Back in July, Nebraska state officials illegally suspended the right to vote for tens of thousands of people. In a major 5–2 decision handed down Wednesday, the state Supreme Court ordered them to restore voting rights to citizens who have completed their criminal sentences, just nine days before the state’s voter registration deadline.
The decision could have a direct impact on the upcoming presidential election and race for control of the Senate—if those who are affected have time to take advantage of their restored rights.
Wednesday’s decision in Spung v. Evnen marks an overdue rejection of an illicit partisan scheme to swing Nebraska’s upcoming election by suppressing lawful votes. Last spring, the Nebraska Legislature enacted L.B. 20, which automatically restored voting rights to citizens convicted of a crime upon the completion of their sentence. Just after it was set to take effect, however, Attorney General Mike Hilgers, a Republican, issued an advisory opinion declaring that the law violated the Nebraska Constitution. Shockingly, Hilgers also declared that a different law passed in 2005, L.B. 53, was also unconstitutional. In response to this letter, Secretary of State Bob Evnen, also a Republican, promptly prohibited election officials from registering any would-be voter whose rights were restored by L.B. 20 or L.B. 53.
L.B. 20 would restore voting rights to more than 7,000 Nebraskans. L.B. 53 was estimated to restore voting rights to 59,000 Nebraskans when passed 14 years ago. Under a conservative estimate, then, these two laws reenfranchised at least 66,000 people. But about 2,000 Nebraskans have completed felony sentences each year since 2005, so the true number may well be higher. Regardless of the precise figure, the upshot is obvious: The voters affected by these laws could easily swing an election.
That’s especially true in 2024, when Kamala Harris’ path to the presidency may run through Omaha, Nebraska, a district granted its own electoral vote under an unusual state law. (A GOP plan to rescind Omaha’s electoral vote narrowly failed last month.) Nebraska has also abruptly become critical to Democrats’ efforts to block Republican control of the Senate: Dan Osborn, an independent, has mounted a remarkably competitive challenge to Republican incumbent Deb Fischer. If he prevails, Osborn could be the decisive vote in halting a GOP Senate takeover in January. (He has said he will caucus with other independents, all of whom currently caucus with Democrats.)
Hilgers and Evnen’s eleventh-hour plot to kill L.B. 20—and retroactively repeal L.B. 53—reeked of partisan desperation to help Republicans over the finish line in both these races. It prompted voting rights advocates, led by the ACLU, to file suit in the Nebraska Supreme Court, seeking an order forcing Hilgers and Evnen to follow the law. They argued, persuasively, that the voter reenfranchisement laws were obviously constitutional and that state officials have no authority to decree that a statute is unlawful and refuse to enforce it.
Hilgers and Evnen mounted a defense with backing from the state—including Republican Gov. Jim Pillen, who declined to sign L.B. 20 then filed a brief opposing it. These men argued that, under the Nebraska Constitution, citizens may only regain their voting rights by securing clemency from the Board of Pardons. Those seeking clemency must wait 10 years after the completion of their sentence, then plead with the board for a pardon. Relief is at the total discretion of the board—whose three members happen to be the same three officials attempting to stop reenfranchisement in this very case: Hilgers, Evnen, and Pillen. The pardon process is onerous and lengthy, with no guarantee of success; few people complete it. Yet Hilgers, Evnen, and Pillen declared that this process is the sole route by which Nebraskans can restore their civil rights.
The first problem with this argument is that it is contradicted by the state constitution, which does not state that the Board of Pardons holds exclusive power to restore civil rights. To the contrary, the restoration of civil rights is vested in a separate provision that makes no mention of the parole board. This process is one that the state Legislature is responsible for carrying “into effect.” So while the Board of Pardons may grant clemency, the Legislature holds primary authority for determining how the whole range of civil rights, including suffrage, are restored. Indeed, as Justice Stephanie F. Stacy wrote in concurrence, the state Legislature has been dictating the process of reenfranchisement since 1875, when the current constitution was ratified. Legislators were thus acting well within their powers when they decided that citizens should regain their right to vote without a pardon. Republican officials’ arguments to the contrary were not just wrong but in direct conflict with the text, history, and tradition of the Nebraska Constitution.
The second, equally obvious problem with the state’s argument is that it flouts the rules for holding a statute unconstitutional. The Nebraska Constitution declares that a law may be struck down in just one way: by a supermajority vote of the state Supreme Court. Unless five of the court’s seven justices believe a law is unconstitutional, it must remain in force. This requirement renders the state’s scheme to suspend L.B. 20 and L.B. 53 flagrantly illegitimate: State officials have no prerogative to unilaterally suspend the operation of a law that they personally believe runs afoul of the constitution.
This second problem lay at the heart of the Nebraska Supreme Court’s decision on Wednesday. In its unsigned opinion, the majority noted that five justices did not think the voting rights laws violated the state constitution. (In fact, only two of the seven justices believed the laws were unconstitutional.) So the court directed Evnen “to comply in all respects with the provisions of L.B. 20.” By extension, this order requires Evnen to comply with L.B. 53, as well, since L.B. 20 incorporates and expands upon the guarantees of the earlier statute. With this one decision, tens of thousands of Nebraskans have suddenly regained a right to participate in the 2024 election.
In theory, at least. In a scathing separate opinion, Justice Lindsey Miller-Lerman—the court’s lone Democratic appointee—faulted her colleagues for unduly delaying the outcome, effectively rewarding the state’s gamesmanship. Miller-Lerman noted that the court could have easily issued Wednesday’s order months ago. Instead, it expanded the scope of the case, agreeing to consider the broader constitutionality of these laws rather than simply ordering officials to follow them. Miller-Lerman accused her colleagues of choosing to “enable” the state’s “games,” delaying resolution by letting Higlers and Evnen raise a constitutional defense to their lawbreaking in the first place. The court, she wrote, blessed a regime in which “state officers can ignore statutes they think are flawed and wait to be sued, whereupon they present the constitutionality of a statute as a defense.” By declining to order relief last summer, the justices warned, her colleagues became complicit in the state’s “apparent scheme” to break the law.
Miller-Lerman’s concerns are well-founded. Online voter registration in Nebraska ends in two days; in-person registration ends in nine. The many citizens who just won back the franchise have precious little time to exercise their rights. Civil rights groups had intended to spend the summer educating Nebraskans about the changed law and registering newly qualified voters. They now have just days to get the message out. By sitting on the case for so long, the Nebraska Supreme Court accomplished much of what Republican officials set out to do, preventing a significant number of qualified voters from participating in the 2024 election.
Will the lawbreakers face consequences? Mark Porto, who serves on the Nebraska Criminal Defense Attorneys Association board of directors, told me that Evnen’s actions may amount to criminal conduct. He pointed to a state law making it a misdemeanor for any “public servant” to knowingly violate a statute “relating to his official duties.” The secretary of state, Porto wrote, “directly instructed local election officials not to register people who the law specifically said were eligible to vote.” His conduct “would seem to fit exactly” what Nebraska law prohibits.
It seems unlikely that, after gratuitously permitting Evnen to perpetuate his plot for months, the Nebraska Supreme Court would allow such a prosecution. But the fact that state law expressly contemplates criminal penalties for such abuse of office illustrates how egregiously Evnen and his co-conspirators violated their legal duties. If Osborn loses by a small margin, or Harris falls just short in Omaha, the blame may lie with a handful of men who placed party loyalty above the law in a quest to repress civil rights.
