They paid their debts to society. Nebraska still might not let them vote.
Four months ago, and 15 years after he got out of prison, Thomas Moore voted in his first presidential election.
He picked former President Donald Trump in Nebraska’s Republican primary and told everyone he knew that he’d voted.
Why We Wrote This
A story focused onThe integrity of American democracy is daily news these days. Still, voting rights have been quietly expanding for one group: those with past felony convictions. Pushback by two Nebraska officials raises questions about justice and redemption.
A Ph.D. who has opened and sold three businesses and now teaches entrepreneurship, Dr. Moore says reenfranchisement “gives people ... a sense of, ‘Yes, I can be a productive citizen after I made a bad decision.’”
But with Nebraska now pushing back against allowing those with felony convictions to exercise their newly regained right to vote, Dr. Moore says he is afraid to participate in the upcoming election. Voting illegally could bring criminal charges. The issue is before the state’s Supreme Court.
The Nebraska case weighs the redemptive power that the right to vote can have on those who’ve lost it, with the principle that voting rights come with responsibility to protect the integrity of elections. Thousands of Nebraskans with felony convictions could be denied voting rights under an opinion now under review by the Nebraska Supreme Court.
“It gets to the very fundamental nature of democracy,” says Danielle Jefferis, an assistant professor at the University of Nebraska College of Law. “Who has a right to cast a ballot?”
Four months ago, and 15 years after he got out of prison, Thomas Moore voted in his first presidential election.
He picked former President Donald Trump in Nebraska’s Republican primary, and he told everyone he knew that he’d voted. It took a trip through a washing machine to get the “I Voted” sticker off his shirt. Over the past 15 years, Mr. Moore’s earned a Ph.D. and opened and sold three businesses. He now co-owns a mental health agency in Florida and teaches courses on entrepreneurship in prisons and at a local community college in Lincoln, Nebraska.
But with Nebraska pushing back against allowing those with felony convictions to have a newly regained right to vote, Dr. Moore says he is afraid to vote in the upcoming general election. Voting, if that right is revoked, could bring criminal charges.
Why We Wrote This
A story focused onThe integrity of American democracy is daily news these days. Still, voting rights have been quietly expanding for one group: those with past felony convictions. Pushback by two Nebraska officials raises questions about justice and redemption.
So is participating in democracy worth the risk of destroying the life he’s rebuilt?
“The benefits don’t outweigh the costs,” he says in a telephone interview. “To risk being convicted of a crime to go vote, I’d rather just not vote.”
Nebraska is already in the news because of Republican efforts to shake up its electoral map. But this voter rights issue, a separate controversy, has also drawn attention to the Cornhusker State.
Dr. Moore is one of millions of Americans with felony convictions who have had their voting rights restored in recent decades. But he is also one of tens of thousands of Nebraskans now unsure about whether those rights have been taken away months before a pivotal presidential election. The issue is now before the Nebraska Supreme Court, but it could have broader implications.
While there is little evidence of widespread election fraud – from Russian interference, to mail-in voting, to noncitizen voters – the integrity of American elections has become a heightened concern. Meanwhile, a parallel push for protecting voter access has also gained momentum in recent years. That’s playing out in a growing number of states like Nebraska, where tens of thousands of people with felony convictions like Dr. Moore have recently cast ballots for the first time.
For those Nebraskans trying to start fresh after serving sentences, some say feelings of joy after regaining full citizenship have been replaced by fear and caution. At a time when U.S. democracy feels especially fragile, the Nebraska case weighs the redemptive power that the right to vote can have on those who’ve lost it, with the principle that voting rights come with responsibility, in order to protect the integrity of elections.
“It gets to the very fundamental nature of democracy,” says Danielle Jefferis, an assistant professor at the University of Nebraska College of Law. “Who has a right to cast a ballot? Who, and when, gets to decide who has that right?”
Who can restore voting rights?
The history of voting rights reform in Nebraska is one of conflict between the state’s legislative and executive branches.
A trio of governors has raised constitutional concerns with felony reenfranchisement legislation, with two of them issuing vetoes. The Legislature has nevertheless pressed on – in bipartisan fashion – insistent that its actions are lawful.
First, in 2005, lawmakers eliminated Nebraska’s policy of lifetime felony disenfranchisement by passing LB 53. The governor vetoed it, but the Legislature overrode the veto.
In 2017, the next governor vetoed a law that would have eliminated a two-year waiting period required by LB 53. A legislative override failed then, but earlier this year lawmakers passed LB 20, which would remove the waiting period.
Current Gov. Jim Pillen didn’t veto the law, but he didn’t sign it, either, referencing “significant potential constitutional infirmities.” Months later, and two days before the law was to take effect, Attorney General Mike Hilgers described those infirmities in an advisory opinion.
Both LB 53 and LB 20 are unconstitutional, he argued, because the power to restore voting rights to Nebraskans with felony records belongs exclusively to the Board of Pardons – a state body made up of him, Governor Pillen, and Secretary of State Robert Evnen. While the opinion isn’t legally binding, that same day Secretary Evnen instructed county election offices to stop registering residents with past felony convictions.
“If this policy is the right one, the only democratic way to implement it is through a constitutional amendment,” wrote Mr. Hilgers and Secretary Evnen in an op-ed last month.
Any other process, they added, is “inconsistent with over 100 years of our state’s history.”
Thousands of Nebraskans with felony convictions could now be denied voting rights under the opinion from Mr. Hilgers, now under review by the Nebraska Supreme Court.
But there are questions. The state constitution says the Board of Pardons has the power to restore civil rights to people with past convictions, but it doesn’t say the board has exclusive power to do so. The state Supreme Court has also held that statutes restoring some civil rights but not others don’t conflict with the board’s broader pardon power.
A pardon “nullifies all the legal consequences that might come with a felony conviction,” argued Jane Seu of the American Civil Liberties Union of Nebraska before the Supreme Court last month.
“Here, we’re just talking about voting rights and the restoration of voting rights,” she added. That “coexists with the executive pardon process.”
A ruling from Nebraska’s Supreme Court is expected soon – perhaps this week. But the clock is ticking. Nebraska’s voter registration deadline is Oct. 25.
Reenfranchisement and reform
Decades of research suggests that allowing individuals with past felony convictions to vote again makes them less likely to return to prison, easing their reintegration into society while increasing public safety.
In Minnesota, a study found that people with past felony convictions who voted in the 1996 election were only half as likely to be rearrested from 1997 to 2000 as those who didn’t vote. In a 2012 survey of disenfranchised citizens in Florida, almost 4 in 10 “directly connected their inability to vote to their perceived ability to remain law-abiding.”
For Dr. Moore – who also works for RISE, a nonprofit reentry program in Nebraska that campaigned for LB 20 – reenfranchisement “gives people ... a sense of, ‘Yes, I can be a productive citizen after I made a bad decision.’”
But a felony is a serious crime, and an increasingly common argument is that restoring voting rights for someone with a felony conviction is too important to be automatic.
In their op-ed, Mr. Hilgers and Secretary Evnen wrote that determining if someone should get their voting rights restored “can be assessed only on an individualized basis.”
Hurdles to voting
Officials in other states have come to similar conclusions in recent years. Florida, Tennessee, and Virginia are among the states that have added requirements for citizens with past felony convictions to meet before they can register to vote, including getting individual permission or paying a number of fines and fees. In Tennessee, for example, people have to pay thousands of dollars before they get voting rights restored.
So while over 2 million Americans with felony convictions have regained the right to vote since 1997, according to The Sentencing Project, as of 2022 more than 4 million of America’s 300 million citizens were still ineligible due to disenfranchisement laws. Furthermore, only a fraction of citizens with felony convictions who were eligible to vote in the 2020 election made it back onto voter rolls, according to a Marshall Project/USA Today analysis of four states.
National Conference of State Legislatures, Movement Advancement Project, Voting Rights Lab
“It has been very challenging for people with felony convictions to get their voting rights back,” says Nicole Porter, senior director of advocacy at The Sentencing Project.
This now includes upward of 100,000 Nebraskans, including many who, due to LB 53, have been voting for years. Whether they will be able to vote this November now depends on the state Supreme Court.
It’s a state of affairs that rankles Dr. Moore. But his biggest concern is not the future of his right to vote, but whether two state officials will be allowed to unilaterally refuse to enforce a state law.
“This is an issue, to me, of abuse of power more than it is voting rights,” he says.
“If [someone] can just throw a wrench in the election just by saying he decides it’s unethical and not right, that’s a bigger issue,” he adds. “If that is permitted, what’s next?”
