By: George Townsend

When the Nebraska legislature meets in January 2020 one of the bills up for consideration will be LB 83, which would restore the right to vote to citizens convicted of felonies once they have completed their sentence and parole.

Currently citizens convicted of felonies in Nebraska must serve the entirety of their sentence, including parole and probation, and then wait an additional two years before their right to vote is restored. This two-year limit, imposed by state statute in 2005, is an arbitrary limit that applies to those convicted of felonies across the board, regardless of the length of their conviction or the nature of their crime. It makes Nebraska one of eleven states that extends felony disenfranchisement past the completion of the sentence term, and one of only a handful to impose disenfranchisement to felony convictions across the board, without accounting for the nature of the crime or for first-time offenses. A 2017 report from Civic Nebraska found that there were over 7,000 citizens who had already completed their sentences but were still denied the right to vote by the waiting period, and that disenfranchisement effected 5.6% of black Nebraskans compared to only 1.2% of the population as a whole.

Although the two-year waiting period has only been in place since 2005, this is not the first time the legislature has attempted to have it removed. In 2017, Senator Justin Wayne introduced a similar bill, which received majority support in Nebraska’s unicameral legislature, but was vetoed by Governor Pete Ricketts. During the legislature’s 2019 session, Senator Wayne reintroduced the proposal in the form of LB83, and the proposal was considered at a hearing of the Government, Military and Veterans Affairs Committee on March 6. Because the Nebraska legislature is only in session for several months at the beginning of each year, the bill will not be subject to a vote until January of 2020 at the earliest.

It is not readily apparent that the circumstances have shifted significantly since Senator Wayne’s first introduced LB 75. That version passed the Senate by a vote of 27 to 13. However, the attempt to override the veto failed 23-23, short of the 30 votes required by the state constitution. The 2018 midterms shifted the makeup of the majority-Republican Senate, but not enough to flip the chamber: Republicans had a 30-16 advantage before the election, which fell to 30-18 after (a vacancy and a third-party officeholder account for the shift in the total number of major-party seats). Republican Pete Ricketts remains the governor of the state, and has offered no indication that he would refrain from vetoing the measure a second time.

However, the conversation around felony re-enfranchisement has shifted some in the years since LB 75. Florida voters passed a ballot initiative in 2018 restoring the franchise to former prisoners in the state, which captured national headlines and facilitated a public conversation about voting rights, prisoner reintegration, and the rippling effects of racial discrimination in the criminal justice system. Closer to home for the Nebraska legislature, the March 6 hearing before the Government, Military and Veterans Affairs Committee featured hours of emotional testimony from recently re-enfranchised citizens, legal experts, and activists in favor of LB 83. Senator Wayne himself spoke about the early days of the state and how racist lawmakers wrote felony disenfranchisement into the state constitution as an intentional tool to steal the voting power of black Nebraskans newly enfranchised by the Fifteenth Amendment.

“This is a bigger issue than just voting,” said Senator Wayne. “This is an issue that we have to send the right message that we are erasing, not from history, but from the legacies of slavery issues that still go on today.”

The opposition to LB 75 (and, presumably, LB 83) voiced by the governor in his veto letter was couched in state constitutional claims based on the language of Article VI, section 2 of the Nebraska Constitution, which states that “[n]o person shall be qualified to vote . . . who has been convicted of treason or felony under the laws of the state or of the United States, unless restored to civil rights.” The governor’s veto letter also cited Article IV, section 13, which provides the governor, attorney general, and secretary of state the power to grant pardons and commutations. Ricketts claims that this section precludes the legislative branch from restoring civil rights to those convicted of crimes.

However, the statute that created the two-year waiting period, R.R.S. Neb. 32-313, is itself a path to rights restoration created by the legislature, and the governor has not even attempted to explain how a legislative amendment to the procedure would be any less constitutional than the 2005 provision it amends. Furthermore, during the same legislative session in which he vetoed LB 75, Ricketts signed a bill that gave those previously convicted of felonies the right to own crossbows, bows, and knives, indicating that he is not so much concerned with the legislature abrogating executive power to restore civil rights to citizens convicted of felonies as he is with those same citizens having the right to vote.

At the moment, there is little to indicate that LB 83 will meet with a different result than its predecessor LB 75 in the upcoming legislative session. But if nothing else, the efforts of Senator Wayne and others in the senate will continue to draw attention to the problem of disenfranchisement in Nebraska. Through that effort a future legislature, or a future governor, may be better inclined to take up the work of restoring the fundamental rights of those who have already paid their debt to society.

“We know this history behind this. The question we have right now is, do we have the courage to change it?” asked Senator Wayne in his hearing testimony. “The governor vetoed [LB 75]. Will he do the same [to LB 83]? I don’t know, nor do I care. We are a legislative body. We have a duty to make sure we protect people’s rights to vote and not disenfranchise people after they completed their sentence.”

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