska lacked standing to file for the writ. Under the facts as stipulated by both parties, Jonak and his fellow felon relator, Gregory Spung, “clearly have standing to seek mandamus,” the Court said.
Next the Court made short work of Hilgers’ constitutionality argument. The case “implicates article V, § 2, of the Nebraska Constitution,” which provides in relevant part that “[n]o legislative act shall be held unconstitutional except by the concurrence of five judges,” the Court noted. Since Hilgers’ failed to show that this condition was met, his argument failed.
The Court further found that Relators were entitled to mandamus relief “for essentially the same reasons” in their request to order Evnen to “effectuate the automatic removal of disqualification of eligibility.” Since removal is by definition automatic, the Court said it didn’t need to order Evnen to do more than “remove any disqualification on registration he has imposed” in communications with election officials already.
Several concurring Justices wrote that they would have issued the writ without reaching the merits of the constitutionality argument. Accordingly, the Court issued the peremptory writ directing Respondents “to immediately comply with L.B. 20.”
Relators were represented by ACLU-Nebraska attorneys Rose Godinez, Jane Seu, Grant Friedman and Dylan Severino, along with attorneys Jeffrey P. Justman, Craig Coleman, Martin S. Chester, Anderson C. Tuggle and Joe Quinn of Faegre, Drinker, Biddle & Reath, L.L.P., and ACLU Foundation attorneys Jonathan Topaz and Sophia Lin Lakin. See: State ex rel. Spung v. Evnen, 317 Neb. 800 (2024).
Additional sources: New York Times, The Sentencing Project
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