The ACLU handout sent out en masse prior to the 2022 general election in Nebraska came with a simple message to encourage previously incarcerated people to check their voting eligibility.
“KNOW YOUR RIGHTS”
With ballot initiatives impacting voter ID and the minimum wage, Nebraskans were given the opportunity to voice their preferences on policies that would have real and immediate impacts on their lives.
However, 17,960 Nebraskans — who will also be impacted by the election — weren’t given the option to vote at all.
In the state of Nebraska, people who have been convicted of a felony lose their right to vote until two years after the completion of their sentence, including parole and probation.
Jasmine Harris, director of public policy and advocacy at the Nebraska nonprofit RISE, which provides re-entry support to people who were incarcerated, said the waiting period was decided as an arbitrary number to garner bipartisan support to amend the Nebraska Constitution, which prior to 2005 permanently disenfranchised people convicted of a felony offense.
As a result, 17,960 people were barred from voting in Nebraska in 2022. Some, though their sentence is fully complete, still find themselves barred from the ballot box.
While the practice of disenfranchising people with felony convictions is not limited to the state, Nebraska is the only state to have a waiting period after the full completion of one’s sentence, according to the National Conference of State Legislators in 2021.
There are generally four types of restrictions a state places on felon voting rights: a person never loses the right to vote, a person gains their right to vote upon release from prison, a person gets their voting rights back upon sentence completion (including incarceration, probation, and parole) or voting rights are restored after fulfillment of additional requirements.
The fourth category, including Nebraska, comprises states with widely varying rules. Some of these states place restrictions on voting based on the type of felony, while others require gubernatorial pardons regardless of the type of felony conviction.
In Florida, a person must complete their sentence, parole and probation and pay additional fines. In states such as Iowa and Tennessee, felon voting rights are restored only upon a pardon from the governor, while in states such as Arizona and Wyoming, some felonies result in a revocation of rights requiring a gubernatorial pardon, while non-included felony convictions aren’t associated with rights revocation.
RISE, along with other in-state organizations such as ACLU Nebraska and Civic Nebraska, oppose the two-year waiting period.
Jason Whitmer, the interim co-president of ACLU Nebraska, said the law prevents people who were incarcerated from being able to participate in their own government. Whitmer is currently one of the 17,960 Nebraskans who, despite being released and in society, is denied the option to cast a ballot until 2027 – two years after his parole ends.
“You are going to choose to pay taxes, you are going to work, you are going to volunteer in your community, you are going to give back, you are going to be a good neighbor, but still, sorry you aren’t going to have a voice,” Whitmer said.
He said rehabilitation is important and it is important to consider the rights of those convicted of a felony. Not only are they people with worth, he said 95% of people with felony convictions are released and already deal with multiple barriers to re-entry, such as finding housing, employment and support.
Further, Mike Forsythe, the Voting Rights Program Director at Civic Nebraska, said the right to vote is an important and fundamental right that should be promoted and practiced.
“We feel that our democracy is at its best when more people participate. We are trying on a continual basis to remove barriers to the ballot box,” Forsythe said. “When these individuals are being released, they are going to be re-entering our neighborhoods. We should be doing everything that we can to try and make it, so they are able to adjust and re-enter into their community and neighborhoods and give them pathways to be successful. ”
Harris said the racial disparity is rife in the creation and maintenance of felon disenfranchisement, as a majority of people incarcerated in the U.S. prison system are not white.
Whitmer said discrimination against felons and over-incarceration are ways in which racial minorities are controlled and kept away from participating.
“If you look at our system, it drastically impacts people of color more, poor people more, and those are the people that people in power don’t want to have a strong voice in what’s going on,” Whitmer said. “You get someone in the system. You get them out of your system. Out of being able to have a voice in the system that you put in place.”
In 2017, Sen. Justin Wayne of Omaha introduced LB 75 to eliminate the two-year waiting period, allowing people convicted of felonies to regain their right to vote upon release from prison.
The bill passed through the senate on a vote of 27 to 13 but was vetoed by Gov. Pete Ricketts.
According to his veto letter to the Legislature, the decision was based on constitutional grounds, saying the legislature only has the authority to restore privileges – such as driving – and not rights. He said a repeal of the waiting period should be a constitutional amendment.
Senator Wayne said the constitutionality question is not so clear cut, stating that article 6-1 of the constitution reads that a felony conviction requires a pardon to restore someone with a felony to civil rights. However, he said LB 75 would not do so, claiming that a restoration to civil rights would also restore the rights to serve on a jury or hold a government office, as an example.
The letter also says a major factor in Ricketts’ decision concerns recidivism – or the tendency to re-offend.
“Requiring convicted felons to wait before allowing them to vote provides an incentive to maintain a clean record and avoid subsequent convictions,” he said in the letter.
Wayne, however, said recidivism was his reason for introducing the bill. He said community engagement is important for reintegration into society.
Despite this claim, the question of whether a waiting period reduces recidivism is not clear-cut. Advocacy groups in Nebraska working towards removing the waiting period say the law does not reduce recidivism at best and more likely works to increase it.
“Data we have on states that restore voting rights would indicate the exact opposite,” Forsythe said.
Harris agreed, saying the lack of communication from the government regarding voting rights status makes it hard to believe it is an incentive for good behavior.
“Many people don’t know they lose their right to vote. They’re supposed to be told. When they find out, they often don’t have the correct information on whether it’s a lifetime ban,” she said.
She said the idea that a waiting period prevents recidivism is counterintuitive, as civic participation is linked to less recidivism.
“What we do know is when people are active in their community, they are less likely to re-offend,” Harris said. “Holding a right over peoples’ heads doesn’t necessarily work in that way.”
Lawmakers failed to override the veto on a 23-23 vote. Harris said election season played a major part in the failure, as some legislators who voted for the bill did not vote for the override.
According to Harris, the governor was also a factor in the override vote. She said the governor had vowed to put money into campaigns opposing those who supported the override.
Adam Morfeld, a co-sponsor of the bill and former state senator, said the failure to override the veto could also be explained by more moderate legislators who were fine voting for the bill but did not want to step on the governor’s toes.
He said the implications for voting on a bill versus voting on the veto override are different, and it is hard to expect the same level of support on an override as there was on the bill itself.
Despite this setback, Wayne introduced an identical bill in 2021, but it did not win lawmakers’ approval.
Harris said it is harder to persuade legislators to devote time and energy to a bill that has been shut down recently before.
“After the veto and the non-override, it kind of lost its steam for the next bill knowing it could face the same kind of death,” Harris said.
Wayne said he plans to reintroduce the bill to the legislature this month. The new attempt has a better chance of succeeding than its predecessors, according to Wayne, as more people in the legislature are getting to know people affected by the law, their positions tend to soften.
Senator Suzanne Geist said she voted against LB 75, though she says she would now support an effort to remove the waiting period.
“At that time, I was just beginning my journey of investigating my way through corrections,” Geist said. “I’ve done some deep diving with corrections and law enforcement and that whole issue. So if that vote were taken today, I would vote differently than I did that day.”
According to Geist, the right to vote is a privilege paid for by those who protect the country. She said she now sees the right to vote as a symbol of our freedom and therefore should not be restricted past the duration of the sentence and parole.
“An emblem of our freedom, which is our personal right to vote, I think should be reestablished upon payment of their penalty,” Geist said.
She said she understands why people would vote no, having been on both sides of the issue. One such reason, according to Geist, is that the two-year waiting period is seen as a compromise. Since the original constitution banned felons from voting for life, she said some see it as a reasonable amount of time to wait.
Senator Robert Clements said those are also why he voted against LB 75. However, unlike Geist, he said he would still vote against a bill to remove the waiting period.
“Persons convicted of felonies have ignored and broken the law and have chosen not to participate in society. For many, many years, this was a lifetime ban,” Clements said. “Asking felons to follow the law and keep their record clean for two years is a reasonable compromise.”
He said the waiting period represents a chance for felons to prove they can maintain a clean record.
“Persons convicted of felonies have ignored and broken the law and have chosen not to participate in society,” Clements said. “They need to demonstrate a desire to be a part of society by following the laws.”
Forsythe said he is hopeful for the new attempt. He said Civic Nebraska, ACLU Nebraska, RISE and 13 other organizations are expected to support the initiative — something Forsythe said has yet to happen.
The 16 Nebraska organizations expect to send Wayne a signed letter of support.
“We could demonstrate to him that we have numbers, we’re organized, and we’re highly motivated,” Forsythe said.
He said the coalition would be fluid, taking on various tasks ranging from writing letters, testifying during hearings and recruiting volunteers to call senators.
On top of disenfranchising people for felony convictions, Harris said the waiting period is responsible for confusion among released felons, even those who are eligible to vote.
“Just this past week, we saw in Florida where rights were restored, but they made it so arbitrary where there were a few convictions that weren’t included,” she said.
Florida, which allows disenfranchised felons to restore their voting rights upon serving their sentence and paying their fine, also includes permanent disenfranchisement for certain convictions, such as sexual assault and murder.
“They arrested a lot of folks who they were saying committed voter fraud because they weren’t aware or educated on what that excluded,” Harris said.
While it appears nobody has been arrested in Nebraska for voter fraud due to this type of miscommunication, Harris said the waiting period causes its own type of confusion in Nebraska, when people who were otherwise eligible to vote were sent letters stating they were ineligible.
“At the end of 2020, we had the elections commissions sending out letters to folks who had felony convictions saying they weren’t eligible to vote,” Harris said. “They were in all actuality able to vote. There is human error that can occur when it comes to these things.”
With the two-year waiting period still in place and questions concerning policy impact and constitutionality, Harris said it is important to recognize we are dealing with people who have lives. These policies have intimate impacts on them.
“People are people,” Harris said. “Regardless of what their history is, you never want to be remembered for the worst thing you’ve ever done.”