Nebraska Reverts to 19th-Century Voting Restrictions, Clouding Rights for Thousands

The Nebraska Voting Rights Restoration Coalition was ready for July 19. A new state law, Legislative Bill 20, would take effect that day, instantly granting voting rights to some 7,000 people with past felony convictions. Because the law requires state officials to do very little to notify people of their newfound eligibility, let alone to automatically register them, the work of contacting and assisting those affected would largely fall to community groups.

And so the coalition reserved ad space on print, digital, and radio platforms. It organized registration drives in Omaha and Lincoln, each to be held in the first days of the law’s enactment. Those events were to kick off a statewide campaign that would touch many more towns and cities, and go through late October, when Nebraska cuts off new voter registration ahead of the general election.

But the ads never ran. No one was registered at the events in Lincoln and Omaha. More than a month after its planned launch, the campaign has yet to begin.

That’s because two Republican elected officials in Nebraska—Attorney General Mike Hilgers and Secretary of State Bob Evnen—halted implementation of the new law, shutting down new registrations for people with past felonies and throwing into question the voting rights of tens of thousands of other Nebraskans who, until last month, were legally, unambiguously eligible to vote.

Nebraska voting rights advocates maintain hope that the actions of Hilgers and Evnen will be reversed soon, but they also worry that profound, lasting damage will have already been done: this registration shut-down has prompted so much confusion and fear, they say, that it could cause many people to disengage entirely with the democratic process.

On July 17, less than 48 hours before LB 20 was to take effect, Hilgers issued an advisory opinion stating that the new law was unconstitutional. But Hilgers didn’t stop there; he also declared unconstitutional a 2005 reform law ending lifetime disenfranchisement of anyone convicted of any felony; the 2005 law, Legislative Bill 53, allowed Nebraskans to vote two years after completing their sentences, a waiting period that LB 20 was set to eliminate. 

In his opinion, Hilgers wrote that the state Board of Pardons—a three-member body composed of him, Evnen, and Republican Governor Jim Pillen—has sole discretion over whether to restore someone’s voting rights. Right after Hilgers issued his opinion, Evnen, the state’s top elections official, emailed county-level elections offices, ordering that, based on the AG’s stance, “we will not be implementing LB 20 and will no longer register individuals convicted of felonies.”

These moves by Hilgers and Evnen shocked Nebraskans who have spent years pushing for voting rights restoration. The new law had overwhelmingly passed the Republican-controlled legislature earlier this year, and Nebraskans with past felonies have been registering to vote, and actually voting, for almost 20 years with little issue or outcry.

“For two guys, working with one mind, to come in and say, ‘Eh, you know what, never mind; we’re taking it back and also jumping in our political DeLorean and removing the law’—it’s outrageous,” Aaron Pettes, a formerly incarcerated organizer and advocate in Omaha, told Bolts. At 44, he’d been poised to vote this fall for the first time in his life. “When it was revoked, it was traumatic. It felt like I was back in prison,” he said. 

The nonprofit Civic Nebraska and three disenfranchised plaintiffs, represented by the state branch of the ACLU, sued Evnen and two county-level elections officials in late July, seeking to compel them to allow citizens who have finished all terms of their convictions to register to vote, in accordance with both the new reform law and the one that passed nearly 20 years ago. The state supreme court in early August agreed to hear the case, and plans to hold oral arguments on Wednesday.

“We didn’t have any problem finding plaintiffs, because so many people who had been excited to register to vote were so upset,” Adam Morfeld, a former state lawmaker who helped found Civic Nebraska, told Bolts. “It’s a mess.”

The mess, said Pamela Pettes, Aaron’s wife, has left many nervous about even trying to register. Mass confusion can be a potent voter suppressant, especially when people are scared they could be criminally charged for trying to register, as changes around felony disenfranchisement in states like Virginia and Kentucky have recently demonstrated. 

“There are so many questions going on surrounding this that people are scared,” said Pamela, who lost her voting rights almost 20 years ago due to a felony conviction, regained them in 2011 and then became a regular voter—and who now, thanks to state GOP officials, fears she has lost her voting rights once again. 

“People are scared they’re going to get charged with something if they try to vote and can’t vote, so a lot of people will just wash their hands of it—are already washing their hands of it,” she told Bolts. “They don’t want to go and vote unless they have a clear idea of what’s going on. They don’t have that.”

---

LB 53, the 2005 law, ended a Nebraska policy dating to 1875 that imposed blanket, lifetime felony disenfranchisement—a practice that as of 2005 was unusually harsh, and one which only persists today formally in Virginia, functionally in Tennessee, and hardly anywhere else in the world.

About 59,000 Nebraskans with felony convictions were instantly granted the right to vote after enactment of the 2005 law, which made people eligible two years after they completed their full criminal sentences—including parole, probation, and any debt of restitution. The reform disproportionately benefited people of color: Nebraska’s Black imprisonment rate is almost 10 times higher than that of white residents, an unusually high disparity that is about 50 percent above the U.S. average. Latinx and Native American people are also dramatically overrepresented in Nebraska jails and prisons.

The ACLU of Nebraska reports that, in addition to the 59,000 people whose voting rights were restored in 2005, another 38,000 have gained voting rights in the 19 years since, thanks to that reform. But advocates for rights restoration say that many of the people made eligible by that law still never registered; it’s not always realistic, they say, to expect people already grappling with all the challenges of prison re-entry to keep track of a two-year countdown clock and maintain interest in registering once that clock expires. 

Jake Shaddy, who was previously incarcerated in Nebraska and now runs a group of halfway houses in Omaha, says there’s an information void around voting rights for currently and formerly incarcerated people. He says he has spent years believing he’ll never be able to vote again, and that he knows many who think the same.

“A lot of people who’ve been incarcerated give up on politics and tune off, because they feel like it doesn’t apply to them,” Shaddy told Bolts. “I’ve worked with probably over 500 guys at my halfway houses, maybe more, and they are all under the impression they are unable to vote.”

This environment of misinformation was a primary target of LB 20, the law that passed this year. Advocates in Nebraska worked for many years to get rid of the two-year waiting period baked into the 2005 law, because, they argued, immediately restoring people’s voting rights upon sentence completion would reduce uncertainty and fear over voting for people with prior convictions.

Though it took years of sustained advocacy to become law, LB 20 ultimately proved quite popular in Nebraska’s legislature. It was introduced by a bipartisan group of lawmakers, then passed the statehouse by a vote of 38-6 in April. Governor Pillen declined to sign the bill, but he also declined to veto it, and so it went into law.

In his opinion calling LB 20 unconstitutional, Hilgers challenged the legislature’s ability to restore people’s voting rights and said those powers rest solely with the state’s pardons board—in other words, up to the discretion of just him, Pillen, and Evnen, the secretary of state. 

“A pardon is an act of grace that relieves a person of legal consequences of his crime. A legal consequence of a felony is losing the right to vote,” Hilgers wrote in his opinion. “Restoring that right is an act of grace that undoes a legal consequence of a crime. In other words … (T)he act of restoring civil rights is a pardon and within the exclusive power of the Board of Pardons.”

The ACLU, Civic Nebraska, and many others argue this is out of step with existing law. The state’s supreme court has traditionally agreed: In a 2002 case, it ruled that the legislature can determine through statute policy concerning voting rights restoration. State court precedent also casts doubt on Evnen’s interpretation of Hilgers’ recent opinion; in a 1983 case, the court determined that an attorney general’s opinion “has no controlling authority on the state of the law discussed in it.”

Evnen’s decision to order county officials to cease registration of people with past felonies has not only reversed the will of the many lawmakers who supported the reform, but has also drawn the ire of his immediate predecessor. John Gale, a Republican who served as Nebraska’s secretary of state from 2000 to 2019, signed on to a brief in support of the lawsuit pending now at the state supreme court. That brief predicted that Hilgers and Evnen abruptly upending state law on voting rights “would lead to disorder in this year’s general election.”

“Secretary Evnen and I are old friends,” Gale added in a press announcement last week. “In this case, I strongly believe the Nebraska Legislature acted with clear authority and LB 53 and LB 20 should be enforced as the law for the 2024 election and future elections.”

If Hilgers’ opinion were to hold up, it would carry heavy consequences moving forward; Nebraska releases more than 2,000 people from prison every year, and those people would re-enter society under a legal presumption of lifetime disenfranchisement. After his order to county elections officials, Evnen promised to seek approval from the pardons board to restore the rights of people who had registered since the 2005 reform, though he has put that on hold pending a state supreme court ruling.

Danielle Jefferis, an assistant professor of law at the University of Nebraska-Lincoln who studies criminal punishment, said Hilgers’ opinion, and Evnen’s subsequent order, are not only constitutionally unsound, but cruel. 

“There’s just so many ways in which the criminal legal system dehumanizes people, including taking away their democratic voice,” she told Bolts. “To get that voice back, it’s a way of feeling like a human again, a way of feeling like a member of the community again. Yes, you made a mistake, yes, you owed society a debt, but you paid that debt. And for the attorney general to issue that decision so abruptly—it’s hard to find another word than whiplash.”

---

Aaron Pettes was convicted at 18 and sentenced to a term of incarceration, and then probation, which he only just finished in January. He works today at RISE, Nebraska’s largest nonprofit organization promoting successful community re-entry for people as they transition from incarceration back to free society. He talks often with the people he serves about voting, and was himself excited to finally vote this fall. He had been thinking lately about which candidates and issues he’d support in November. 

Aaron says he will be ready to register if and when the state supreme court, which has a conservative majority, rules against the actions of Hilgers and Evnen. But he’s doubtful that other formerly incarcerated people he works with every day would do the same. 

Aaron says the recent loss of voting rights and the continued uncertainty over them, even for those who’ve completed a sentence, is just one of many ways government subjects people to unending punishment and demoralization.

“Incarceration just confirms to people that this system shouldn’t garner any support from them, because it’s broken, and then they get out and they’re not welcomed back into the community but allowed back in, with minimal rights, minimal resources, and the system waiting to trap them again,” he said.

Against that backdrop, Aaron says he’s often found it challenging to convince formerly incarcerated people to vote. They were typically skeptical before Hilgers’ bombshell, and are even more so now, he says.

“You tell them to come out and vote, that they can make a difference, and they’re finally like, ‘OK, fine,’” Aaron added. “Then this happens, and they’re like, ‘See, I told you.’”

RISE is a part of the Nebraska Voting Rights Restoration Coalition, which was poised to launch the statewide campaign to convince people their vote matters, and to then help them exercise it. The group remains ready to make that case if LB 20 and LB 53 are ever restored, but Aaron isn’t optimistic about restarting the engine. 

“After all this, to encourage people to re-engage, it’s going to be difficult,” he said. “We were right there, and with one swoop of a pen we were ushered out again.”

Tommy Moore of Lincoln, Aaron’s colleague at RISE, has been out of prison since 2009 and voting since he got off probation and finished his full sentence in 2013. He says he’s worked hard to chart a successful course post-incarceration: He earned a doctoral degree, started teaching at a community college, and now works to improve local systems of mental health care and prison re-entry services. Voting, he says, is one part of his overall mission to contribute positively to society. 

But Moore says the present uncertainty over his voting rights in Nebraska makes him wary to even attempt to participate in this election, regardless of what the state supreme court may command in coming weeks. He says he is too afraid of being accused of breaking election law.

“I do not plan on voting, which is really sad because it’s a pretty critical year,” Moore told Bolts. “I’m that concerned about going back to prison. I do not want to affiliate myself again with the opposite side of the criminal justice system. I never want to encounter that humiliation again, and I prefer not to vote than to take the risk.”