LINCOLN — The Nebraska Supreme Court on Wednesday heard oral arguments in a case that could determine whether people with felony convictions were properly stripped of their rights to vote.
Attorneys for the American Civil Liberties Union, who represent three Nebraskans seeking to vote in the 2024 election, hope the justices will quickly issue a ruling to alleviate confusion caused by an attorney general opinion issued in July.
Mike Hilgers’ opinion on constitutionality of LB 20 and underlying statutes, as requested by Bob Evnen
The opinion, requested by Nebraska Secretary of State Bob Evnen and requested by Nebraska Attorney General Mike Hilgers, deemed two state laws restoring voting rights — one that has been on the books since 2005 and the other approved this year — to be unconstitutional. In response to the opinion, Evnen changed the language on Nebraska’s voter registration forms and directed county election officials to reject registrations from people with felony convictions.
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A state law enacted in the last legislative session restored the right to vote to people with felony convictions immediately upon the completion of their sentence. Since the passage of Legislative Bill 53 in 2005, people with felony convictions had to wait two years after completing their sentence of imprisonment or probation before they regained the right to vote. The new law, LB 20, eliminated that waiting period.
Nebraska Secretary of State Bob Evnen walks down the hall after the Nebraska Supreme Court heard oral arguments in a case that will determine voting rights for people convicted of felonies at the Nebraska State Capitol in Lincoln on Wednesday, Aug. 28, 2024.
MEGAN NIELSEN, THE WORLD-HERALD
Attorneys for the ACLU are asking the Nebraska Supreme Court to issue a writ of mandamus, a type of court order, directing Evnen to follow the law as written in LB 20 and allow people with felony convictions to register to vote. They say the court doesn’t necessarily need to decide if the two laws are constitutional to issue the order directing Evnen to do his job.
But attorneys for Evnen say he is under no obligation to enforce a state statute that is unconstitutional. They contend the two laws are unconstitutional because restoring the right to vote constitutes a pardon, a power that is reserved for the Nebraska Board of Pardons.
“Automatic voting rights restoration is just not a pardon,” Jane Seu, legal and policy counsel for the ACLU, said after the hearing. “It just doesn’t amount to a pardon. It doesn’t violate separation of powers. There are a number of other states that have this exact same structure as Nebraska, and none of them have found any kind of constitutional violation. “
Jane Seu, legal and policy counsel for the American Civil Liberties Union of Nebraska, speaks to the media after the Nebraska Supreme Court heard oral arguments in a case that will determine voting rights for people convicted of felonies at the Nebraska State Capitol in Lincoln on Wednesday, Aug. 28, 2024.
MEGAN NIELSEN, THE WORLD-HERALD
Wednesday’s arguments lasted about 30 minutes as the justices peppered Seu and Nebraska Solicitor General Eric Hamilton, who is representing Evnen, with questions. Evnen listened intently from the gallery.
Seu said there are are three main reasons why the court should issue the writ of mandamus: Evnen is not fulfilling his duties as required by law; the court’s previous case law dictates that the Legislature has the power to restore voting rights through statute; and legislative acts are entitled to a “strong presumption of constitutionality.”
When justices asked what Evnen should have done if he believed he would be acting in contrast with the constitution by enforcing LB 20, Seu said he should have brought his own lawsuit and let the judicial branch decide the statute’s constitutionality.
In his arguments, Hamilton said allowing the Legislature to restore voting rights to people convicted of felonies is a “remarkable encroachment” on the exclusive authority of the executive branch to grant clemency. And he defended Evnen’s ability to defy laws he finds to be unconstitutional — an ability the Nebraska Supreme Court has recognized in case law dating back to the late 1800s — so long as he acted in good faith.
“Secretary Evnen made a good faith judgment that the legislative re-enfranchisement statutes are unconstitutional,” Evnen’s brief reads. “He thus acted properly in not implementing them.”
Jason Witmer, policy fellow for the American Civil Liberties Union of Nebraska, watches a livestream of the Nebraska Supreme Court’s hearing in a case that will determine voting rights for people convicted of felonies, at the Hruska Law Center in Lincoln on Wednesday, Aug. 28, 2024.
MEGAN NIELSEN, THE WORLD-HERALD
Hamilton, responding from questions from Justice Jonathan Papik, suggested that the Board of Pardons could grant “partial pardons” that restore voting rights to people convicted of felonies without restoring other rights like the right to serve on a jury or hold public office.
The court will have some discretion on whether to rule on the constitutionality of LB 20 and LB 53 in deciding whether to grant the writ of mandamus compelling Evnen to register voters with felony convictions.
“We made our case heard and we’re hoping for a quick ruling,” Seu said.
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Publish date : 2024-08-28 06:59:00
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