317 Neb. 800
Neb.2024Background
- In 2024 the Nebraska Legislature enacted L.B. 20, amending Neb. Rev. Stat. § 29-112 to provide that persons convicted of felonies are disqualified from voting only until they have completed their sentences, at which point the disqualification is "automatically removed." Related election‑statute language for registration forms was also changed.
- Two days before L.B. 20 took effect the Nebraska Attorney General issued an advisory opinion concluding L.B. 20 (and earlier L.B. 53) were unconstitutional because restoration of voting rights is reserved to the Board of Pardons; the Secretary of State then directed counties not to implement L.B. 20 and to use older registration forms.
- Two formerly‑felon relators (Spung and Jonak) and Civic Nebraska sought an original writ of mandamus in the Nebraska Supreme Court compelling the Secretary and county election commissioners to implement L.B. 20, use the statutory registration form, and register eligible applicants who completed their sentences.
- The Secretary defended primarily by asserting L.B. 20 is unconstitutional (separation of powers / pardon power), so he had no duty to implement it. Parties stipulated facts and the court received expedited briefing and argument; amici participated.
- The Nebraska Supreme Court (per curiam with multiple concurrences and dissents) concluded fewer than five justices found L.B. 20 unconstitutional, declined to sustain the Secretary’s defense, and issued a peremptory writ ordering implementation of L.B. 20 (including use of the statutory registration materials and registration of qualified applicants). The Court declined to require any affirmative ministerial act beyond rescinding non‑statutory disqualifications the Secretary had imposed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May respondents assert a statute's unconstitutionality as a defense in an original mandamus action? | Relators: Secretary should not be permitted to refuse to perform ministerial duties by invoking unconstitutionality; mandamus should compel compliance. | Evnen: Van Horn and related authority permit ministers to refuse to obey unconstitutional statutes; the constitutionality defense is available. | Court allowed the defense to be raised here but found the Secretary failed to establish unconstitutionality; mandamus issued (majority opinion treated constitutionality on the merits). Some justices would have avoided the constitutional question. |
| Does L.B. 20 violate separation of powers because only the Board of Pardons may "restore to civil rights" (thereby reenfranchising felons)? | Relators: The Constitution’s reenfranchisement clause is not self‑executing and does not assign exclusive restoration power to the Board of Pardons; Legislature may enact statutes to implement reenfranchisement. | Evnen: A pardon (including partial pardons) restores civil rights; the Constitution grants pardon power to the Board of Pardons, so the Legislature cannot constitutionally restore voting rights. | Majority: Respondents failed to prove L.B. 20 unconstitutional; historical statutes and practice show multiple statutory mechanisms have long existed for restoration, so L.B. 20 does not clearly violate separation of powers. Several justices dissented, finding L.B. 20 unconstitutional. |
| Does the phrase "unless restored to civil rights" require restoration of all civil rights (not only the franchise)? | Relators: "Civil rights" includes the right to vote and Legislature may restore voting without restoring every civil right. | Evnen: Article VI, § 2 uses plural "civil rights," so restoration must be complete (plural) and thus within the pardon power. | Court (majority): The respondents did not clearly prove that "civil rights" must be restored plurally in a way that invalidates L.B. 20; prior precedent and statutory history support that restoring the vote can be accomplished legislatively. |
| Is mandamus appropriate relief to compel (1) use of L.B. 20 registration forms and (2) registration of qualifying relators? | Relators: They have clear rights under L.B. 20; respondents have clear ministerial duties; no adequate remedy exists given imminent election deadlines. | Evnen: Implementing an unconstitutional statute would be illegal; mandamus should not issue. | Held: Writ issued. Court ordered Secretary and election commissioners to use L.B. 20 registration forms and to register qualified applicants who completed sentences; Court declined to order any affirmative ministerial act beyond rescinding non‑statutory restrictions imposed by the Secretary. |
Key Cases Cited
- Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866) (pardon restores civil rights and removes legal consequences of conviction)
- Van Horn v. State, 46 Neb. 62 (1895) (ministerial officers may refuse to obey statutes they reasonably believe unconstitutional; that defense in mandamus)
- State ex rel. Wright v. Pepperl, 221 Neb. 664 (1986) (ministerial officer cannot raise constitutionality as a defense where duty is to publish laws; court distinguished Van Horn)
- Ways v. Shively, 264 Neb. 250 (2002) (statutory restoration mechanisms and interplay with constitutional reenfranchisement language discussed; did not resolve separation of powers question)
- State v. Gnewuch, 316 Neb. 47 (2024) (recent discussion of presumption of constitutionality and overlap of governmental powers)
- Schroeder v. Simon, 985 N.W.2d 529 (Minn. 2023) (interpreting similar constitutional reenfranchisement language to permit statutory or pardon‑based restoration)
- State v. Philipps, 246 Neb. 610 (1994) (statute allowing judicial reduction of sentence held to intrude on executive pardon/commutation power)