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Nebraska’s highest election official has no authority to declare unconstitutional a state law that restore the right to vote of those who have been convicted of a crime, an attorney for the American Civil Liberties Union told the state Supreme Court on Wednesday.
ACLU attorney Jane Seu said it was Order of Secretary of State Bob Evnen last month for county election officials to deny voter registrations from those with felony convictions is illegal 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 by himself to declare our statutes unconstitutional,” Seu told the judges. “The court should correct this overreach by 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 responded that Evnen has sworn an oath to uphold the state constitution and has a duty not to implement laws he believes are unconstitutional.
The ACLU charged 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 just weeks before the November election, the ACLU asked to take the case directly to the Nebraska Supreme Court, and the high court agreed.
Evnen’s order could prevent 7,000 or more Nebraska residents from voting in the upcoming election, the ACLU said. Many of them reside in the 2nd Congressional District centered on Omaha in Nebraska, where running for president and Congress could be at stake.
The high court is expected to rule before the final deadline to register to vote in the November elections. There are several deadlines for registering by mail, online or through a third party. The last day to register to vote is October 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. LB20earlier this year that immediately restores the voting rights of people who have successfully completed the terms of their felony sentences. The order was made on July 17 – the same day that 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 voting rights to people with felony convictions two years after serving the terms of their sentences. If this law is upheld as unconstitutional, it could disenfranchise tens of thousands of Nebraskans who have been eligible to vote for the past 19 years, the ACLU said.
While Evnen ordered county election officials not to register those with felony convictions for the November election, he said he has not taken steps to remove those with felony convictions from the voter rolls. 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 Pardons Board under the control of the executive branch can restore voting rights through pardons, which are exceedingly rare in Nebraska. .
Evnen sought Hilgers’ opinion. 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, gutted two decades of rights restoration laws, disenfranchised thousands of Nebraska voters, and refused to enforce a large portion of the election code of the Nebraska,” the ACLU said in a brief before the High Court.
While the ACLU asked the state Supreme Court to stand by its mandate of mandamus — a court order for a government official to do an act that is legally binding — the court indicated that it is likely to decide 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 that the Nebraska Legislature acted with clear authority, and LB53 and LB20 should be enforced as law for the 2024 election and future elections,” said Gale, who served as secretary of state from 2000 to 2019.
