Lawsuit targets Nebraska’s defiance of law to restore voting rights to those with felony convictions

OMAHA, Neb. (AP) — The American Civil Liberties Union of Nebraska has filed a lawsuit challenging top election officials’ defiance of state laws that restore the voting rights of those who’ve ever been convicted of a felony.

The ACLU filed the lawsuit Monday on behalf of three Nebraska residents who would be denied the right to vote under a directive from Secretary of State Bob Evnen, who recently ordered county election officials to not allow those with felony convictions to register to vote in November’s presidential election.

One plaintiff, T.J. King of Omaha, had planned to register as a Democrat and vote in this year’s election after finishing probation in 2022 following a prison term for drug and theft convictions.

“We have paid our debt in full, and we should be fully included in our democracy,” King said in a statement. “Being a productive member of society comes with many responsibilities, including jobs, bills and taxes. Those are essential, and so is having a say in who represents us and how tax dollars are spent.”

Of the two other plaintiffs, one had planned to register as a Republican and the other as an independent.

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Evnen based his decision on a July 17 opinion by the state attorney general that said a law passed earlier this year to immediately restore the voting rights of people who’ve finished serving their felony convictions violates the state constitution’s separation of powers. The opinion also found unconstitutional a 2005 law that restored the voting rights of people with felony convictions two years after they finished all the terms of their sentences.

“This opinion is non-binding and cannot overturn a law passed by the Nebraska Legislature,” the ACLU said in a statement.

Nebraska Attorney General Mike Hilgers’ opinion said only the state Board of Pardons can restore the voting rights of people with felony convictions through pardons, which are exceedingly rare in Nebraska.

Evnen sought the opinion from Hilgers. Evnen and Hilgers, along with Gov. Jim Pillen, make up the three-member Board of Pardons. All three are Republican.

Evnen’s office said it had not been served with the lawsuit Monday morning and couldn’t comment on it before reading it. Earlier in the month, he defended his actions, saying he believes the opinion was “extensively researched.”

With the election fewer than 100 days out, the ACLU filed the lawsuit directly with the Nebraska Supreme Court “given the nature and urgency of the case.”

At least 7,000 Nebraskans could be kept from voting in November under Evnen’s actions, according to the Nebraska’s Voting Rights Restoration Coalition.

Jonathan Topaz, an attorney with the ACLU’s Voting Rights Project, said state law makes clear that only courts can overturn a law as unconstitutional.

“Yet the secretary of state’s directive attempts to do just that, undermining the will of the voters and lawlessly reinstating permanent felony disenfranchisement by executive fiat,” Topaz said. “It would overturn a law passed by the democratically elected legislature, re-disenfranchise thousands of Nebraska citizens, and upend two decades of rights restoration law less than four months out from a presidential election. It cannot stand.”

The battle over allowing those with felony convictions to vote comes in a state that allows its presidential electoral votes to be split. Nebraska’s electoral votes tied to its three congressional districts go to whichever candidate wins the popular vote in that district. The state’s Omaha-centered 2nd District has twice awarded an electoral vote to Democratic presidential candidates — once to Barack Obama in 2008 and again to Joe Biden in 2020.

Evnen has denied that the opinion and his order to stop registering people convicted of felonies seems geared to disenfranchise a segment of voters only months ahead of a tight election, saying his actions aren’t “geared to do anything other than follow the Nebraska Constitution.”