LINCOLN, Neb. — A recent debate in the Nebraska Supreme Court has thrust into the spotlight the contentious issue of whether the state legislature or the executive branch holds constitutional authority to restore voting rights to convicted felons. The argument has raised fundamental questions about the balance of power between branches of government and the scope of legislative and executive roles in criminal justice reforms.
During Wednesday’s oral arguments, justices scrutinized positions presented by the ACLU and the Nebraska Attorney General’s Office, focusing on whether restoring voting rights should be an exclusive prerogative of the executive through the Pardons Board or if the legislature has the power to enact such changes by law.
The state’s highest court is also considering whether to take a broader look at the constitutional foundations of voting rights and the pardoning process or limit its decision to whether Secretary of State Bob Evnen should have implemented a law passed by the legislature that removed a two-year wait period for felons to regain their voting rights.
Justice William Cassel’s line of questioning indicated a potential need to resolve overarching issues, while other Justices, such as Stephanie Stacy and retiring Chief Justice Mike Heavican, appeared more inclined toward a narrower focus.
During the session, ACLU Nebraska’s legal and policy counsel, Jane Seu, advocated for the implementation of Legislative Bill 20, arguing that it rests on longstanding practices that enable the legislature to set terms for reinstating voting rights post-sentencing. Seu emphasized the duty of the Secretary of State to implement laws barring a judicial ruling on their constitutionality, asserting that these statutes presume constitutionality until proven otherwise.
On the other side, Nebraska Solicitor General Eric Hamilton argued that the constitutional powers to restore civil rights post-felony conviction reside solely with the Pardons Board, which includes Gov. Jim Pillen, Evnen, and Attorney General Mike Hilgers. Hamilton raised concerns about the precedent set by the legislature’s actions, suggesting they infringe upon the executive’s clemency powers.
Justice Jonathan Papik brought to the fore historical laws from as early as the late 1800s, querying their implications on current legislative powers versus pardon rights.
Significantly, LB 20, which abolished the two-year waiting period established under 2005’s Legislative Bill 53, came into law without the governor’s signature but with a veto-proof majority. This has led to unregistered voters under the new law and halted new registrations under the old law without removing existing registrants, a move spurred by Evnen following Hilgers’ advisory opinion branding both bills unconstitutional.
Amid these legal battles, State Sen. Justin Wayne voiced dissatisfaction with the drift of the arguments away from legislative intention and historical precedence, underscoring the legislature’s longstanding authority to govern voting rights as evidenced by statutes from as far back as 1873.
Post-hearing, Evnen assured that his actions were based on the constitutional advisement from Hilgers and emphasized his commitment to respecting the court’s final decision, underscoring the judiciary’s role as the ultimate arbiter of constitutionality, yet acknowledging the indispensable roles of the legislature and executive in governance.
As this legal debate unfolds, it not only questions the interplay between state powers but also sets a significant precedent for how voting rights restoration is approached across the United States, where similar discussions are echoing through courts and capitols.