Nebraska Supreme Court rebukes state officials in ruling to restore felon voting rights
Justices reference ‘The Simpsons,’ Mark Twain in scathing criticisms of executive branch
LINCOLN, Neb. (WOWT) - The Nebraska Supreme Court released its decision Wednesday on the case involving voting rights for felons, with several justices passing along some harsh words to the state about its constitutionality arguments.
The court issued its ruling around 8 a.m. Wednesday, ruling that Nebraskans with felonies can now vote as long as they have completed their entire sentence, per a state law passed this spring.
Chief Justice Michael Heavican and Justices Jonathan Papik, William Cassel, and Stephanie Stacy concurred with the ruling; Justices Jeffrey Funke and John Freudenberg were dissenting; with Justice Lindsey Miller-Lerman concurring in part and dissenting in part.
“I am ecstatic about today’s ruling,” Gregory Spung, one of the plaintiffs in the lawsuit, said in a statement Wednesday. “For so long, I was uncertain if my voice would truly count under this law. Today’s decision reaffirms the fundamental principle that every vote matters. It’s a victory not just for me, but for thousands of Nebraskans who can now exercise their right to vote with confidence.”
The second plaintiff, Jeremy Jonak, said he was relieved by the decision and what it means for so many others like him.
“It is a weight off my shoulders, and not just because of what it means for me,” he said. “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. Thanks to this decision, we get to have a say as part of our communities.”
The justices heard oral augments in August on the issue. Attorney General Mike Hilgers ordered election offices to halt felon voter registration in July. He argued that it’s unconstitutional for lawmakers to return voting rights to felons who have completed their sentences.
Hilgers' written response to Wednesday’s ruling basically amounted to an acknowledgment of the decision: “We appreciate the Supreme Court’s consideration of this important issue and are grateful that the Court provided clarity before the election.”
JUSTICES' REMARKS
Nebraska Chief Justice Michael Heavican said that in making its decision, the state’s high court applied similar reasoning and case law that it used to rule on LB574, the law that contained both an abortion ban and limitations on trans youth healthcare.
The court ruled that Hilgers' presented no alternative remedy to restoring voter rights while deeming the current system illegal — and declared the state’s order overtly inaccurate, saying it does not present a “clear case of unconstitutionality,”
“I have doubts about whether the Nebraska Constitution would have originally been understood to prohibit the legislative restoration of the right to vote,” Justice Jonathan Papik wrote in his concurring remarks.
Officials must now comply with the new voter restoration law, according to the court’s decision.
In his argument, Hilgers said it should be up to the Board of Pardons to decide on the voting rights. Hilgers, Gov. Jim Pillen, and Secretary of State Bob Evnen comprise that board.
But in his concurring statement, Justice Papik said it’s not framed that way in Nebraska‘s constitution — and in fact questioned the attorney general’s understanding of the fundamentals of state law.
“It is particularly difficult for me to conclude that the constitution was originally understood to leave the question of restoration of civil rights exclusively to the unfettered discretion of the pardoning authority,” he wrote in his concurring comments.
Justice Lindsey Miller-Lerman also referenced “The Simpsons” in his criticism of the AG’s challenge.
“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,” he wrote. “...Do we want to live in a world where every state employee who has a hunch at statue is flawed gets to ignore it?”
Justice Miller-Lerman, who dissented in part while simply agreeing that the Secretary of State and election commissioners should follow the law, said the challenge seemed to be an exacerbation of the governor’s combative relationship with the Unicameral — and with the courts.
“At the risk of seeming impolite and wishing it were otherwise, I write separately because of my belief that the separation of powers issue in this case includes not only the obvious tension between the executive and legislative branches but also the tension between the executive and judicial branches,” she said in her comments.
She also questioned the timing of the state’s legal challenge.
Justice Papik had also raised concerns about the timing, saying that Hilgers and Secretary of State Bob Evnen could have raised their concerns about the constitutionality of LB20 “months ago,” citing Gov. Jim Pillen’s statement in April that Hilgers and Evnen had “identified significant potential constitutional infirmities regarding the bill.”
“So the Attorney General’s office had a least 3 months from April to July 2024 to prepare its opinion regarding LB20 and nearly 20 years to prepare its opinion regarding LB53, the substance of which the office was aware of since 1996. ... The issuance of the Attorney General’s opinion on July 17, 2024, was a choice, and respectfully, I am unable to see how it was in service of good government,” Justice Papik said.
Those events created a situation that interfered with voter rights, he said.
”The net effect was to deter voting and voter registration — one such example being an original petitioner in this case withdrew his request to register and was voluntarily dismissed from this action," the remarks state.
In his concurring remarks, Justice William Cassel evoked Mark Twain when calling the state’s fears of widespread malfeasance while restoring voting rights “greatly exaggerated.”
“The outcome of this case flows from the history surrounding the 1875 Nebraska Constitution. The parties, on both sides, paid little attention to that history,” Justice Cassel wrote, cautioning that those in favor of the more recent law would likely “collide directly” with the Board of Pardons — a point at the top of the dissent pile in the ruling.
In his dissenting remarks, Justice Jeffrey Funke said he didn’t think it was constitutional for the Legislature to restore the right to vote independently of other rights.
"In determining that the restoration of civil rights is essentially an exercise of the pardon power, I would look to what a pardon is and does... free the offender from any punishment for a crime and to eliminate any other legal consequences of the conviction, such as the loss of civil rights," he wrote.
He says the restoration of voting rights is a type of partial pardon; and since the state already has an entity overseeing pardons, the Legislature is overstepping its constitutional assignment.
“The Legislature has no power over the decision whether to great release on parole,” he says.
Justice Freudenberg agreed, saying: "Nullifying the legal consequence of committing a crime by restoring those civil rights is, by definition, a pardon."
He expressed frustration at again being faced with what he sees as the court’s repeated failure to recognize separation of powers.
“It is our duty to ensure compliance with the Nebraska Constitution. The wide range of controlling positions fail to do so," he wrote. “...I unfortunately find myself again dissenting in a case where the court is empowering the Legislature to exercise the pardon power exclusively granted by our constitution to the executive branch. I believe that our duty to protect and preserve the separation of powers mandated by the Nebraska Constitution demands better.”
TIMELY MATTER
The timing of Wednesday’s decision is key as voter registration deadlines are approaching. Nebraskans affected by this decision now have only a few days to re-register to vote. Online registration ends Oct. 18, and the last day to register in-person is Oct. 25.
Several organizations were already working Wednesday to get felons registered to vote ahead of Friday’s deadline.
“If I’m able to vote and be a part of my community I’m going to reach out more to my community. I’m going to get more involved because I know that I have a say now," business owner Ryan Hensley told 6 News.
There are around 7,000 Nebraska voters are now eligible to cast a ballot with the restoration of their voting rights. That’s on top of the 60,000 Nebraskans who got their right to vote back in 2005, when lawmakers ended the lifetime ban on felons voting. By some estimates, the court decision impacts 80,000 voters in Nebraska.
Opponents say there isn’t even a box to ask them to give your voting rights back in the paperwork. It’s a seven-page document asking for all sorts of history — from jobs to the crime an individual committed, and even the names of victims. Conversely, there is a box to ask for the restoration of gun ownership rights.
“We still have these barriers in place where these invisible handcuffs just kind of remind us that, you know, you still have some stuff in your past that maybe not everybody has forgiven you for,” said Jason Kotas with the RISE re-entry program.
Organizers held signs Wednesday reminding Nebraska felons that if they‘re off paper, they can vote. Those who had been incarcerated and waiting for the court’s decision said the wait caused confusion for those felons who had been voting for years.
“And they breathed a sigh of relief not because LB20 affects them, per see, because again they could already legally vote — but because they were scared of what other type of voter suppression might happen if they were to exercise their right to vote," said Jason Whitmer with ACLU of Nebraska.
He’s now a community navigator for RISE. After waiting in line on Wednesday, he is finally a registered voter in this state.
“It’s bigger than just what it means to me; what it represents for a whole bunch of people like me that have walked these prison yards and have done our time. And we’ve worked really hard to turn our lives around,” Whitmer said.
Eligible citizens have until Friday to register online; the deadline to register in person to vote is 6 p.m. Friday, Oct. 25. Anyone with questions about the deadlines or how to register should contact their county election office.
REACTION STATEMENTS
“This is justice. 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. For Nebraskans who have been caught up in this mess for the last few months, the key takeaway is this: if you are done with all terms of your sentence, you are eligible to vote, and there is now a court decision backing that up. Now is the time to know your rights, get registered and make a plan to vote.”
“This ruling marks a victory for all of our state’s citizens. From now on, every eligible voter in our state can exercise their constitutional right to participate in our democratic system. This was self-evident on July 17 — the day the secretary of state decided to stop honoring the law — and it’s self-evident today.
Civic Nebraska and our partners are now preparing to take action to register those whose voting rights have been thrown into uncertainty over the past few months. Our teams will soon be on the ground to connect with Nebraskans and help them restore their vote and regain their voice.”
“This decision is a victory for Nebraskans, democracy, and the rule of law. Secretary of State Evnen and Attorney General Hilgers attempted to overturn two decades of rights restoration law by executive fiat and re-disenfranchise thousands of Nebraska citizens heading into a presidential election. We are grateful the Nebraska Supreme Court invalidated this lawless attempt to reinstate permanent felony disenfranchisement and are thrilled for the thousands of eligible Nebraska voters who will be able to cast ballots in November and beyond.
We also urge the state to extend its voter registration deadline. Thousands of Nebraskans have lost months to register due to the secretary’s unlawful directive, and they should be allowed sufficient time to register to vote ahead of the November election.”
“Today’s ruling confirms that one elected official cannot override the legislature’s ability to pass laws. It is a great day for Nebraskans whose voting rights are restored. Because this decision comes so close to the voter registration deadline, we are calling on the Secretary of State to extend the deadline for voter registrations one additional week in order to allow the 7,000 Nebraskans in question to be registered. Democracy wins today when it comes to voting rights and the balance of powers.”
"In Nebraska, the people rule. Our state Supreme Court’s decision to instruct the secretary of state to register Nebraskans with past felony convictions is a clear victory for Nebraskans and democracy. This decision corrects a grave injustice and, from this moment on, ensures that every eligible voter in our state is afforded the constitutional right to participate in the democratic process.
Voting Rights Restoration Coalition partners are gearing up to help register voters whose rights were placed in limbo these past several months. Our teams will soon be in the field, reaching out to Nebraskans so that they can restore their vote and reclaim their voice.
From now until 6 pm CDT on Oct. 25 – the very last moment Nebraskans can register to vote in the Nov. 5 general election – our partners are committed to reversing the harm and confusion resulting from the attorney general’s opinion and the secretary of state’s directive.”
Read the full decision
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Correction: A previous version of this story attributed a citation to the wrong Nebraska Supreme Court justice. 6 News regrets the error.
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Digital producer Elaina Riley and reporter Brian Mastre contributed to this report.
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