In Nebraska, a person convicted of a felony loses the right to vote during their sentence. Once that person has completed their sentence – including parole – they must then wait an additional two years before their right to vote is restored.
Nebraska is one of only four states to disenfranchise all felonies for a period of time beyond a person’s sentence. The state’s policy remains one of the most extreme in the country.
1. Origins of Disenfranchisement
A history of felony disenfranchisement
Criminal disenfranchisement has existed in some form for our nation’s entire history. The notion of civil death, the idea that removal or separation from society is a legitimate punishment for serious crimes, was one of many ideas easily transferred from Great Britain to the new United States. The authors of the Constitution specifically rejected certain enactments of civil death like bills of attainder, but the Constitution’s deferral to individual states on electoral guidelines and definitions in Article I, section 4 made disenfranchisement possible on a state by state basis.
Many states included criminal disenfranchisement in their original state constitution. In 1791, Kentucky’s founding constitution declared, “Laws shall be made to exclude from office and from suffrage, those who shall thereafter be convicted of bribery, perjury, forgery, or other high crimes or misdemeanors.” This language was repeated with some slight variation in the founding of most state constitutions between 1791 and 1870. Notably, Nebraska’s founding constitution did not include a criminal disenfranchisement clause.
The ratification of the 15th amendment in 1870 marked the beginning of radical changes to voting laws in most states. Lawmakers openly discussed their desire and plan to prevent black voters from accessing their newly acknowledged right, and these plans were implemented in state constitutions throughout the country. When Alabama amended its constitution in 1901 to expand the list of crimes to be disenfranchised, the President of the constitutional convention told his colleagues that the purpose of the convention was, “within the limits imposed by the Federal Constitution, to establish white supremacy in this state.” Carter Glass, a delegate to the Virginia Constitutional Convention of 1902 who later served in Congress and as Secretary of the Treasury under Woodrow Wilson, frankly stated the intended consequences of Virginia’s new voting restrictions, which included poll taxes, literacy tests, and expanded criminal disenfranchisement:
We feel absolutely certain of its efficacy. We believe it will, if incorporated in the Constitution as the article of suffrage, emancipate the mind and make free the action of the dominant race in this State, restoring to us the natural right and inestimable blessing of independent thought and conduct upon the great economic and political issues of our time … This plan of popular suffrage will eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the Commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government.
Unfortunately, he was right. Legislative schemes enacted throughout the country decimated black political participation through blatant discrimination and brutality. Poll taxes and literacy tests were eventually banned, but criminal disenfranchisement laws remained untouched for decades and, regardless of intention, continue in many states to keep the electorate disproportionately white.
Nebraska held a constitutional convention almost immediately after ratification of the 15th amendment, and the convention adopted an amendment providing for criminal disenfranchisement. The constitution was adopted in 1875. The provision, lifetime disenfranchisement unless restored to civil rights, would remain unchanged until 2005, when the legislature established our current rule — voting eligibility is restored after the completion of an entire sentence, including probation or parole, and an additional two-year waiting period. Introducers of the bill have been transparent about the fact that the additional two-year waiting period was a political compromise to advance the bill from committee, not a component with any substantial policy value.
In 2017, State Sen. Justin Wayne introduced a bill to eliminate the additional two-year waiting period. The bill advanced from committee 6-1-1 and was passed by the Legislature but was ultimately vetoed by Gov. Pete Ricketts. An override was attempted but was not successful. A similar bill was introduced in 2018 and in 2020, but neither advanced from committee.
In 2020, State Sen. Machaela Cavanaugh introduced a constitutional amendment to eliminate criminal disenfranchisement entirely, except for treason. The amendment did not advance from committee.
Two states, Maine and Vermont, have no felony disenfranchisement. People vote in prison the same way people in Nebraska and most other states can vote from jail. Eighteen states only disenfranchise people who are in prison, while a 21 other states restore voting rights after completion of the entire sentence, including probation and parole. The few remaining states with disenfranchisement policies similar to Nebraska are quickly changing their policy. In 2018, Florida decided by statewide ballot initiative to restore voting rights after the completion of the sentence, and Iowa Gov. Kim Reynolds recently restored voting rights to most Iowans who have completed their sentence. Iowa’s recent change leaves Nebraska as the only state in the midwest with a policy of blanket disenfranchisement for a period beyond someone’s sentence.
2. Current Policy
Problems
Three central shortcomings in Nebraska’s current policy
If the state attempts to restrict a constitutional right, it has the burden to prove both the necessity and effectiveness of doing so.
Since 2005 when Nebraska first started changing disenfranchisement laws, there has been a fundamental flaw in how our policymakers approach the issue. This was clear in 2017 and 2019, when Senator Wayne and advocates were challenged to prove that changing our policy would result in a net benefit like reduced recidivism. In Governor Rickett’s 2017 veto letter, he said, “Proponents of LB 75 contend there will be an increased civic engagement by felons voting and that will help reduce recidivism. However, studies have failed to demonstrate a link between the restoration of voting privileges and reduced recidivism rates.” Vetoing a bill like LB75 because it isn’t guaranteed to make things better fails to recognize the obvious: 18-year-old citizens, as a default, have the right to vote. It’s not a privilege to be earned, it’s a constitutional right to be furiously protected. Under very specific and dire circumstances our constitutional rights can be infringed upon by the state. But we believe that when the state attempts to restrict any constitutional right, it has the burden to prove both the necessity and the effectiveness of doing so. The state of Nebraska has failed to prove both that our current policy of disenfranchisement is necessary and that our current policy does anything positive. The state has produced absolutely no evidence of reduced recidivism, no positive public safety impacts, just thousands of Nebraskans who cannot vote. Remember, the default position for 18-year-old citizens is: “you get to vote.” The state is the one infringing on Nebraskan’s constitutional rights. They ought to be able to prove why doing so is necessary and effective. They can’t.
The justification for Nebraska’s additional two-year ban on voting is based on the myth that restricting voting rights somehow encourages good behavior. Gov. Ricketts was very blunt about this idea in his LB75 veto:
Requiring convicted felons to wait before allowing them to vote provides an incentive to maintain a clean record and avoid subsequent convictions.
As is the case every time this argument is made, Gov. Ricketts simply asserted this claim without evidence and moved on. In fact, all available research suggests the exact opposite — that withholding the right to vote upon completion of a sentence encourages criminal behavior by making it more difficult to successfully reintegrate into society. Disenfranchisement, by definition, cannot encourage behaviors associated with successful reintegration, one of which is civic participation. Restricting the right to vote is considered by many experts to be a substantial barrier to rehabilitation. This is why the International Association of Chiefs of Police has long recognized civil rights restoration upon completion of a sentence as an important contributor to reducing recidivism by promoting successful re-entry into society.
While it is impossible to definitively prove causation between voting rights restoration and lower recidivism rates (doing so would require a level of variable control only possible in theory), it is worth reiterating that a) the burden is on the state to prove that their current restrictive policy is effective, which they’ve failed to do, but b) the limited data we do have, both qualitative and quantitative, points to restoring voting rights as a tool to reduce recidivism.
In 2011, the Florida Parole Board commissioned a report on the recidivism rates of individuals who had their voting rights restored. The report focused on recidivism rates between 2009-11. Comparing this data to a Florida Department of Corrections report analyzing the overall recidivism rate gives us a uniquely useful data set to discuss, quantitatively, the correlation between voting rights and recidivism.
The Florida Department of Corrections measures the three-year recidivism rate, meaning the return to prison within three years of release. The three-year recidivism rate for all Floridians consistently hovers around 25 percent. Between 2009-2011 specifically, the average three-year recidivism rate was 26 percent. The 2009-2011 three-year recidivism rate for Floridians who had their voting rights restored was 4.5 percent, less than one-fifth of the overall average.
The only available evidence, both quantitative and qualitative, indicates that restoring voting rights encourages prosocial behavior and discourages recidivism. This is an important issue not only for the civic health of our state but also for public safety.
Felon disenfranchisement leads to taxation without representation. It is not unusual for an incarcerated Nebraskan to pay property taxes, sales taxes, and income taxes. Our two year additional ban on voting also affects thousands of Nebraskans who are out of prison and paying taxes. This creation of a secondary-class of citizen, one who must pay taxes, follow the law, but not otherwise participate, has been decried by lawmakers, civil right groups, and religious leaders alike. The Nebraska Catholic Conference and Iowa Catholic Conference have both been strong advocates for restoring voting rights upon completion of the sentence.
In supporting Iowa’s recent policy improvement, the Iowa Catholic Conference argued, “Civic participation is a moral obligation of our faith teaching, and exercising the right and responsibility of participating as voters is a key component. Restoring the right to those convicted of a felony who have satisfied their debt is a measure of mercy, but also dignity and justice.
3. Policy
Solutions
Two meaningful policy solutions available to Nebraska
This idea has been championed by State Sen. Justin Wayne in the Nebraska Legislature, and is the bill that was passed and vetoed in 2017.
This bill would take us from our current, extreme position to a policy that is aligned with nearly every other state. This solution is moderate, measured, and would right a significant wrong.
Punishing people by restricting their right to vote for a period beyond their sentence is archaic, excessive, and completely unjustified.
Prisoners do not lose all of their civil rights upon imprisonment. Incarcerated Nebraskans maintain a variety of rights. According to journalist Jamelle Bouie:
Prisoners have freedom of worship. They can protest mistreatment and poor conditions. They can exercise some free speech rights, like writing for newspapers, magazines, and other publications.
If the state doesn’t automatically take away all of an incarcerated person’s rights, then we have to address one question: why, specifically, do we take away the right to vote? This returns to the state’s burden — the burden to prove both the necessity and the effectiveness of restricting this particular right. A burden it has failed to meet.
In conversations about Second Amendment rights, for example, the argument from the state is usually about public safety, specifically the recommission of violent crime. Reasonable people can disagree about the merits of allowing someone who has served a felony sentence to own a firearm, and that conversation will usually involve an important discussion of whether it’s wise to treat all felony convictions the same.
But what is the equivalent for voting? What is the state trying to prevent? Maine and Vermont have allowed voting from prison for years, and their democratic processes are fully intact.
An early voting ballot is not a weapon. Voting does not disarm or weaken sentences. If I am convicted of a felony and I am sentenced to ten years in prison, my punishment is ten years in prison.
This above-and-beyond civic exile is unnecessary and unjustified. Allowing people to vote puts no one’s safety at risk, and may actually result in public safety benefits.
