Most civil servants are dedicated professionals. Some are lazy jerks dragging down the reputation of the whole field. Marge Simpson’s sisters Patty and Selma have served as avatars for the worst tinpot dictatorial bureaucrats for the last three decades. Now they’ve found their way into a Nebraska Supreme Court opinion as Justice Lindsey Miller-Lerman invoked the pair in her concurrence after the court forcefully benchslapped the state’s attorney general and secretary of state for attempting to steal back voting rights.
The case, State Ex Rel. Spung v. Evnen, arose from an effort by state executive officials to circumvent a 2024 statutory amendment that restored voting rights to convicted felons after they have fully paid their debt to society immediately. Prior to this amendment, state law still returned the right to vote, but required an additional two years after the completion of the sentence.
Secretary of State Evnen didn’t want to follow the law, so he asked for and secured an advisory opinion from Attorney General Mike Hilgers declaring the law unconstitutional based on a flimsy claim that it infringed upon the state’s executive branch pardon process — even though voting rights are not, in fact, pardons.
The state Supreme Court wasn’t amused.
And Justice Miller-Lerman took it further. As flagged by Tim Royers, president of the Nebraska State Education Association:
For a statute to be declared unconstitutional, the Nebraska Constitution requires the vote of five justices of the Nebraska Supreme Court. Neb. Const. art. V, § 2. Only the Nebraska Supreme Court declares statutes unconstitutional. The supermajority requirement is also well known. Patty and Selma at the Department of Motor Vehicles may not be constitutional scholars, but they know that they are expected to follow the law.
In fairness, there are some judges that aren’t living up to that “constitutional scholar” bar right now either. As an aside, it seems the governor filed an amicus in this case written by the daughter-in-law of notably ABA not qualified Eighth Circuit judge Steven Grasz. Small world! But the point remains that if the power to make constitutional proclamations exists anywhere, it’s not at the DMV. Just like it wasn’t the county marriage license clerk.
And it’s not the AG either.
Do we want to live in a world where every state employee who has a hunch a statute is flawed gets to ignore it? State officers who take the oath to follow the constitution are expected to follow that oath and not disregard their sworn duty to abide by the Nebraska Constitution, including its dictate in article V, § 2, that it is the Nebraska Supreme Court, not the Attorney General, who declares laws unconstitutional.
Marbury v. Madison called.
But the partisan chicanery runs deeper, because if the constitutional problem is “returning the right to vote” and not “eliminating the two year waiting period,” then it’s an argument coming a couple decades too late.
Way back in time, on March 18, 1996, the Attorney General’s office issued an opinion to “Lisa M. Perry, Administrative Assistant Nebraska Board of Pardons,” in connection with Neb. Rev. Stat. §§ 29-2264 (Cum. Supp. 1994) and 83-1,118 (Reissue 1994), in which it opined that the restoration of various civil rights, including the right to serve as a juror, serve as an elector, possess firearms, possess brass or iron knuckles, and hold certain licenses, could only be done by the Board of Pardons. See Att’y Gen. Op. No. 96023 (Mar. 18, 1996). So every day since 1996, and while § 84-215 was simultaneously in effect, the Attorney General’s office had the opportunity to test the constitutionality of restoring certain rights by statute. L.B. 53 became effective in 2005, but I am not aware of an opinion of this court or lawsuit challenging it. In sum, despite the existence of the procedure to do so via § 84-215, and other remedies, the Attorney General waited nearly two decades to challenge L.B. 53 during the election season of 2024.
Almost as though no one really had strong feelings about this until someone did some polling on the chances that Kamala Harris (or Joe Biden at the time) snags an electoral vote from Nebraska’s district-based electoral allocation regime and decided to suppress votes in Omaha at all costs.
Not that a Republican public official would attempt to abuse their office like that or anything!
On that note, despite the fact that the court ruled per curiam in favor of the statute’s constitutionality, Justice Miller-Lerman also noted that the court could’ve issued that opinion long ago but instead dragged it out until days before registration closed, functionally dissuading legally eligible voters from attempting to register while the case lingered on the docket. Per Bolts (h/t Election Law Blog)
The timing of the court’s decision gives advocates little opportunity to help people who might be confused about their voting rights because of Evnen and Hilgers: It came just two days before the Oct. 18 deadline to register to vote online. The cutoff for people to register in person is next week, Oct. 25.
Surely another coincidence.
(Opinion on the next page…)