Nebraska high court to decide if residents with felony records can vote

OMAHA, Neb. — Thousands of Nebraska residents with felony records will learn Wednesday whether they’ll be able to vote in next month’s hotly contested elections after the state Supreme Court issues its ruling on a lawsuit seeking to restore their voting rights.

The state’s high court heard arguments in August on a lawsuit challenging a decision by the state’s top election officials to ignore a new state law restoring the voting rights of those who have been convicted of a felony.

The decision comes just days ahead of state deadlines to register to vote in the Nov. 5 general election.

Brad Christian-Sallis, a director at the nonprofit civic engagement organization Nebraska Table, said he has heard from those with felony criminal records who were looking forward to voting not just in the presidential race, but on state and local races that affect their neighborhoods and schools.

“It’s absolutely caused a lot of anxiety and frustration,” he said.

Secretary of State Bob Evnen ordered county election officials not to register those with felony convictions for the November election after the state’s attorney general, Mike Hilgers, said in July that the new law was unconstitutional. Evnen had sought that opinion from Hilgers.

The American Civil Liberties Union sued on behalf of several Nebraska residents who would be denied the right to vote under Evnen’s directive. Because Evnen’s move came only weeks ahead of the November election, the ACLU asked to take the lawsuit directly to the Nebraska Supreme Court, and the high court agreed.

Evnen’s order could keep more than 7,000 Nebraska residents from voting in the upcoming election, the ACLU has said. Many of them reside in Nebraska’s Omaha-centered 2nd Congressional District, where both the race for president and Congress could be in play. In an otherwise reliably Republican state that, unlike most others, splits its electoral votes, the district has twice awarded an electoral vote to Democratic presidential candidates — once to Barack Obama in 2008 and again to Joe Biden in 2020.

Civic Nebraska, a voting rights advocacy group, is a plaintiff in the lawsuit seeking to force state officials to enact the new law.

“Whenever the decision comes, we have a plan to run registration drives and get the word out,” the group’s voting rights restoration coordinator, Noah Rhoades, said in an open letter to voters last week.

The law, passed by the Nebraska Legislature this year and often referred to by its bill number, LB20, immediately restores the voting rights of people who have successfully completed the terms of their felony sentences.

The attorney general’s opinion says the new law violates the state constitution’s separation of powers because he believes only the Nebraska Board of Pardons has the authority to restore a person’s voting rights through a pardon.

Pardons are hard to get in Nebraska, which requires those convicted of felonies to wait 10 years after their terms to even file an application for a pardon, and are rarely granted. The Pardons Board is made up three members: Evnen, Hilgers and Gov. Jim Pillen. All three are Republicans who have been vocal about their opposition to restoring the voting rights of those with felony records.

Hilgers’ 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. If that law is upheld as unconstitutional, it could disenfranchise tens of thousands of Nebraskans who have been eligible to vote for the last 19 years.

Evnen has said he has not taken steps to remove from the voter rolls those with felony convictions who had legally registered to vote under the 2005 law. But that has done little to assuage the concern of people who have been able to legally voted for years, Christian-Sallis said.

“I spend a lot of time at the doors talking to voters and just talking to the community in general and get a lot of folks who were going to be eligible under LB20 and now are confused if they were or were not allowed to register to vote,” he said.

Their concern is not without merit. Republican-led states have historically made it difficult for those convicted of a felony to vote, and even in states where laws have restored some of those rights, some GOP leaders have sown confusion and fear over who can and can’t vote.

In Florida, voters approved a constitutional amendment in 2018 to restore voting rights to those with felony convictions. But three years later, Republican Gov. Ron DeSantis created a unit to target “election crimes” that arrested 20 people with felonies that had sought to vote. The action highlighted the perplexing process Florida uses to determine whether people convicted of felonies can vote, and several of the defendants said they were confused by the arrests because election officials had allowed them to register to vote.

A report released last week by The Sentencing Project found that 4 million Americans will be unable to vote on Nov. 5 due to felony disenfranchisement laws.

Christian-Sallis is hoping the Nebraska Supreme Court follows the lead of two dozen other states that have made the move to restore voting rights to those with felony records.

“What it really means at the end of the day is the opportunity to participate in our democracy and really engage with their communities again in a way that they haven’t been able to,” he said.