Nebraska Supreme Court weighs felon voting law: How it could affect 2024 election

Elections and politics suddenly became more real to Aaron Pettes this summer when he learned that for the first time in his life he was eligible to vote.

The 44-year-old former felon in Omaha is one of an estimated 7,000 Nebraskans who would become immediately eligible to vote just in time for the 2024 presidential election under a law passed by the legislature this spring.

Pettes, who was sentenced to 17 years for bank robbery but got out two years early for good behavior, began researching the candidates, excited to study their policy positions and accomplishments before making a choice.

Then two days before the law took effect in July, Nebraska Attorney General Mike Hilgers, a Republican, issued an opinion declaring unconstitutional under the state constitution not only the new law, but also the 2005 law it was based on. That earlier law had already restored the right to vote to more than 90,000 felons over the past 19 years. Secretary of State Bob Evnen, a Republican, soon followed with an order instructing county election officials to reject the registration of any voter with a felony in their past.

“It felt almost like I was back in prison,” Pettes told USA TODAY. “When you’re in prison, the institution can do things just arbitrarily without any explanation at all. They do whatever they want, whenever they want, and there’s nothing that you can do about it, and so the decision to take my right to vote was almost traumatic. For one person to arbitrarily come in and snatch the legitimacy of my freedom without any type of hearing or discussion or challenge was just shocking to me.”

Now the Nebraska Supreme Court is weighing whether the state attorney general acted properly when he unilaterally declared that the two state laws were unconstitutional less than four months before Election Day. Advocates who have pushed to restore the vote for felons say they are worried that even if they win this disproportionately Black group of voters will not turn out this year out of fear of casting an illegal ballot.

The decision, which could come in the next month, could have major implications in the 2024 presidential election. Nebraska is one of just two states that divvies up its Electoral College votes. The statewide winner gets two Electoral College votes, and the rest are divided based on who wins each congressional district and some of Democratic nominee Kamala Harris’ potential paths to victory include winning Omaha and its suburbs in Nebraska’s 2nd Congressional District, which President Biden won in 2020. Democrats are also hoping to flip the Republican-held congressional seat in order to regain control of the narrowly divided House of Representatives.

A two-decade fight

In 2005, Nebraska enacted a law stipulating that people would become eligible to vote again two years after they completed their full criminal sentence — including parole, probation, and paying any fines, fees or restitution. The legislature overrode the governor’s veto.

An estimated 59,000 Nebraskans with felony convictions were immediately granted the right to vote under the 2005 law and another 38,000 have met the conditions to be eligible to vote again in the 19 years since, according to Civic Nebraska, one of the advocacy groups that lobbied for the measure and one of the plaintiffs in the ongoing suit.

In 2017, the legislature voted to remove the two year waiting period, but then-Gov. Pete Ricketts, a Republican, vetoed it.

A coalition of advocacy groups kept bringing the bill back to the legislature and the bill became increasingly popular. It passed Nebraska’s one-house, Republican-led legislature as L.B. 20 in April by a bipartisan 38-6 vote. Gov. Jim Pillen, a Republican, let it become law without his signature.

Two days before it was set to become law, Hilgers issued a nonbinding opinion declaring that L.B. 20 violates the Nebraska Constitution. The opinion also declared the 2005 law unconstitutional and stated that no one convicted of a felony offense — no matter how old the conviction — can lawfully vote in Nebraska without a pardon from the Board of Pardons.

The secretary of state then ordered local election officials to reject voter registrations of Nebraskans with a prior felony conviction except those voters who had received a pardon from the Board of Pardons.

It isn’t clear how many of the 97,000 eligible felons are among the 1.2 million people the Secretary of State’s office says were registered to vote in Nebraska as of Aug. 1 and are ineligible to vote under the secretary’s order.

Whether thousands of felons currently registered would ultimately be stripped from voter rolls or would be expected to withdraw the registration themselves is unclear. Federal law prohibits removing people from voter rolls within 90 days of a federal election.

It is also unclear how aggressively the state would punish felons who — possibly unaware of the legal change — vote in 2024 amid the uncertainty.

Evnen initially told county election officials that he would bring before the Board of Pardons a motion to pardon people with felony convictions who had registered to vote under the 2005 law, but he has since reversed course, saying the Board should follow the court’s decision.

Civic Nebraska estimates that 7,000 felons, including Pettes, would have been immediately eligible to register if the law took effect. The group had to scuttle a mass turn-out-the-vote drive and instead begin warning felons not to vote until they could sue.

More: ACLU brings lawsuit after pause on restoration of voting rights to Nebraska felons

If the justices side with the attorney general and secretary of state and deem the laws unconstitutional, state law will revert back to a 1875 Nebraska policy that imposed blanket, lifetime disenfranchisement for all felons unless specifically pardoned by the state Board of Pardons.

“The Attorney General’s opinion was basically saying that the law since 2005 was unconstitutional, which then prompts the question of, why now? Why on the eve of a presidential election and after two decades of returning citizens relying on the law passed by the legislature to register to vote and to vote and to participate in our democracy, why so shortly before an election is there now this dramatic upheaval in the law?” ACLU attorney Jonathan Topaz told USA TODAY after the hearing.

The secretary of state and attorney general’s office declined to comment on the case while awaiting the court’s decision. However, Evnen and Hilgers explained their reasoning in an op-ed in the Lincoln Journal Star Monday, arguing the Nebraska Constitution gives the power to restore voting rights to the executive branch, not the legislature, and that the legislature cannot change the constitution. The piece does not address why the attorney general is raising concerns now rather than while the legislation was deliberating.

In the op-ed, they stressed that restoring the right to vote must be a case-by-case decision.

“By virtue of their convictions, felons have displayed a lack of respect for the law. It is not unreasonable to conclude that those who commit child sexual assault, engage in domestic abuse, or those convicted of election fraud, have forfeited their right to vote, hold public office or sit on a jury,” it states. “What separates felons who may show little intent to re-engage with civil society from those who have truly turned their lives around can be assessed only on an individualized basis.”

If the justices side with the attorney general and secretary of state, it would also put the state at odds with how all but two U.S. states handle allowing felons to vote. Many state restoration processes were set by the legislature, according to data from the National Conference of State Legislatures.

“Attorney General Mike Hilgers and Governor Jim Pillen have failed to enforce the laws that should restore voting rights to felons who have served their time,” L.B. 20 sponsor and Nebraska State Sen. Justin Wayne, a Democrat, said in a statement to USA Today. “This disregard for the law is a disservice to our democracy. Restoring these rights is not just about justice—it’s about strengthening our society by ensuring every citizen’s voice is heard in building a more inclusive and just Nebraska.”

The court’s ruling is expected to have a disproportionate impact on the state’s Black population. Nebraska’s Black imprisonment rate is almost 10 times higher than that of white residents and about 50 percent above the U.S. average, according to 2023 data from the Prison Policy Initiative.

Both presidential campaign are taking winning Nebraska’s 2nd District electoral vote seriously. Republican nominee Donald Trump’s campaign recently sent his pick for vice president JD Vance to campaign in Omaha.

Democrats have poured money into get out the vote efforts there over the past several months and sent high-profile surrogates like Minnesota Gov. Tim Walz, a Nebraska native, to Omaha on one of his first solo trips after being selected as Harris’ vice presidential pick.

Nebraska Democratic Party Chair Jane Kleeb said in a statement to USA Today that the Republican state officials were motivated by a desire to hurt Democrats’ chances.

“Attorney General Mike Hilgers and Governor Jim Pillen deny the voting rights of people who served their time because they fear who they will vote for at the ballot box,” Kleeb said. “A law was passed after years of coalition building by Senator Wayne, and because Hilgers and Pillen think there are no consequences to their radical behavior, they are making up their own rules at the expense of Nebraskans who want to exercise their right to vote and their right to have a voice in their elected representatives.”

‘A land of uncertainty’

In a 30-minute oral argument Wednesday, the seven members of the Nebraska Supreme Court asked why the attorney general didn’t bring his own suit questioning the constitutionality of the new law and quizzed attorneys on both sides about precedent, but didn’t send strong signals about leaning toward a particular ruling.

The court could choose to resolve just whether the attorney general and secretary of state followed the proper procedure in striking down the laws, or could also address whether the underlying laws are constitutional.

University of Nebraska-Lincoln assistant law professor Danielle Jefferis said she expects the court will address both in an attempt to avoid further confusion.

“Unless the court issues a clear, definitive ruling on the underlying constitutionality, I think we continue to live in a land of uncertainty, which is not good for the election,” she said.

The court prioritized hearing the case, and advocates hope that means a speedy decision as well, perhaps by mid to late September.

Vote-by-mail ballots are mailed by Sept. 30. In-person early voting begins in Nebraska Oct. 7. The deadline to register to vote in the general election is Oct. 18.

‘Not going to risk going to cast a vote’

Tommy Moore, 54, of Lincoln, said he won’t chance getting on the wrong side of the law again.

“I’m not going to risk going to cast a vote,” he said. “I would have to have clear and concrete evidence for me to feel comfortable enough to vote again. I’d rather not vote than be accused of doing something wrong knowingly and willingly.”

Moore served 11 years for driving while intoxicated and manslaughter. A registered Republican, he regained the right to vote in Florida in 2014 and has voted in Nebraska since moving there in 2021.

Moore, who has a doctorate in business administration and finance, teaches college business courses for Southeast Community College at Nebraska State Penitentiary and runs his own business.

Being told he could no longer vote made it feel like his success since he got out didn’t matter.

“It felt like everything that I’ve accomplished up to this point was null and void, and that the mistake that I made as a 29 year-old was still being held against me at 54 years-old,” Moore said.

Advocates worry that even if they win the court case, felons will be afraid to turn out to vote.

Pettes said he and his coworkers like Moore at Rise, a nonprofit that helps people transition from incarceration back to free society, have spent a lot of time working to convince recently released felons to be less cynical about politics and the justice system.

“We convinced them that their voice did matter,” he said. “Convinced them with a lot of work — and then to have this happen, you almost feel responsible for it. Here we are making these promises, how things are going to be different now you have your vote back and, you know, and now they don’t. How do you get those people reengaged?”