Nebraska's top election official has no authority to declare unconstitutional a state law that restores the voting rights of those who’ve been convicted of a felony, a lawyer for the American Civil Liberties Union told the state Supreme Court on Wednesday.
ACLU attorney Jane Seu said it was Secretary of State Bob Evnen's order last month for county election officials to reject the voter registrations of those with felony convictions that is unlawful and unconstitutional. Citing legal precedent, Seu said only the Nebraska Supreme Court can determine whether a state law is unconstitutional.
“The secretary here made a unilateral determination on his own to declare our statutes unconstitutional,” Seu told the justices. “The court should correct this overreach, issuing a writ as soon as possible to give Nebraska voters the clarity they need before this year’s election.”
Nebraska Assistant Attorney General Eric Hamilton countered that Evnen swore an oath to uphold the state constitution and has a duty not to implement laws that he believes are unconstitutional.
The ACLU sued last month on behalf of three Nebraska residents — a Democrat, a Republican and an independent — who would be denied the right to vote under Evnen's directive. Because Evnen's move comes 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 7,000 or more 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.
The high court is expected to rule before the final deadline to register to vote in the November election. There are several deadlines for registering by mail, online or through a third party. The last day to register to vote is Oct. 25 and must be done in person.
Evnen's order came after the Nebraska Legislature passed a law, often referred to by its bill number LB20, earlier this year that immediately restores the voting rights of people who've successfully completed the terms of their felony sentences. The order was made July 17 — the same day state Attorney General Mike Hilgers issued an opinion saying the new law violates the state constitution’s separation of powers.
That opinion also found unconstitutional a 2005 state law, known as LB53, that restored the voting rights of people with felony convictions two years after they complete 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, the ACLU has said.
While Evnen ordered county election officials not to register those with felony convictions for the November election, he said he would not take steps to remove from the voter rolls those with felony convictions who had legally registered to vote under the 2005 law.
Hilgers’ opinion said the Legislature violated the constitutional separation of powers, arguing that only the state Board of Pardons under the control of the executive branch can restore voting rights through pardons, which are exceedingly rare in Nebraska.
Evnen sought the opinion from Hilgers. Evnen, Hilgers and Gov. Jim Pillen make up the three-member Board of Pardons. All three are Republicans.
“On the eve of a presidential election, the secretary has, without legal authority, upended two decades of rights restoration law, re-disenfranchised thousands of Nebraska voters, and declined to enforce large swaths of Nebraska’s election code,” the ACLU said in a brief before the high court.
While the ACLU asked the state Supreme Court to rule solely on its writ of mandamus — a court order for a government official to perform an act that is legally required — the court indicated it's likely to rule on whether the underlying law restoring the voting rights of those with felony convictions is constitutional.
In a friend-of-the-court brief filed in the case, Evnen's predecessor and fellow Republican John Gale said he disagreed with Evnen's actions.
“In this case, I strongly believe the Nebraska Legislature acted with clear authority, and LB53 and LB20 should be enforced as the law for the 2024 election and future elections,” said Gale, who served as secretary of state from 2000 to 2019.