7 J-------S, 8 Opinions

Unfortunately, in this instance, it's "Justices," not "Jews" (at least not mostly), which would have been funnier. The case is State ex rel. Spung v. Evnen, from the Nebraska Supreme Court, and deals with a state constitutional separation of powers question related to a felon reenfranchisement statute; the opinions are an unsigned per curiam announcing the judgment of the Court, with each Justice also writing a separate opinion (shades of the Pentagon Papers case, which had one per curiam plus an opinion from each of the nine Justices). Here's the per curiam:

The Nebraska Secretary of State (Secretary) announced in the summer of 2024 that he would not implement recent statutory amendments providing that individuals who have been convicted of felonies are eligible to vote as soon as they complete their sentences. The Secretary took the position that the statutory amendments were unconstitutional. Individuals who were convicted of felonies and who had completed their sentences responded by filing this action in which they seek a writ of mandamus directing the Secretary and two named county election commissioners to implement the 2024 amendments and allow them to register to vote. Because the requisite number of judges have not found that the statutory amendments are unconstitutional, we issue a peremptory writ of mandamus directing the Secretary and the election commissioners to implement the statutory amendments immediately….

The Nebraska Constitution divides the powers of state government "into three distinct departments, the legislative, executive, and judicial." Neb. Const. art. II, § 1. It also states that "no person or collection of persons being one of these departments shall exercise any power properly belonging to either of the others except as expressly directed or permitted in this Constitution." Id. This separation of powers provision has been a part of the Nebraska Constitution since 1875.

Provisions governing voting rights and elections have also been part of the Nebraska Constitution since 1875. The constitution provides that "[a]ll elections shall be free; and there shall be no hindrance or impediment to the right of a qualified voter to exercise the elective franchise." Neb. Const. art. I, § 22. Qualified voters are defined in article VI, § 1, of the constitution to mean "[e]very citizen of the United States who has attained the age of eighteen years … and has resided within the state and the county … for the terms provided by law … except as provided in section 2 of this article …." Article VI, § 2, identifies voters who are disqualified from voting. It provides, "No person shall be qualified to vote who is non compos mentis, or who has been convicted of treason or felony under the laws of the state or of the United States, unless restored to civil rights." Neb. Const. art. VI, § 2.

Also relevant to this case is the provision of the Nebraska Constitution that authorizes the granting of pardons and other forms of clemency. The 1875 constitution authorized the Governor to "grant reprieves, commutations and pardons after conviction, for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons." Neb. Const. art. V, § 13 (1875). That provision was amended in 1920 to transfer clemency powers from the Governor to a pardons board comprised of the Governor, the Attorney General, and the Secretary. See Neb. Const. art. IV, § 13 (1920). Currently, article IV, § 13, of the constitution addresses the pardon power and provides in relevant part: "The Governor, Attorney General and Secretary of State, sitting as a board, shall have power to remit fines and forfeitures and to grant respites, reprieves, pardons, or commutations in all cases of conviction for offenses against the laws of the state, except treason and cases of impeachment." …

[I]n 2024, the Legislature passed L.B. 20, which … [means the relevant state statute] now provides: "Any person sentenced to be punished for any felony, when the sentence is not reversed or annulled, is not qualified to vote until such person has completed the sentence, including any parole term. The disqualification is automatically removed at such time." …

Two days before L.B. 20 became effective, the Attorney General released an advisory opinion in response to a request from the Secretary. The opinion, as summarized, concluded that L.B. 20 and L.B. 53 violated the Nebraska Constitution because the constitution vests the power to restore a felon's right to vote in the Board of Pardons, not the Legislature.

The same day that the Attorney General released his opinion, the Secretary announced that he was "directing county election offices to stop registering individuals convicted of felonies who have not been pardoned by the Nebraska Board of Pardons." The Secretary informed county election officials that "we will not be implementing LB20 and will no longer register individuals convicted of felonies under the laws of Nebraska unless their voting rights have been restored by the Board of Pardons." …

The relators ask us to issue a writ directing the Secretary and the election commissioners to implement the reenfranchisement provisions of L.B. 20. They claim L.B. 20 grants individuals convicted of felonies who have completed their sentences a clear right to register to vote and, correspondingly, imposes a clear duty on the Secretary and election commissioners to permit such individuals to register through voter registration forms required by the statute. They also argue that because the 2024 general election will occur in a matter of weeks, they have no other adequate remedy at law…. The respondents argue that because the reenfranchisement provisions of L.B. 20 are unconstitutional, not only is there no clear duty for them to implement the statutes, but it would violate the law for them to do so….

As with any claim that a statute is unconstitutional in this court, the respondents' defense implicates article V, § 2, of the Nebraska Constitution, which provides in part: "No legislative act shall be held unconstitutional except by the concurrence of five judges." In this case, as demonstrated in more detail in the separate opinions that follow, fewer than five judges find that the reenfranchisement provisions of L.B. 20 are unconstitutional. Accordingly, the respondents have not established that the reenfranchisement provisions of L.B. 20 are unconstitutional….

As I read it, four Justices concluded that L.B. 20 was at least likely constitutional, because the Nebraska Constitution should be understood to reserve for the legislature some authority to restore voting rights; one Justice (Chief Justice Heavican) wouldn't reach the question; and two Justices concluded that L.B. 20 was unconstitutional. As a result, Nebraska's unusual supermajority requirement for invalidating statutes—the requirement that five of the seven Justices agree that a statute is unconstitutional before it can be invalidated—appears not to be dispositive here.

Comments

[John F. Carr]

In a case like this where the court is fractured and the decision is limited to its facts, a per curiam opinion alone would suffice.

[Lifetime Learner]

You left out the part where they mention The Simpsons:
https://notthebee.com/article/nebraska-supreme-court-rules-felons-who-complete-their-sentences-can-legally-vote

[gormadoc]

We're having an interesting election year in Nebraska. Fights about splitting our votes, dueling abortion ballot questions, the kerfuffle over the medical marijuana signatures, and this.

[The Margrave of Azilia]

"J___S"

I thought at first Prof. Volokh was finally editing out the racial/ethnic references.

[rrbrussell]

“Two days before L.B. 20 became effective, the Attorney General released an advisory opinion in response to a request from the Secretary. The opinion, as summarized, concluded that L.B. 20 and L.B. 53 violated the Nebraska Constitution because the constitution vests the power to restore a felon's right to vote in the Board of Pardons, not the Legislature.”

Where does the Attorney General get the opinion that the legislature cannot modify the rules regarding pardons? That is very similar to the idea that a legislature cannot change its mind in the future.

[gormadoc]

If the AG were right and it were unconstitutional because the Board of Pardons has sole authority then the legislature would need to amend the constitution as they changed their mind.

[rrbrussell]

I don’t see that argument raised however.

[David Nieporent]

Where does the Attorney General get the opinion that the legislature cannot modify the rules regarding pardons?

The AG's argument is this:

1. The Nebraska constitution says that convicted felons can't vote unless their voting rights have been restored.
2. The only way to restore convicted felons' voting rights is with a pardon.
3. The constitution vests the right to pardon in the pardons board.
4. Therefore, the legislature cannot restore convicted felons' voting rights, and the law purporting to do so is unconstitutional.
5. Therefore, county elections officials are ordered to ignore the statute and not to register convicted felons.

The various justices ruled in different ways (which was sort of the point of Prof. Volokh's post), but there were two main concerns: the first is that #2 is questionable, and the second is that #4 is outside the purview of the AG. Only the state Supreme Court, not the AG, gets to declare a state law unconstitutional. The state Supreme Court has not ruled the law unconstitutional, so therefore elections officials had a legal obligation to comply with it and register those people to vote.

[rrbrussell]

You missed my question. Where does the AG get the idea that the legislature cannot modify the rules around pardons. The enabling statute for the pardon board and the earlier version giving the governor pardoning power both say pursuant to applicable rules and law, and both versions say nothing about the pardoning power being exclusive.

The legislature has modified pardoning procedures several times in the past. The only modifications the AG takes exception to are ones restoring voting rights, which tells me the AG has a certain viewpoint and is searching for a way to enforce their viewpoint not follow the laws, rules, and regulations set down by the legislature.

[Rich Rostrom]

Years ago, James Taranto in his "Best of the Web Today" column noted a court decision in which the judge declared that the defendant's scheme "was intended solely to enrich Jews". He then found Mr. Jews "incredibly guilty". (Well, not in that exact phrase.)

I was hoping this would be a case in which some people, perhaps relatives of star outfielder David Justice, were mentioned by name.