In State ex rel. Spung v. Evnen, the Nebraska Supreme Court rejected a constitutional challenge to a Nebraska statute that automatically restores a felon’s right to vote when the felon completes his or her sentence.[1] Each of the seven justices authored a separate opinion exploring the procedural posture and separation-of-powers questions the case raised.[2]

Background

State ex rel. Spung v. Evnen teed up a classic “who decides” question of state constitutional law. Under the Nebraska Constitution, a convicted felon is stripped of the right to vote “unless restored to civil rights.”[3] The question in Spung was who has the authority to “restore civil rights” to felons: the legislative branch or the executive branch?[4]

In 2005, the Nebraska Legislature passed a statute that “automatically” granted a felon the right to vote “two years after he or she has completed the sentence” for the felony conviction.[5] In 2024, the Legislature amended the statute to remove the two-year waiting period in a bill known as L.B. 20.[6] Under the new law, the right to vote is automatically restored when a felon completes his or her sentence.[7]

Shortly before the law took effect, the Nebraska Attorney General published an opinion that concluded that L.B. 20 was unconstitutional.[8] According to the opinion, Nebraska’s Constitution vests the power to restore a felon’s right to vote in the Board of Pardons because only the Board of Pardons can relieve the legal consequences of a crime.[9] The Nebraska Constitution divides the “powers of the government . . . into three distinct departments” and provides that no department “shall exercise any power properly belonging to either of the others except as expressly directed or permitted in this Constitution.”[10] Given this, the Attorney General determined that the Legislature cannot, consistent with the separation of powers, provide for the automatic re-enfranchisement of felons because statutory re-enfranchisement encroaches upon the Board of Pardons’ exclusive power under the constitution to issue pardons.[11] In reliance on the Attorney General’s opinion, the Secretary of State directed county election officials not to register to vote any person who had been convicted of a felony and who had not been pardoned by the Nebraska Board of Pardons.[12]

In response, three Nebraska residents and a nonprofit organization petitioned for mandamus in the Nebraska Supreme Court.[13] The individual relators were convicted felons who had completed their sentences but had not received a pardon from the Board of Pardons. They sought to compel the Secretary of State and local election commissioners to register them to vote under L.B. 20.[14] The Secretary defended his actions by arguing that L.B. 20 violated the separation of powers and that he could not, consistent with the constitution, implement its provisions.[15] The relators argued that both the Board of Pardons and the Legislature had the constitutional power to restore civil rights, including the right to vote.[16]

The Nebraska Supreme Court agreed to hear the case as an original action. It ordered the parties to stipulate to facts and to brief and argue the case on an expedited timeline so that it could decide the case before the voter-registration window closed for the 2024 general election.[17]

The Court’s Opinion

The Nebraska Supreme Court decided the case in a panoply of opinions that span ninety pages in the Nebraska Reports. In what may be a first in Nebraska, each of the seven justices on the court authored a separate opinion.

In Nebraska, “No legislative act shall be held unconstitutional except by the concurrence of five judges.”[18] In a short per curiam opinion, the court explained that, based on the separate opinions, fewer than five justices would hold that L.B. 20 violates the separation of powers. Because the Secretary failed to establish that automatic legislative re-enfranchisement is unconstitutional, the court issued a writ of mandamus ordering the Secretary to comply with L.B. 20.[19] The upshot of the court’s decision is that felons in Nebraska are automatically restored to their right to vote when they finish serving their sentence.

Concurrences

Chief Justice Michael Heavican (who has since retired) concurred with the judgment but noted that he would not address the merits of the case. In his view, the expedited timeline for briefing and argument in light of the looming general election did not allow the court sufficient time to explore the complex historical questions necessary to resolve the case.[20] The Chief Justice was “not confident that we have given, or were able to give, this important issue the attention and consideration it deserves in advance of the deadlines for voter registration.”[21]

Justice Stephanie Stacy’s concurrence addressed both the procedural posture and the merits. On procedure, Justice Stacy acknowledged that, under longstanding Nebraska case law, an executive officer may refuse to implement a statute on the grounds that the statute is unconstitutional and may then argue that the statute is unconstitutional in mandamus proceedings.[22] But Justice Stacy questioned whether the court should continue to follow that precedent. She worried that allowing executive officials not to implement a statute if the Attorney General opines that the statute is constitutional may delay judicial review in future cases.[23]

On the merits, Justice Stacy observed that the Nebraska Constitution does not explicitly state which branch of government is tasked with “restoring civil rights,” and that the provision is not self-executing.[24] Because she found the text to be ambiguous, Justice Stacy studied the statutes in effect at the time of the Nebraska Constitution’s ratification in 1875, ratification-era judicial opinions, and the Legislature’s history of enacting statutes that implement the restoration of civil rights, including the right to vote.[25] In particular, Justice Stacy highlighted two 1875 statutes that restored civil rights to felons—one that restored civil rights upon receipt of a pardon and another that restored civil rights upon a felon’s receipt of a warrant of discharge based upon the felon’s good conduct.[26] She brought to light other similar statutes that were passed in the middle of the 20th century that showed that the Legislature had authorized the restoration of civil rights outside the pardon power.[27] Based on this history, Justice Stacy concluded that both the legislative and executive branches had historically exercised the power to restore civil rights and that the Secretary had failed to clearly establish that L.B. 20 violated the separation of powers.

Justice Jonathan Papik’s concurrence largely agreed with Justice Stacy’s historical analysis. In his view, the “early statutes appear to compel the Governor, and later the Board of Pardons, to restore the civil rights of certain offenders upon completion of their sentences.”[28] This statutory mandate, argued Justice Papik, cast doubt on the Secretary’s view that restoration of the right to vote was intended to be “left to the unfettered discretion of the pardoning authority.”[29] Justice Papik acknowledged that the Secretary’s separation-of-powers argument was plausible.[30] But in light of the Legislature’s historical role in restoring civil rights, Justice Papik did not have a “clear and strong conviction” that L.B. 20 was unconstitutional.[31]

Justice Lindsey Miller-Lerman concurred in part. She explicitly called on the court to abandon its precedent that allows state officers to challenge the constitutionality of a statute in a mandamus proceeding.[32] On the merits, Justice Miller-Lerman emphasized that the three branches of government may exercise overlapping powers.[33] Because the constitutional phrase “unless restored to civil rights” was written in the passive voice, she argued, the implication is that both the legislative and executive branches can restore civil rights, including the right to vote.[34]

Justice William Cassel wrote a brief concurrence in response to Justice Miller-Lerman’s opinion. Justice Cassel doubted that “an outbreak of statutory defiance among Nebraska’s ministerial officers” would occur if the constitutionality of a statute can be raised as a defense in a mandamus proceeding.[35] He also signaled his agreement with the separate opinions of Justices Stacy and Papik, finding that the Secretary had failed to carry his “high burden” to prove that L.B. 20 is unconstitutional.[36]

Dissents

Justice Jeffrey Funke (now Chief Justice Funke) authored the principal dissent. On the procedural dispute, he saw no reason to depart from Nebraska’s longstanding precedent that allows ministerial officers to argue that a statute they implement is unconstitutional in a mandamus proceeding.[37] On the merits, Justice Funke started with the pardon power.[38] Because pardons eliminate the legal consequences of crimes and the restoration of the right to vote relieves at least one consequence of committing a felony in Nebraska, Justice Funke concluded that restoring the right to vote is an exercise of the pardon power.[39] Justice Funke then turned to the separation of powers.[40] Under the Nebraska Constitution, the Board of Pardons alone is tasked with issuing pardons.[41] And the constitution provides that the “powers of the government of this state are divided into three distinct departments” and that no “department[] shall exercise any power properly belonging to either of the others except as expressly directed or permitted in this Constitution.”[42] Given Nebraska’s constitutional separation of powers, Justice Funke concluded that “the right to vote of those convicted of felonies under Nebraska law cannot be restored automatically by statute, but instead must be restored through the Board of Pardons.”[43]

Justice John Freudenberg dissented along similar separation-of-powers lines. He criticized the concurring opinions for “unnecessarily complex and significantly strained interpretations of historical statutes” and “unsubstantiated allegations of political misconduct upon elected officials of the executive branch for attempting to uphold their oaths to the Nebraska Constitution.”[44]

 

[1] 12 N.W.3d 229 (Neb. 2024).

[2] Id.

[3] Neb. Const. art. VI, § 2.

[4] Spung, 12 N.W.3d at 242.

[5] Id. at 234 (quoting Neb. Rev. Stat. § 29-112).

[6] Id.

[7] Id.

[8] Att’y Gen. Op. No. 24-004, Neb. Dep’t of Just. (July 17, 2024),

https://ago.nebraska.gov/sites/default/files/docs/opinions/AG%20Opinion%2024-004.pdf.

[9] Id. at 1–2.

[10] Id. at 2 (quoting Neb. Const. art. II, § 1).

[11] Id. at 18.

[12] Spung, 12 N.W.3d at 234.

[13] Id.

[14] Id.

[15] See id. at 235–36.

[16] See id.

[17] Id. at 235.

[18] Neb. Const. art. V, § 2.

[19] Spung, 12 N.W.3d at 236–37.

[20] Id. at 239 (Heavican, C.J., concurring).

[21] Id.  

[22] Id. at 240–41 (Stacy, J., concurring).

[23] Id. at 241.

[24] Id. at 244.

[25] Id. at 247–52.

[26] Id. at 247–48.

[27] Id. at 249–50.

[28] Id. at 255 (Papik, J., concurring).

[29] Id. at 256.

[30] Id.

[31] Id.

[32] Id. at 257–62 (Miller-Lerman, J., concurring in part and dissenting in part).

[33] Id. at 263–64.

[34] Id. at 265.

[35] Id. at 239 (Cassel, J., concurring).

[36] Id. at 240.

[37] Id. at 272 (Funke, J., dissenting).

[38] Id. at 273–74.

[39] Id. at 274–75.

[40] See id. at 274–77.

[41] Id. at 275.

[42] Neb. Const. art. II, § 1.

[43] Spung, 12 N.W.3d at 275 (Funke, J., dissenting).

[44] Id. at 281–82 (Freudenberg, J., dissenting).

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