Aaron Sanderford
OMAHA — The Nebraska Supreme Court ruled Wednesday that Nebraska Secretary of State Bob Evnen was wrong to stop registering voters under a new state law eliminating the two-year wait for people who have served a sentence for a felony conviction.
The court did not decide the constitutional question raised by Evnen and Attorney General Mike Hilgers — which branch of state government has the authority to set the timing of when people who have served a sentence for a felony conviction can vote.
Evnen and Hilgers, in an advisory legal opinion that Evnen cited in deciding to ignore Legislative Bill 20, argued that only the executive branch’s Pardons Board that they and Gov. Jim Pillen serve on can constitutionally restore a person’s civil rights.
Lawyers from ACLU Nebraska, arguing on behalf of Civic Nebraska and two Nebraskans prepared to register to vote, argued that the Legislature has case law and past practice on its side in setting the timing of when someone can legally vote.
One of them is Gregory Spung of Omaha, a plaintiff in the case, who plans to register as a nonpartisan voter. He had registered online before Evnen’s decision and retracted it after Evnen’s decision. He said in a statement that he was “ecstatic.”
For so long, I was uncertain if my voice would truly count under this law. Today’s decision reaffirms the fundamental principle that every vote matters.
– Gregory Spung, plaintiff
“For so long, I was uncertain if my voice would truly count under this law,” Spung said. “Today’s decision reaffirms the fundamental principle that every vote matters. It’s a victory not just for me, but for thousands of Nebraskans.”
The other plaintiff, Jeremy Jonak of Wood River, who plans to register as a Republican, said the decision lifted “a weight off my shoulders” and that of other Nebraskans who had been waiting. He said people had earned a second chance.
“The truth is most of us are just trying to live our lives and leave the past behind us,” Jonak said. “Thanks to this decision, we get to have a say as part of our communities.”
Neither Evnen nor Hilgers had an immediate comment Wednesday. An Evnen spokeswoman said a press release was coming Wednesday afternoon. A Hilgers spokeswoman said they were reviewing the ruling and would have a statement soon.
The narrower ruling means the court could not find five justices who agree on the constitutionality or unconstitutionality of LB 20 or its predecessor, LB 53 from 2005. LB 53 had restored voting rights two years after serving a criminal sentence.
Under Nebraska’s constitution, it takes five justices to declare a law unconstitutional. Because the court did not rule the law unconstitutional, Evnen and Hilgers are likely out of time to stop registrations for the Nov. 5 general election, now less than three weeks away.
The court essentially took the simplest of the arguments ACLU lawyer Jane Seu made during oral arguments in late August: that Evnen and Hilgers should have known that the law of the land is the law of the land until a court rules it unconstitutional.
The ruling means the thousands of people that voting rights advocates said were poised to be newly registered will get their chance, if advocates can execute a plan they discussed to let people know they can now register to vote this fall.
Seu called it “justice.”
“Given the sheer scale of disenfranchisement that this decision corrects, there is no question that it will be remembered as one of our state’s most consequential voting rights decisions,” she said in a statement Wednesday.
RISE, a re-entry program for incarcerated Nebraskans and others in the justice system, has said more than 7,000 people could be newly eligible to vote. Several have discussed the importance of being able to participate fully as key to re-entry efforts.
Thousands more who were also in limbo after Evnen’s move got the reassurance that their voting rights are still sound, the people who had waited two years under the 2005 law and had already registered to vote — and in many cases voted previously.
The time to register voters is tight. Friday is the last day for Nebraskans to register to vote by mail or online for the 2024 general election. The deadline for registering in-person at a county elections office is Oct. 25.
Civic Nebraska, part of a group trying to organize and register voters in time, the Voting Rights Restoration Coalition, said partners would be calling, texting and reaching out to voters to make sure they know of the ruling and their rights.
“From now on, every eligible voter in our state can exercise their constitutional right to participate in our democratic system,” said Steve Smith, a spokesman for Civic Nebraska.