Nebraska Supreme Court Allows People Who Completed Felony Sentences to Vote

With less than a month until the election and 10 days until Nebraska’s final voter registration deadline, the state supreme court on Wednesday ordered election officials to allow citizens who have completed their felony sentences to register to vote. The decision affects tens of thousands of Nebraskans who regained the right to vote under laws enacted by the legislature in 2005 and in July of this year, but who were prohibited from registering by the secretary of state.

That gives voting rights advocates just days to notify and mobilize tens of thousands of voters who now have certainty about their right to vote in the election. Many of them live in Nebraska’s Second Congressional district, home to Omaha, that could be pivotal in both the presidential and congressional elections.

In 48 states, American citizens are stripped of their right to vote when they are convicted of a felony, though for how long depends on the state they live in. Efforts to change disenfranchisement laws, a relic of the Jim Crow era, so that more citizens with past convictions can vote have picked up momentum in recent years, either through gubernatorial action, citizen-approved constitutional amendment, or legislation.

But these reforms have sometimes been met with resistance, with lawmakers and other officials or activists trying to diminish their effects or even outright overturn them.

Nebraska was one of the states that moved to expand voting rights for those with a past felony conviction, but pushback came from its own attorney general and secretary of state. At issue in the case was whether the legislature had the power to restore voting rights or if that ability was reserved for the executive branch through its pardons board. The case arose following the Nebraska legislature’s passage of a law in April that immediately restored voting rights to those convicted of a felony once their sentence was complete, as opposed to requiring them to wait for two years — a period imposed by the legislature in 2005 when it repealed lifetime disenfranchisement.

In July, two days before the 2024 law was set to take effect, the state attorney general issued an advisory opinion saying both the 2005 and 2024 laws violated the Nebraska Constitution because only the pardons board, not the legislature, is empowered to reinstate voting rights. The attorney general’s opinion was nonbinding, so the 2005 and 2024 laws both remained in effect. Despite that, Nebraska Secretary of State Bob Evnen directed elections officials to stop registering individuals who had been convicted of a felony unless their voting rights had been restored by the pardons board.

The American Civil Liberties Union of Nebraska, on behalf of three individual plaintiffs and a nonprofit group, brought suit directly in the state high court asking it to compel the secretary of state to comply with the laws. Echoing the attorney general’s advisory opinion, Evnen told the court that the 2024 and 2005 laws were unconstitutional because only the pardons board could restore voting rights. Moreover, he argued, even if the legislature could restore voting rights, neither law did so because the constitution provides that someone convicted of a felony cannot vote unless they are “restored to civil rights” — plural. According to Evnen, the statutes did not meet this requirement because they only involved one right: the right to vote.

In its decision in Spung v. Evnen, the Nebraska Supreme Court did not reach the constitutionality of the laws. It ordered election officials to immediately allow people who have completed their sentences to register to vote. The ruling was issued with no individual author — and indicated the restoration laws would stand “because the requisite number of judges have not found that the statutory amendments are unconstitutional.” Two of the seven justices filed dissents saying they agreed with Evnen and the attorney general that only the pardons board can restore voting rights.

At least one justice’s hesitance to issue a decision on the merits of the case appeared to be based on the looming registration deadlines for this fall’s election. Chief Justice Michael Heavican, who will retire at the end of this month, wrote a concurrence noting that “there was relatively little time between the submission of the case to this court and the onset of deadlines related to the 2024 general election.” Nebraskans who want to register to vote online must do so by October 18 and the final deadline to register in-person at an election office is October 25.

Nebraskans with felony convictions whose rights had been restored by the legislature aren’t the only citizens who faced uncertainty about their ability to vote in this fall’s election. More than 50,000 Minnesotans with felony convictions were affected by an August decision issued by that state’s high court. Like the Nebraska Constitution, the Minnesota Constitution includes language requiring that people with felony convictions be “restored to civil rights” before they can vote. Just a year earlier, the court interpreted that language to mean that restoration required “some affirmative act of, or mechanism established by, the government.” That could include “an absolute pardon that nullifies the felony conviction” or “a legislative act that generally restores the right to vote upon the occurrence of certain events,” the court said in 2023.

Despite the Minnesota Supreme Court’s recognition of the legislature’s authority to restore voting rights, three individuals and a self-described “election integrity” organization filed a lawsuit this year, challenging a 2023 law that restored the right to vote to non-incarcerated persons convicted of a felony.

The Minnesota Supreme Court upheld the law in August. Though several justices expressed skepticism during oral arguments over the plaintiffs’ constitutional claims, they did not reach those issues in their opinion. Instead, they held that the plaintiffs did not have standing to bring the suit. The plaintiffs had relied on taxpayer standing, which allows people not directly injured by a law to allege it constitutes illegal expenditure of funds. Because the expenditures associated with the re-enfranchisement law were only “incidental to implementing” it, taxpayers could not challenge in without alleging a more concrete injury.

Together, the decisions provide certainty to tens of thousands of citizens across Nebraska and Minnesota about their right to participate in the 2024 election. But with Election Day just weeks away, many may not be able to enjoy that right. 

Patrick Berry is a counsel in the Brennan Center’s Democracy Program, where he focuses on rights restoration and other issues related to voting and elections.

Erin Geiger Smith is a writer and editor at the Brennan Center for Justice.

Suggested Citation: Patrick Berry & Erin Geiger Smith, Nebraska Supreme Court Allows People Who Completed Felony Sentences to Vote, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Oct. 18, 2024), https://statecourtreport.org/our-work/analysis-opinion/nebraska-supreme-court-allows-people-who-completed-felony-sentences-vote