People with felony records can now vote in Nebraska — and it could help
tip the balance in November
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[October 17, 2024]
By MARGERY A. BECK
OMAHA, Neb. (AP) — 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 said. Many reside in Nebraska’s
Omaha-centered 2nd Congressional District, where both the presidency and
the makeup of Congress could be at stake.
In July, Evnen had ordered county election officials to reject voter
registrations from 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 those who complete 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 Wednesday's ruling,
using names that appear to reference the older sisters of Marge Simpson
from the animated TV show “The Simpsons.”
She also criticized Evnen and Attorney General Mike Hilgers for taking
it upon themselves to declare the law unconstitutional, writing, "Do we
want to live in a world where every state employee who has a hunch a
statute is flawed gets to ignore it?”
Evnen released a statement following the ruling saying he had reversed
his earlier order to county election officials. Hilgers simply said he
appreciated the court's clarification.

Nebraska is heavily Republican overall but is one of 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 2021 redrawing of the boundaries. 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 a
strong challenge from independent candidate Dan Osborn, a former union
leader who eschewed both major parties. In the House race, Republican
Rep. Don Bacon is running against Democratic state Sen. Tony Vargas in a
rematch of a 2022 contest that Bacon narrowly won.
The last day to register to vote for the 2024 general election in
Nebraska is Oct. 25 and must be done in person.
The attorney general's opinion said the 2024 law allowing people with
felony convictions to vote violated the state constitution’s separation
of powers, because only the state Board of Pardons under the control of
the executive branch could restore voting rights through rarely-issued
pardons. Evnen, Hilgers and Gov. Jim Pillen — all Republicans — make up
the three-member Pardons Board.
The opinion also found unconstitutional a 2005 state law that restored
voting rights two years after the completion of a felony sentence.

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Nebraska Secretary of State Bob Evnen holds a news conference in
Lincoln, Neb., Nov. 4, 2020. (AP Photo/Nati Harnik, File)

In its ruling, the Nebraska Supreme Court unanimously agreed to
order election officials to enforce the 2024 law, noting 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 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 since the 2005 law passed
and that such a finding would consolidate power in the executive
branch.
The ACLU represented 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.”
At a news conference Wednesday held by several advocacy
organizations, Jason Kotas spoke on behalf of RISE, a Nebraska
nonprofit that supports those leaving prison. He also spoke as
someone who spent most of his adult life behind bars for crimes
committed while addicted to drugs and alcohol.
“So, I'm 50 years old, and this is the first time in my life I'll be
able to register to vote,” Kotas said minutes before walking to a
local election office to register. “This is a really big deal. I
think people who have never lost this right — I don't even think you
really understand how important this is.”
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 with felony convictions to vote,
either for those not currently in prison or upon completion of their
sentences. Two states, Maine and Vermont, allow 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.
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