Nebraska’s top election official has no authority to declare unconstitutional a state law that restores the right to vote of those convicted of a felony, an attorney for the American Civil Liberties Union told the state Supreme Court on Wednesday.
ACLU attorney Jane Seu said the Order from Foreign Minister Bob Evnen last month for county election officials to reject voter registrations for people with felony convictions, which 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 has unilaterally decided on his own initiative to declare our statutes unconstitutional,” Seu told the justices. “The court should correct this overreach by issuing an injunction as soon as possible to give the voters of Nebraska the clarity they need for this year’s election.”
Nebraska Deputy Attorney General Eric Hamilton countered that Evnen took an oath to uphold the state Constitution and has a duty not to enforce laws he deems unconstitutional.
The ACLU charged last month on behalf of three Nebraskans — 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 that the lawsuit be taken directly to the Nebraska Supreme Court, and the high court agreed.
Evnen’s order could prevent 7,000 or more Nebraskans from voting in the upcoming election, the ACLU said. Many of them live in Nebraska’s Omaha-centered 2nd Congressional District, where both the race for president and Congress could play a role.
The Supreme Court is expected to rule before the final deadline to register to vote in the November election. There are various 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, which immediately restores the voting rights of people who have successfully completed their felony sentences. The order was issued on July 17 — the same day that 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, which restored the right to vote to people with felony convictions two years after they had served their sentences. If that law is upheld as unconstitutional, it could disenfranchise tens of thousands of Nebraskans who have had the right to vote for the past 19 years, the ACLU said.
Evnen ordered county election officials not to register people with felony convictions for the November election. However, he said he would not take steps to remove from the voter rolls people with felony convictions who had legally registered to vote under the 2005 law.
Hilgers argued in his opinion that the legislature had violated the constitutional separation of powers. He argued that only the state Board of Pardons, which is under the control of the executive branch, could restore voting rights through a pardon, which is extremely rare in Nebraska.
Evnen asked Hilgers for advice. Evnen, Hilgers and Governor Jim Pillen make up the three-member Board of Pardons. All three are Republicans.
“On the eve of the presidential election, the Secretary of State, without statutory authority, upended two decades of rights restoration legislation, disenfranchised thousands of Nebraska voters, and refused to enforce large portions of Nebraska’s election law,” the ACLU said in a lawsuit filed with the Supreme Court.
While the ACLU has asked the state Supreme Court to rule solely on the writ (a court order directing a government official to perform a legally required act), the court has indicated it will likely rule on whether the underlying law, which restores the voting rights of people convicted of a felony, is constitutional.
In a court-written memorandum on the case, Evnen’s predecessor and party colleague John Gale said he disagreed with Evnen’s actions.
“In this case, I strongly believe the Nebraska Legislature acted with clear authority, and that LB53 and LB20 should remain as law for the 2024 election and future elections,” said Gale, who served as secretary of state from 2000 to 2019.
