Felony disenfranchisement is back in the headlines. On Wednesday last week, the Nebraska Supreme Court heard arguments in a case brought by three citizens challenging an advisory opinion by Mike Hilgers, the state’s Republican attorney general, that a law passed earlier this year allowing felons to vote immediately after completing their sentences violated the state constitution.
As the New York Times notes, “The Nebraska debate comes as Republican officials in several states seek to tighten voter registration rules or reconsider when people with felony convictions should be eligible to cast ballots.”
But the Nebraska case is in many ways a strange one. To start, Hilgers’s opinion did not find that there is anything wrong with ending felony disenfranchisement.
Instead, he contends that the state legislature does not have the power to do so. In his view, “The act of restoring civil rights is a pardon and within the exclusive power of the Board of Pardons.”
That Board is in the executive branch. It is composed of the attorney general, the secretary of state, and the governor.
Hilgers’s view is odd because, all over the country, state legislatures set the terms of criminal punishments and determine who can and cannot vote. In many places, they have ended felony disenfranchisement.
It is also odd because, in 2005 when the Nebraska legislature passed a law saying that felons could vote but had to wait two years after the end of their sentence to do so, no one, including the Nebraska Attorney General’s Office, challenged its power to do so.
The Nebraska Supreme Court should quickly reject Hilgers’s contentions and let people who have paid their debt to society exercise one of the key prerogatives of citizenship. Its decision will have enormous consequences for the approximately 17,900 people in Nebraska who are barred from voting because of a felony conviction. That is about 1.3% of the total voting population.
Before looking more closely at what Hilgers is trying to do and at the case the court is considering, let’s recall a bit of the history of felony disenfranchisement in this country.
Today, as the Brennan Center for Justice notes, “The United States stands alone among modern democracies in stripping voting rights from millions of citizens on the basis of criminal convictions. Across the country, states impose varying felony disenfranchisement policies, preventing an estimated 6.1 million Americans from casting ballots.”
Laws barring felons from voting first made their appearance in this country in 1792 when the Kentucky Constitution was ratified. That document stated that “Laws shall be made to exclude from… suffrage those who thereafter be convicted of bribery, perjury, forgery, or other high crimes and misdemeanors.”
Soon after Kentucky adopted this constitutional provision, felony disenfranchisement was written into the law of many of the newly formed states.
Debates about slavery and the aftermath of the Civil War gave added impetus to this practice. States passed laws in the late 1860s to disenfranchise felons and, in so doing, test the meaning of the Fifteenth Amendment’s extension of voting rights.
In the post-war South, white southern Democrats used felony disenfranchisement to deny those rights, invoking historical similarities between the legal statuses of enslaved people and convicted people as justification. Today, according to a report by the Sentencing Project, nearly 40% of the people disenfranchised by a felony conviction are Black.
That means, as the Brennan Center explains, that “One in every 13 voting-age African Americans cannot vote, a disenfranchisement rate more than four times greater than that of all other Americans. In four states, more than one in five black adults are denied their right to vote.”
Nonetheless, felony disenfranchisement survived many court challenges. In 1974, the United States Supreme Court found that it does not violate the Fourteenth Amendment guarantee of equal protection of the law.
Since then, the Court has turned aside numerous challenges to felony disenfranchisement, leaving it to the states to decide whether to continue to impose this additional penalty on criminal offenders.
Today, laws about felony disenfranchisement vary widely. In the District of Columbia, Maine, and Vermont, felons never lose their right to vote.
In 23 states, the National Conference of State Legislatures reports, “felons lose their voting rights only while incarcerated, and receive automatic restoration upon release.” In 15 other states, “felons lose their voting rights during incarceration, and for a period of time after, typically while on parole and/or probation. Voting rights are automatically restored after this time period.”
Under the law passed in April of this year, Nebraska joined this category. That law says, “In felony cases, when the sentence is not reversed or annulled, the person is not qualified to vote until they completed the sentence, including any parole term.”
Finally, in 10 states, “felons lose their voting rights indefinitely for some crimes, or require a governor’s pardon for voting rights to be restored, face an additional waiting period after completion of sentence (including parole and probation) or require additional action before voting rights can be restored.”
Nebraska has reformed its felony disenfranchisement laws gradually. In 2004, it took the first step when a legislative commission known as the Vote Nebraska Initiative recommended that the state adopt automatic restoration of voting rights upon completion of sentence.
The next year the legislature repealed lifetime disenfranchisement and provided for the automatic restoration of voting rights two-years after completion of sentence. That law restored voting rights to an estimated 50,000 Nebraskans.
The Brennan Center reports that in 2017, the legislature “passed a bill that would have repealed Nebraska’s two-year waiting period and provided for the automatic restoration of voting rights upon completion of sentence.” But Gov. Pete Ricketts vetoed it and “the legislature’s attempt to override his veto failed.”
That brings us to 2024, when by a vote of 35 to 76, Nebraska’s unicameral legislature repealed the two-year waiting period, and Gov. Jim Pillen allowed the bill to become law without his signature.
That brings us back to AG Hilgers.
Last month, two days before the law was scheduled to take effect, he issued his opinion that both the 2005 and 2024 laws are unconstitutional. As he put it, “The Constitution vests the Board of Pardons alone the power to grant pardons. A pardon is an act of grace that relieves a person of the legal consequences of his crime. A legal consequence of a felony is losing the right to vote.… The act of restoring rights is a pardon and within the exclusive power of the Board of Pardons.”
Following Hilgers’s opinion, Nebraska Secretary of State Bob Evnen directed local election officials not to register people with felony convictions or allow them to vote unless their voting rights have been restored by the pardons board.
That is where things stand. Thousands of felons who have finished their prescribed punishments are caught in legal limbo.
As the Nebraska Supreme Court takes up the question of who has the authority to restore their right to vote, it seems clear that Hilgers’ position would render the legislative power to grant and withhold the franchise a legal nullity. As the Brennan Center explains, “The Nebraska Legislature has the constitutional authority to restore voting rights to people who have lost the franchise as a result of felony convictions…. As the Nebraska Supreme Court has stated: The right to vote is a civil right…and the restoration…of the right to vote is implemented through statute.”
The 2024 bill, the Brennan Center observes, “leaves the restoration of all other civil rights squarely within the province of the Board [of Pardons]. Because the bill would not usurp any power that the constitution vests exclusively in the Board of Pardons, the bill presents no separation of powers problem…. Indeed, the establishment of a general rule for re-enfranchising people with felony convictions is peculiarly within the Legislature’s competence as it sits to pass general laws, not, like the Board of Pardons, to decide which individual offenders may deserve to be punished less or not at all.”
No separation of powers dispute should distract us from recognizing that felony disenfranchisement is a vestige of a shameful era in America’s past. The Nebraska Legislature deserves credit for consigning it to the dustbin of history.
The state supreme court should not let its attorney general stand in the way of accomplishing that end.
