Re-enfranchisement; Electoral College; election commissioners: our testimony

On March 15, Civic Nebraska Director of Public Policy Heidi Uhing testified on a trio of election-related measures at the Nebraska Legislature. Here is her testimony on the proposed legislation, as prepared.

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In support of LR4CA

This constitutional amendment is similar to LB20, a bill you heard from Sen. Justin Wayne to remove the current two-year waiting period before former felons are eligible to re-register to vote. We threw our support behind that bill, as we believe it to be more likely to garner support. But in principle, we support expanded voting rights, and there is precedent for this policy. In the District of Columbia, Maine, and Vermont, felons never lose their right to vote, even while they are incarcerated.  

In Nebraska, this bill would re-enfranchise the 5,306 people serving felony sentences, the 1,156 on parole, 4,057 on felony probation, and 369 people in jail who currently are unable to vote, totaling nearly 11,000 Nebraskans.

Just last Friday, Minnesota Gov. Tim Walz signed a bill to restore the voting rights of thousands of convicted felons in the state once they leave prison, instead of after completing parole. The law will go into effect July 1 and will allow as many as 55,000 formerly incarcerated felons to vote.

I’d like to take the opportunity to note, that if the state were to reinstate voting rights for those having served felony sentences, it should be obligated to also inform the public of this important change to our elections. The statewide public awareness campaign proposed by Sen. Slama’s LB535 seems like a great opportunity for cost savings to have that campaign about new voter ID procedures include information about how former felons are now eligible to vote.

In opposition to LB764

Maine and Nebraska are the only states that do not use a winner-take-all system. Instead, in these two states, one electoral vote is awarded to the presidential candidate who wins the popular vote in each congressional district, and the remaining two electoral votes are awarded to the candidates receiving the most votes statewide. This is known as the congressional district system.

It is possible under the district system to split the electoral vote for the state. This happened in 2008 in Nebraska: Barack Obama won the electoral vote in the congressional district including Omaha, while John McCain won in the state’s other two districts and won the statewide vote as well, securing the state’s two at-large votes. Thus, when the Nebraska presidential electors met in December 2008, there were four Republican electors and one Democrat. That election was the first time Nebraska’s electoral vote was split.

We think Nebraska and Maine got it right. The argument for our congressional district method is that it provides more localized representation. A district’s vote cannot be overridden by the statewide popular vote. This also puts districts in play that otherwise would be ignored in a presidential campaign. Because Nebraska’s second district can swing either way, it has brought more presidential candidates on the campaign trail and thus more opportunities for voters to engage with them directly.

For these reasons, we support the current method of awarding electoral votes and oppose LB764.

In support of LB364

Election commissioners in three counties – Douglas, Lancaster, and Sarpy – are currently appointed by the governor, while county commissioners do the appointing in Buffalo, Hall, and Platte counties. All told, these counties make up more than half of the state’s voting population.

Civic Nebraska has maintained that all county election commissioners, including those in the state’s most populous counties, should be accountable to the voters and be elected in accordance with the Nebraska Constitution. This has been our position since at least 2012 when we first brought it to legislators’ and state officials’ attention.

The statutes in question (1, 2) require counties that reach certain population thresholds to allow the governor or county boards to appoint county election commissioners. Civic Nebraska has asserted that these statutes are in violation of Article IX, Section 4 of the Nebraska Constitution, which defines “necessary county officers” and plainly states that those officers are to be chosen by voters.

In 2019, Nebraska Attorney General Doug Peterson was on one side of our legal action, but the Nebraska Secretary of State sided with the current law. The AG asked the Nebraska Supreme Court to 1) claim jurisdiction over the matter, and 2) rule that these state statutes are, in fact, in violation of our state Constitution. 

The Nebraska Supreme Court agreed to hear the case in 2019, but then moved it to Lancaster County District Court after the two sides could not agree upon a common set of facts by a Nov. 5, 2019, deadline. On Jan. 14, 2021, Judge Lori Maret ruled the statute was constitutional. The attorney general’s office then appealed the ruling, putting it back in the hands of the Nebraska Supreme Court. On Aug. 20, 2021, the court affirmed Judge Maret’s ruling, saying that the Legislature has determined that election commissioners and chief deputies are not county officers.

LB364 would then specify in the statute that election commissioners are, indeed, county officers, making them subject to an election just as other county officials are.

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