Voting rights advocates sue to protect felon voting law

Gregory Spung of Douglas County talks about how excited he was to be able to vote thanks to Legislative Bill 20, the new law in Nebraska that lets people with felony convictions vote after serving their sentence. (Aaron Sanderford/Nebraska Examiner)

LINCOLN — Voting rights advocates sued Nebraska Secretary of State Bob Evnen on Monday, arguing that he unconstitutionally instructed county election officials to ignore a new state law letting people convicted of felonies vote after serving their sentence.

The lawsuit, bound for the Nebraska Supreme Court, clarified arguments that supporters of felon voting rights made two weeks ago, stating that only courts can stop a law, that the will of voters and lawmakers is being ignored, and that Evnen’s action threatens people’s freshly restored rights.

On July 17, Evnen announced he had consulted Attorney General Mike Hilgers about concerns Evnen and Gov. Jim Pillen shared that only the executive branch and the Pardons Board could restore the voting rights of people with felony convictions, not the Legislature.

Evnen said he based his decision on an informal attorney general’s opinion from Hilgers arguing that the Legislature had overstepped its constitutional authority, raising legal questions about separation of powers.

Evnen, Pillen and Hilgers, who make up the Nebraska Board of Pardons, contend that only the Pardons Board has the authority under the state constitution to restore a felon’s “civil rights.”

Two laws in question

The two laws at the core of the conflict are Legislative Bill 20, which eliminates a two-year waiting period to restore felon voting rights, and LB 53 from 2005, which established that two-year waiting period.

The lawsuit argues that Evnen, through his actions, usurped the Legislature’s authority by invalidating a new statute, LB 20, and that he did the same by now refusing to carry out the previous statute, LB 53.

“That remarkable, unprecedented, and unlawful action prompts this lawsuit,” the lawsuit explained.

The lawsuit echoed the argument that years of practice by state officials and court precedent indicate the Legislature has its own authority to restore voting rights in statute without running afoul of others’ constitutional powers.

Some critics of Evnen said he showed the Legislature too little deference on the constitutionality of newly passed laws, arguing that the law is the law until a court rules otherwise. Advocates said he sowed confusion among people about whether they are eligible to vote.

Lawsuit alleges infringement of rights

Those suing Evnen include three would-be voters and Civic Nebraska. ACLU Nebraska attorneys are handling the case.

RISE Nebraska, which works to help incarcerated Nebraskans and others involved with the justice system transition back into normal life, said Evnen’s decision had left more than 7,000 Nebraskans in limbo about who would be eligible to register to vote.

Many, including the three plaintiffs who filed the lawsuit with the Nebraska Supreme Court, were denied the chance to register to vote when LB 20 took effect this month. Early voting for the 2024 general election begins in two months.

The individual plaintiffs are John Thomas Jeffrey King (who goes by the name TJ King) and Gregory Spung of Douglas County, who also sued Douglas County Election Commissioner Brian Kruse, and Jeremy Jonak of Hall County, who also sued Hall County Election Commissioner Tracy Overstreet.

King, in a statement, said people who would be eligible to vote “have paid our debt in full, and we should be fully included in our democracy.” He said he and others like him deserve a say in who represents him and how they spend tax dollars.

Spung said he and others who have paid their debt to society deserve a chance to participate fully after having “made up for a past mistake.” He called the 2024 election important and said he was “excited that I could be a part of it.”

At a press conference Monday, Spung said he was deeply disappointed to lose the chance to vote. He said he chose to participate in the lawsuit because he wanted to help people in similar circumstances avoid similar roadblocks.

Jonak said Nebraskans deserve a second chance and said he wants to “make a difference — not just for my sake — but everyone else who has earned their second chance and has a right to vote.”

Thousands want to vote

Jane Seu, legal and policy counsel at ACLU Nebraska, said the three plaintiffs and thousands of other Nebraskans who want to vote in the November election understand what is at stake, the chance to vote and have their voices matter.

“These are Nebraskans who have done their time, who by state law have a right to vote, and who are working, paying taxes and contributing to our communities,” Seu said. “We are confident in the constitutionality of the laws that these officials want to ignore.”

Kruse declined to comment. Overstreet said her office was “following the directive of the Nebraska secretary of state” and referred questions to him. Evnen’s office had no immediate comment. Neither did Pillen’s or Hilgers’ offices.

Evnen has said he plans to ask the three-member Pardons Board at its Aug. 20 meeting to restore the voting rights of Nebraskans with felony convictions who registered to vote under the previous law, LB 53, which allowed voting after a two-year wait.

The Secretary of State’s Office said it “does not intend” to purge the state’s voter rolls of thousands of people registered under LB 53. But some argued the state risks legal problems with a two-tiered process.

TJ King of Black and Pink, speaking to a North Omaha gathering of voting rights advocates days after Evnen’s decision, said it is “super, super important for people if you’ve served your sentence and you’ve done your time … to move on with it.”

LB 20 was passed with a bipartisan 38-6 vote. But King said the push by Nebraska’s all-GOP executive branch starts to look political. It raises questions about who would worry about including more Nebraskans in the voting process and why, he said.

“It’s ludicrous to me that we’re actually having this conversation about people being able to vote,” he said. “Y’all are taking my taxes…. Why not be able to be present and be an advocate for the community I’m in?”

Editor’s note: This story has been updated to correct the plaintiffs’ names.

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