People with felony convictions can vote in Nebraska, judge rules

OMAHA, Neb. — Nebraska’s top election official had no authority to strip voting rights from people convicted of a felony, the state Supreme Court ruled Wednesday in a decision that could add hundreds of new voters to the rolls and potentially help tip the balance on Nov. 5.

The order by Republican Secretary of State Bob Evnen could have kept 7,000 or more Nebraskans from voting in the upcoming election, the American Civil Liberties Union has said. Many of them reside in Nebraska’s Omaha-centered 2nd Congressional District, where both the presidency and the makeup of Congress could be at stake.

Evnen in July had ordered county election officials in Nebraska to reject the voter registrations of those with felony convictions, citing an opinion from the state attorney general. That opinion, which Evnen had requested, deemed as unconstitutional a law passed this year by the Legislature immediately restoring the voting rights of people who have completed the terms of their felony sentences.

“Patty and Selma at the Department of Motor Vehicles may not be constitutional scholars, but they know that they are expected to follow the law,” Justice Lindsey Miller-Lerman wrote in the high court’s ruling, criticizing Evnen and Attorney General Mike Hilgers for taking it upon themselves to declare the law unconstitutional. “Do we want to live in a world where every state employee who has a hunch a statute is flawed gets to ignore it?”

Nebraska overall is heavily Republican but is one of only two states — the other is Maine — that apportions its Electoral College votes by congressional district. The Omaha-area district has twice awarded its one vote to Democratic presidential candidates — to Barack Obama in 2008 and again to Joe Biden in 2020. In a 2024 presidential race shown by polling to be a dead heat, a single electoral vote could be decisive.

Registered Republicans outnumber Democrats in the district by more than 13,000 following a redrawing of the borders in 2021. But the district also has nearly 114,000 independent and third-party voters. In 2020, Biden bested former President Donald Trump there by more than 22,000 votes.

Democratic presidential nominee Kamala Harris and Democratic groups have spent millions there to secure the precious electoral vote — far more than Trump and Republican groups.

Nebraska also has competitive races for one U.S. Senate seat and the 2nd District’s U.S. House seat. Two-term Republican Sen. Deb Fischer faces her strongest challenge yet in independent candidate Dan Osborn, a former union leader who has eschewed both major parties. In the House race, Republican Rep. Don Bacon is running against Democratic state Sen. Tony Vargas in a rematch of the 2022 election, which Bacon narrowly won with 51% of the vote.

The last day to register to vote for the 2024 general election in Nebraska is Oct. 25 and must be done in person. Election Day is Nov. 5.

The attorney general’s opinion said that the 2024 law allowing people with felony convictions to vote violated the state constitution’s separation of powers and that only the state Board of Pardons under the control of the executive branch could restore voting rights through pardons. Pardons are exceedingly rare in Nebraska. Evnen, Hilgers and Gov. Jim Pillen make up the three-member Board of Pardons, and all three are Republicans.

The opinion also found unconstitutional a 2005 state law that restored the voting rights of people with felony convictions two years after they complete the terms of their sentences.

In its ruling, the Nebraska Supreme Court unanimously agreed to order election officials to enforce the 2024 law, noting that the election is days away and that the state constitution allows only a supermajority of five state Supreme Court justices to determine whether a law passed by the Legislature is unconstitutional.

But the justices diverged wildly in separate writings on whether they believe both voting-rights laws are constitutional. Several justices said the court should not reach a conclusion, while two of its most conservative members — Justices Jeffrey Funke and John Freudenberg — said they would find them unconstitutional.

Miller-Lerman disagreed in a scathing retort, saying that to find the laws unconstitutional could disenfranchise 59,000 Nebraska residents who have been eligible to vote under the 2005 law for nearly two decades and that such a finding would consolidate power in the executive branch.

The ACLU is representing advocacy group Civic Nebraska and two Nebraska residents — Jeremy Jonak, who plans to register as a Republican, and Gregory Spung, an independent. Both men have felony records and would have been denied the right to vote under Evnen’s directive. Because Evnen’s move came only weeks ahead of the November election, the ACLU took the lawsuit directly to the Nebraska Supreme Court.

“For so long, I was uncertain if my voice would truly count under this law,” Spung said in a statement. “Today’s decision reaffirms the fundamental principle that every vote matters.”

Jonak called the decision a weight off his shoulders.

“Over the years, so many of us have earned a second chance. 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,” he said.

Felony disenfranchisement laws date to the Jim Crow era and mainly targeted Black people, according to experts. Black registered voters have an overwhelmingly positive view of Harris, according to a recent poll from the AP-NORC Center for Public Affairs Research.

Restoration of the voting rights of people with felony convictions has drawn national attention in recent years. In Florida, lawmakers weakened a 2018 voter-approved constitutional amendment to restore the voting rights of most people convicted of felonies. Following that, an election police unit championed by Republican Gov. Ron DeSantis arrested 20 such people. Several said they were confused by the arrests because they had been allowed to register to vote.

In Tennessee, lawmakers killed a bipartisan bill this year that would have let residents convicted of felonies apply to vote again without also restoring their gun rights.

Dozens of states allow people living with felony convictions to vote, either for those not currently in prison or upon completion of their sentences. Two states, Maine and Vermont, allow everyone, even those in prison, to vote. But despite a recent trend toward restoration of rights, felony disenfranchisement laws prevent around 5.85 million people across the country from voting, according to the ACLU.