Nebraskans with felony convictions could be denied voting rights under attorney general's opinion

OMAHA, Neb. — Thousands of Nebraskans with felony convictions could be denied the right to vote under an opinion from the state attorney general released Wednesday that says a law passed earlier this year restoring the voting rights of people convicted of felonies violates the Nebraska Constitution.

Nebraska Attorney General Mike Hilgers said in the opinion that the law to immediately restore the voting rights of people who’ve finished serving their felony convictions violates the state constitution’s separation of powers. Only the state Board of Pardons can restore the voting rights of people with felony convictions through a pardon, he said.

Pardons are exceedingly rare to come by in Nebraska, which requires those convicted of felonies to wait 10 years after their terms to even file an application for a pardon.

Hilgers' opinion was issued two days before the new voting rights restoration law was to take effect. The American Civil Liberties Union of Nebraska said the opinion and efforts to block those with felony convictions from registering to vote could keep 7,000 Nebraska residents from voting in November.

Hilgers 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.

The opinion was sought by Republican Nebraska Secretary of State Bob Evnen. Hilgers, also a Republican and a former speaker of the Legislature, had been critical of the most recently passed law, as has Republican Gov. Jim Pillen and some Republican lawmakers in the officially nonpartisan Legislature. Evnen, Hilgers and Pillen make up the three-member Board of Pardons.

Based on the opinion, Evnen issued a statement late Wednesday afternoon saying he has begun directing county election offices to stop registering people convicted of felonies who have not been pardoned by the Nebraska Board of Pardons.

Evnen said he does not intend to remove from the voter rolls those with felony convictions who are already registered to vote. He also plans to request at the next Pardons Board meeting in August that those with felony convictions who registered to vote under the two-year waiting period law be allowed to stay on the rolls and vote.

Asked Wednesday why Evnen should defer to an attorney general's opinion — which does not have the weight of law or a court opinion — a spokesperson for Evnen said he “believes the opinion is extensively researched; therefore, the secretary will be following the opinion accordingly.”

Hilgers' office declined to comment on the opinion Wednesday.

It is at least the second time Hilgers has issued an opinion accusing the Legislature of wrongly encroaching on powers of the executive branch. Last year, he issued an opinion questioning the legality of inspector general offices that oversee the state’s prison system and the child services division of the Department of Health and Human Service — both agencies that come under the purview of the governor.

The same day that opinion was issued, the agencies blocked inspector general offices from investigating them.

Hilgers' latest opinion comes less than four months before a hotly contested presidential election 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.

This year, former President Donald Trump could need every electoral vote he can get in his bid to defeat Biden. If Biden were to win the Rust Belt swing states of Wisconsin, Michigan and Pennsylvania, an electoral vote from Nebraska would give him the 270 electoral votes he needs for victory — even if Trump wins all the other swing states.

Hilgers' opinion drew swift criticism from those who've advocated for restoring voting rights to those with felony records.

“They are trying to do whatever they can to block people from voting,” Nebraska Democratic Party Executive Director Precious McKesson said in a Facebook post.

The Nebraska Voting Rights Restoration Coalition berated the opinion and Evnen's order to stop registering those convicted of felonies and said it's “considering all options for immediate relief.”

“We cannot allow this decision to stand unchallenged,” the group said in a statement. “We stand with voters who have served their time and deserve to participate fully in our democracy.”

Evnen's office was asked to respond to criticism 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.

“Secretary Evnen believes this opinion isn’t geared to do anything other than follow the Nebraska Constitution,” Evnen's spokesperson, Jackie Ourada, replied.