The Nebraska Supreme Court has set arguments later this month in a case over the constitutionality of a law intended to restore voting rights to felons in the state.
“The state Supreme Court’s decision to hear our case underscores the critical nature of our efforts to challenge barriers to voting and protect the fundamental right of all citizens to participate in our democracy,” Civic Nebraska, a nonprofit that advocates for voter protections, said in an email.
Last month, two days before LB20 was set to take effect, Attorney General Mike Hilgers issued a nonbinding opinion that it was unconstitutional, saying the power to restore voting rights to Nebraskans with felony convictions lies exclusively in the Board of Pardons, part of the executive branch.
The same day, Secretary of State Bob Evnen directed local elections offices to refuse voter registrations for anyone with a felony record if the voter had not been pardoned, in line with the opinion.
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On July 29, the ACLU of Nebraska petitioned the state’s high court on behalf of three men — two from Omaha and one from Wood River — and Civic Nebraska seeking to block Evnen from automatically disqualifying convicted felons from the voter rolls if they hadn’t been pardoned.
Attorney Jane Seu said Evnen’s actions have dramatically upended two decades of election law less than four months before the November general election.
“This case is about the fundamental right to vote, a cornerstone of our democracy,” she said.
This spring, the state lawmakers passed LB20, restoring voting rights to thousands of Nebraskans who have been convicted of a felony and completed their sentences.
Before that, there had been a two-year waiting period since 2005.
Hilgers said both were unconstitutional, which prompted Evnen’s actions that are the subject of the petition before the Supreme Court.
The Campaign Legal Center, a government watchdog nonprofit, has estimated Evnen’s actions would affect about 59,000 Nebraskans.
Seu took issue with Evnen’s contention that the attorney general has the unilateral authority to invalidate the law and other statutes that have been on the books since 2005 and to refuse to comply with duly enacted Nebraska statutes.
“That remarkable, unprecedented, and unlawful action prompts this lawsuit,” she said.
Evnen, who is represented by Solicitor General Eric Hamilton of the Attorney General’s Office, has asked the Supreme Court to find the statutes at issue unconstitutional.
He said based on the opinion, Evnen believes the reenfranchisement statutes are unconstitutional.
“A peremptory writ would compel Secretary Evnen to perform an illegal act,” Hamilton wrote.
The Supreme Court has set the case for oral arguments during the call that runs Aug. 27-29.
Hilgers’ opinion said that LB20 and LB53, the 2005 law that predated it, violate the separation of powers clause in the Nebraska Constitution. The opinion concluded that only the Board of Pardons could restore voting rights to an individual convicted of a felony.
“Restoration of the right to vote is not within the Legislature’s power to impose penalties — it is set by the Constitution and can be repealed only by the people,” the opinion reads.
Evnen, who is on the Pardons Board, has said that at the Aug. 20 meeting, he intends to request the restoration of voting rights for currently registered voters with felony convictions who were properly registered under LB53.
If the Supreme Court were to find the laws unconstitutional, Nebraska would become one of the strictest states in the nation when it comes to felon voting rights.
Those with felony records no longer would be allowed to register to vote unless they’ve been pardoned, no matter how long it’s been since they completed their sentences.
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